Sherise Hamilton v Lanatha D. Williams (a.k.a) Dynell Williams
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 14 September 2022 |
| Year | 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2018 PRO/cpr/00055 |
In the Matter of the Grant of Probate by the Supreme Court of the Common Wealth of the Bahamas in the Estate of Virginia Ethylyn Ferguson A.K.A Ethylyn Virginia Ferguson (Deceased) Dated The 26 th Day of June 2018
And in the Matter of the Wills Act, 2002
And in the Matter of the Probate and Administration of Estates Act, 2011
And in the Matter of the Probate and Administration of Estates Rules 11
and
and
and
(The purported Executrixes and Trustees of the Estate of the late Virginia Ethylyn Ferguson (a.k.a) Ethylyn Virginia Ferguson and in their personal capacity)
The Honourable Madam Justice G. Diane Stewart
2018 PRO/cpr/00055
Common Law & Equity Division
IN THE SUPREME COURT
Mr. Wellington Olander for the Plaintiff
Mrs. Lenise Flowers for the Defendant
By a writ of Summons filed on November 30 th, 2018, the Plaintiff seeks
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ix. An Order restraining the Defendants, their servants, agents or whosoever from disposing of the property of the late Virginia Ethylyn Ferguson a.k.a Ethylyn Virginia Ferguson who died on the 5 th day of January, 2018
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x. For an accounting of the assets of the Estate of the late Virginia Ethylyn Ferguson a.k.a Ethylyn Virginia Ferguson from this 5 th day of January 2018 to present
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xi. Order that the grant of probate issued by the Supreme Court be revoked
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xii. For Declaration propounding the last Will and Testament dated 28 th February, 2017 on the grounds that it was executed under suspicious circumstances and/or undue influence and/or is fraudulent
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xiii. For further or other interim relief as this Honourable Court deems just
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xiv. That the Defendants bear the costs of this application
By an ex-parte summons filed 24 th October, 2018, (“The Plaintiff's Summons”), the Plaintiff sought an injunction for the following:-
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i. Restraining the Defendants, her servants, agents or whosoever from disposing of property of the late Virginia Ethylyn Ferguson a.k.a Ethylyn Virginia Ferguson who died on 5 th January, 2018
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ii. For an accounting of the assets of the Estate of the late Virginia Ethylyn Ferguson a.k.a Ethylyn Virginia Ferguson from this 5 th day of January 2018 to present
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iii. That the grant of probate issued by the Supreme Court be revoked
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iv. For further or other interim relief as this Honourable Court deems just
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v. That the Defendants bear the costs of this application
This summons was supported by the affidavit of Sherise Hamilton filed the 24 th October, 2018.
The Court granted the Plaintiffs an Interim Ex- parte injunction against the Second Defendant on the 14 th December, 2018 until the 19 th December to enable the Plaintiffs to serve the First Defendant and pending the inter partes hearing of the application for the injunction.
This interim injunction was granted against the First Defendant on 19 th December, 2018 until the determination of the inter partes hearing.
On 14 th February, 2019, the parties agreed to vary the injunction to allow the Second Defendant to utilize the sum of $50,863.48 to continue the business of Caribbean International Uniforms a business which had been started by the late Virginia Ethylyn Ferguson, the mother of the Plaintiff and the Defendant.
On 25 th March, 2019 the Defendants filed a summons seeking that the Plaintiffs Writ be struck out on the following grounds:-
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i. The application of the Plaintiffs for contentious probate relief is not in conformity with Rule 32 of the Probate and Administration of Estates Rules, 2011
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ii. The rule is mandatory
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iii. Any other ground as this Honourable Court sees fit and
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iv. That costs be provided for, to be taxed if not agreed
The Court ruled that the application to strike out be dismissed and allowed the Plaintiffs to amend their Writ of Summons to comply with Rule 32 of the Probate and Administration of Estate Rules.
The Plaintiffs initial counsel withdrew from the record and the Summons was adjourned to allow the Plaintiffs to retain new counsel.
The Affidavits of both the First and Second Defendants were filed on 11 th January, 2019. The Second Defendant filed a supplemental Affidavit on 8 th February, 2019.
The Plaintiffs filed the Affidavits of Amos Ferguson, Emerson Rolle and Kensington Rolle on 12 th March, 2019. The Second Affidavit of Sherise Hamilton and the Affidavit of Viscount Ferguson were filed on 14 th March, 2019.
The Second Defendant filed a Second Supplemental Affidavit on 25 th April, 2019 and in response to all of the affidavits filed on behalf of the Plaintiffs a Third Supplemental Affidavit on the 31 st May, 2019.
The late Virginia Ethylyn Ferguson a.k.a Ethylyn Virginia Ferguson (“The Deceased and/or Testatrix”), was an entrepreneur who carried on the business of making uniforms for the public under the name of Caribbean International Uniforms (“CIU”).
The Deceased died on 5 th January, 2018. In early February, 2017 she was diagnosed with cancer, and soon thereafter, was instructed by the Second Defendant, Kriska Simmons to leave her home in Maple Street, Pinewood Gardens and move to the Second Defendant's home Westwinds Subdivision.
The Deceased travelled between The Bahamas and the United Stated for medical treatment.
Prior to her death, the Deceased had executed her Last Will and Testament in February, 2017. After her death the Will was submitted to the Supreme Court for a grant of probate in probate action number 273 of 2018. The grant was issued on 26 th June, 2018 to the Defendants as executors of the Estate of the Deceased.
A Caveat was filed on 16 th March, 2018 in the probate action.
All of the parties to this action are beneficiaries under the purported Will but with different gifts.
The Registrar of the Supreme Court has since recalled the grant of probate.
The Court granted the interim order on 15 th January, 2019 and ordered that the Second Defendant her servants, agents be restrained from disposing of the property of the Testatrix. This Order was varied on 25 th April, 2019 to allow the Second Defendant to utilize the funds held by Gibson & Associates for the continued operation of CIU provided that the Second Defendant gives a full accounting of the use of the said funds.
The Deceased was diagnosed with stage 4 cancer in early February, 2017. She requested that she leave her home and move in with the Second Defendant at her home. She travelled regularly between The Bahamas and the United States seeing medical treatment.
The circumstances surrounding the preparation and execution of the Deceased's last Will are suspicious. It is her understanding that the Deceased did not personally give the Attorney who prepared the purported Will the instructions for the will, rather it was the Second Defendant who gave the instructions. The Plaintiffs allege that the Deceased did not have a copy of the purported Will in her possession despite making several requests to obtain a copy of the same.
The Plaintiff is convinced that the Deceased was adamant that the contents of the Will were not her true last wishes and did not approve the contents of the Will and made several requests for the Second Defendant to call the Attorney who prepared the Will to have the Will amended to reflect her last wishes.
The Deceased was under the physical control of the Second Defendant, which caused difficulties by the Plaintiff in obtaining access to the Deceased to ensure that the Will was executed according to her wishes. There were several excuses by the Second Defendant why the Attorney was unable to make the amendments to the Will as requested by the Deceased.
On 4 th January, 2018, the Deceased requested that all of her children be present at her bedside. She stated that the Will was not what she wanted as her last wishes and that she needed a lawyer to come right away to have the changes made to be fair to all of her children and to make everyone happy. The Second Defendant said that the Attorney was also at the home on the 4 th January, 2018 and found that the Deceased did not have the mental capacity to amend her Will. The Plaintiff allege that the mother was mentally capable until the day of her demise. They were unable to have another Attorney take instructions from the Deceased prior to her demise because she was constantly under the care and control of the Second Defendant. The Second Defendant often prohibited the Deceased from taking any calls and/or visitors.
The purported Will was the fruit of fraud and duress.
In March, 2019, the Plaintiff instructed Davis & Co. to lodge a caveat against the estate of the late Virginia Ethylyn Ferguson a.k.a Ethylyn Virginia Ferguson and which was lodged on the 16 th March, 2018.
The Defendants have taken no steps to remove the caveat and a subsequent caveat was filed on 18 th September, 2018. Notwithstanding this the Defendants were able to obtain a Grant of Probate which is in contravention of the Probate and Administration of Estates Act and Rules.
The Will which was admitted to Probate was not the same Will read to the children of the Deceased at Gibson & Co. It is the Plaintiff's understanding that changes were made to the Will after her passing.
The Testatrix and the Second Plaintiff, Amos Luther Ferguson were married but separated when the children were young.
Mrs. Hamilton recalled that she and her mother were very close and that her children loved being around the Testatrix and affectionately called her mommy rather than...
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