Wilson v Roxbury-Smellie et Al

JurisdictionBahamas
CourtSupreme Court
JudgeSmall, J.
Judgment Date17 Jul 2001
Docket Number1113 of 1999

Supreme Court

Small, J.

1113 of 1999

Wilson
and
Roxbury-Smellie et al
Appearance

Miss Jacqueline M. Simmons for the plaintiff.

Mrs. Krystal Rolle and Mr. Wallace Rolle for the defendants.

Will - Probate of will — Whether in accordance with Wills Act — Plaintiff brought action to obtain revocation of grant of probate of will to defendant — Whether will executed in accordance with provisions of Wills Act — Whether signature of alleged will was a forgery — Whether deceased knew and approved of contents of said will — Finding that plaintiff had not discharged burden of proving that will was forged — No evidence that defendant instrumental in preparation of will — Finding that deceased had full knowledge of contents of will and was capable of understanding it — Plaintiff's claim failed and was dismissed — Costs to defendants.

Small, J.
1

On 18 August 1999 the Supreme Court of The Bahamas granted probate of the estate of the late Minah Priscilla Wilson to the defendant, Paulette Roxbury-Smellie, the sole Executrix of the deceased's estate under a will dated 13 July 1998. On 29 September 1999 the plaintiff Holly Wilson, the widower of the deceased, brought this action to obtain revocation of the grant of probate.

2

The plaintiff claims that the will was not executed in accordance with the provisions of the Wills Act and that the signature purporting to be that of the deceased is a forgery. In addition to the revocation of probate he asks for an order that Letters of Administration be granted to him.

3

The plaintiff and the deceased were married for 35 years and had no children of their own. Paulette lived with them from infancy till age 16 when she went to live in Miami, Florida. She was treated as a child of the Wilson family, and the deceased used the term ‘daughter’ in referring to her in the will. She is the sole beneficiary under the will.

4

Three issues were joined on the pleadings. The first was whether the requirements of the Wills Act for the execution of a will were met. Paragraph 5 of the statement of claim pleaded particulars, namely:

  • (a) That such signature was not made by the deceased herself, or by anyone for her, or in her presence, or by her direction.

  • (b) That it was neither so made nor acknowledged by the deceased as her signature in the presence of two witnesses at the same time.

5

The second issue was set out in paragraph 6 which claimed the signature of the alleged will was a forgery and was not the handwriting of the deceased. The third issue was raised in paragraph 7 where the plaintiff alleged,

  • (a) That the deceased did not know and approve of the contents of the will,

  • (b) That she never gave instructions for the will,

  • (c) That it was not read over to her before she executed it, and

  • (d) That she was unaware of its contents and was incapable of appreciating or comprehending the provisions.

6

The defence refuted the allegations in paragraphs 5 6 and 7 of the statement of claim, and put the plaintiff to strict proof of the allegation of forgery.

7

It is convenient to set out the provisions of the relevant legislation at this stage. The Wills Act Chapter 101 of the Statute Laws of The Bahamas was enacted in 1837. Section 9 provides:

“No Will shall be valid unless it shall be in Writing and executed in manner herein-after mentioned; (that is to say,) it shall be signed at the Foot or End thereof by the Testator, or by some other person in his Presence and at his Direction; and such Signature shall be made or acknowledged by the Testator in the Presence of Two or more Witnesses present at the same Time, and such Witnesses shall attest and shall subscribe the Will in the Presence of the Testator, but no Form of Attestation shall be necessary.”

8

At the start of this action counsel agreed that the defendant should begin. In Hutley and Another v. Grimstone and Another (1878) 4 P D 24 Sir J Hannen said

“As far as my experience extends, it has been the practice of the court to grant the right to begin to the person propounding the last will; and it is based upon reasons of convenience, which the court is entitled and bound to consider. A testator often executes numerous wills, and the court might be engaged in investigating the validity of a series, all of which would be of no importance whatever if the last will were established to be the true will; if the inquiry begins at any other point in the series, much time and labour might be thrown away, and it might be still necessary to investigate the last will. For these reasons I think the defendants are entitled to begin.”

9

The first witness was Catherine Louis, one of the persons who witnessed the disputed will. She is a friend and co-worker of Paulette and she met the deceased about eight years prior to her death. She visited the deceased at Jackson Memorial Hospital several times each week, sometimes with Paulette and sometimes on her own. Most of her visits were during her lunch hour as the hospital was only ten minutes away from her workplace. During one of the visits in July 1998, when she was not accompanied by Paulette, the deceased told her that she wished to make a will so that Paulette would be able to inherit benefits that would accrue after her death. Since the plaintiff's allegations cast suspicion on the preparation of the will, I set out an extract from her examination-in-chief by Mrs. Rolle.

Q. Can you tell the court what she said to you with reference to the preparation of a will?

A. She told me that she would like to have a will so her daughter would be able to inherit some of her benefits. She said because she was employed as a nurse she would like Paulette to have money to bury her and pay her telephone bill because she was upset that she had seen one of Paulette telephone bills. She said because Paulette had been so nice and take care of her. From Paulette came to America she could always call on Paulette.

10

The witness contacted Kareen Watson; a notary public who worked at the court in Miami and the deceased gave instructions for the preparation of a will.

Q. Can you tell the court what she told Ms Watson

A. She told Miss Watson she would like Paulette to inherit whatever little she have coming to her from her job retirement benefit. She said whatever little she have to come to go to her. She would like Paulette to inherit to help her pay her bills. This is what Minah said to Kareen.

11

The draft instructions were written and read to the deceased who agreed that they represented her wishes. Ms Watson returned to the hospital on 13 July 1998 when she completed the preparation of the will. The will was read to the deceased by Miss Watson and was executed by the deceased in the presence of the attesting witness Catherine Louis and Angella Taylor. While Miss Louis was being examined in chief, before she was shown the will she said that she signed first, Angella second and the deceased last. When she was shown the will (Exhibit D1) she stated that the order of signing was the deceased followed by herself and Angella as attesting witnesses and the notary, Kareen Watson.

12

These are the contents of the will:

THE LAST WILL AND TESTAMENT
OF
MINAH PRISCILLA WILSON

I, MINAH PRISCILLA WILSON, a resident of Deadman's Cay, Long Island, Bahamas, of sound mind, memory and understanding, realising the certainty of death and the uncertainty of the time thereof, do make and declare this instrument, in writing as and for my LAST WILL AND TESTAMENT, expressly revoking all former wills and codicils at any time made by me.

I constitute and appoint PAULETTE ROXBURY-SMELLIE OF MIAMI, FLORIDA as Executrix of this my Last Will and Testament. My Executrix shall be authorized and able to carry out all the provisions of this Will and pay my just debts, obligations and funeral expenses. I hereby direct that she shall not be required to post security Bond in this or any other jurisdiction, for the faithful performance of her duties, and direct that no expert appraisal be made of my estate unless required by law

I hereby give, bequeath and devise unto my daughter PAULETTE ROXBURY-SMELLIE all my right, real and personal, or mixed, of which I may die, seized or possessed, or which I may be entitled to, including my pension/gratuity and all my household furnishings, monies in the bank Or elsewhere.

IN WITNESS WHEREOF, I have hereto set my hand this 13'h day of JULY 1998 in the presence of the witnesses hereto attesting

M.P. Wilson

MINAH PRISCILLA WILSON

The foregoing instrument, was on the 13th day of JULY 1998, subscribed, signed, and has been declared or signified by MINAH PRISCILLA WILSON to be her LAST WILL AND TESTAMENT, in our presence and in the presence of each other, and at the same time, at Her request, we subscribed our names as attesting witnesses

Sgd. Catherine Louis

Catherine Louis

residing at 13985 NW 22nd Place, Florida 33055

Sgd. Angella Taylor

Angella Taylor

residing at 1250 NW 95th Street, Florida 33137

Subscribed and sworn to before me this 13th day of July 1998

KAREEN A WATSON

My Comm Exp 5/14/99

Bonded By Service Ins

No cc463333

Sgd. K Watson

Notary Public

Bahamian Passport 8071492

13

Catherine testified that the words “Bahamian Passport # 8071492” were written by Kareen Watson after the deceased produced her passport in response to Watson's request for some 'proof that you are Minah Priscilla Wilson.'

14

The deceased handed the will to Catherine and gave her instructions that she should keep it in a safe place. Catherine promised her that she would not let Paulette know of its existence. It was not till after the deceased was buried in Long Island, and Paulette returned to Miami from the funeral, that the will was given to her.

15

Miss Simmons cross-examined Catherine about whether she was certain that the deceased was in hospital continuously for 5 to 6 months. She responded that the deceased was in and out during the...

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