Elvira McDonald et Al v Nigel Maloney

• Jurisdiction: St Vincent and the Grenadines
• Judge: Thom J
• Judgment Date: 19 June 2025
• Judgment citation (vLex): [2025] ECSC J0203-3
• Court: High Court (Saint Vincent)
• Year: 2025
• Docket Number: CLAIM NO. SVGHCV2012/0043

Between:

Elvira McDonald Yvette Maloney

Claimants

and

Nigel Maloney

Defendant

Before:

Her Ladyship the Hon. Justice Gertel Thom (Ag.)

CLAIM NO. SVGHCV2012/0043

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mrs. Patricia Marks-Minors of Counsel for the Claimants

Mr. Art Williams of Counsel for the Defendant

JUDGEMENT

Thom J (Ag):

INTRODUCTION

1 The parties to this claim are the descendants of Adina Maloney (the testatrix) who died on the 30th day of March 2010. The testatrix had several children and grandchildren. The First Claimant is the daughter of the testatrix, while the second claimant is the granddaughter of the testatrix. The defendant is the grandson of the testatrix.

2 On the 21st day of December 2010, probate of the estate of the testatrix was granted to the defendant in relation to a will of the testatrix dated 22nd October 2003.

3 The Claimants instituted these proceedings in which they seek among other things, revocation of the grant of the said probate No. 246 of 2010, that the defendant be restrained from distributing any part of the estate of the testatrix; a declaration that the last will and testament of the testatrix dated 5th January 2010 be deemed valid.

4 The Claimants claim that the testatrix in the 2010 will changedher executors and, in some instances, the beneficiaries of her estate. The Claimants further claim that the 2010 will, being the later will, it superseded the will of 22nd October 2003 in which probate was granted to the defendant.

5 The defendant in his defence and counterclaim contended that he had no knowledge of the 2010 will. It was only when he was served with this suit that he became aware of the defendant's contention that the deceased had made the 2010 will. He contended further that the 2010 will was fraudulent since the deceased suffered from dementia and was confined to her bed and could not move her hands. Further the signature of the testatrixas appears on the 2010 will is not the signature of the testatrix. In his counterclaim he seeks among other things a declaration that the 2010 will is void and of no effect, the 2003 will is valid and is the last will of the testatrix.

ISSUE

6 The only live issue in this case is whether the testatrix was of sound mind, memory and understanding at the time when the 2010 will was made.

7 It is not disputed that the burden of proof is on the claimants. It is also common ground that whether the testatrix had testamentary capacity at the time of making the 2010 will is a question of fact.

THE EVIDENCE

8 The claimants both testified and called three witness, Monica Maloney, Chezley Scipio and Veronica Trotman. The defendant testified and called two witnesses, Veno Maloney and Dr. Michael St. A. Goodluck.

Evidence of the Claimants

Elvira McDonald

9 Mrs. McDonald testified that she is one of the executors of the 2010 will. The Defendant is her nephew, being the son of her sister Veno Maloney.

10 Her sister Monica Maloney lived with the testatrix until her death. Mrs. McDonald lived in the United Kingdom for 25 years before returning to St. Vincent in 1986. She testified further that she always had a close relationship with the testatrix. While resident in the United Kingdom she occasionally sent money for the testatrix. After she returned to St. Vincent, she visited the testatrix and spoke with her regularly on the telephone. She assisted her with her personal affairs and helped her when she was administering her father's estate.

11 On 5 ^th January 2010, while at her home, the testatrix telephoned her and expressed her desire to make a new will since Mr. Trotman who had witnessed her will had died. She went to the testatrix's home and found her in her room. The testatrix told her all that she wanted in her will, and she wrote it down. One of Monica's grandchildren typed up the will. She read it back to the testatrix, who agreed with the contents and signed the will.

12 The testatrix had also sent for Mrs. Veronica Trotman and Mr. Chezley Scipio. They were present when the testatrix stated her wishes. They also witnessed the testatrix sign the will and they also signed. Mrs. Trotman is a Justice of the Peace and a very good friend of the testatrix. Mr. Chezley Scipio is a family member and friend of the testatrix. After the funeral of the testatrix, the members of the family including Veno Maloney gathered at the testatrix's home for the reading of the 2010 will.

13 Under cross-examination Mrs. McDonald agreed that she was not on speaking terms with her sister Veno Maloney. She had permitted Veno Maloney to live in her house while she lived in the United Kingdom and Veno Maloney was claiming ownership of the house. She denied that this dispute caused the testatrix to not have a good relationship with her. She agreed that when the testatrix decided to make the 2010 will she got a copy of the 2000 will from Mrs. Trotman. The testatrix did not mention that she had made a will in 2003. She only became aware of the 2003 will after the testatrix died. She could not recall all the names mentioned in the 2010 will. Mrs. McDonald acknowledged that while the 2010 will stated that the testatrix's home was given to Sharon Maloney, the testatrix had already given the house to Sharon Maloney; but she stated further that the testatrix instructed her to write it down in the 2010 will and she wrote it down.

14 Ms. McDonald denied the testatrix was senile and bedridden. She acknowledged that the testatrix did not give anything to Yvette Maloney in the 2000 will. The deceased had given Yvette's mother Viva Maloney land in Harmoney Hall. She further testified that the testatrix did not give her instructions to give Yvette Maloney anything in the 2010 will. She was shown the 2010 will and agreed Yvette's name was there; and added it was there because the testatrix would have so instructed.

Yvette Maloney

15 Yvette Maloney is the daughter of Viva Maloney and granddaughter of the testatrix. She testified that although she lived in the USA, she had a close relationship with the testatrix her grandmother. She spoke with her at least twice per week by telephone and she organized her 90th birthday party. During 2009 December, while visiting St. Vincent, there was an argument between Veno Maloney and Jerry Maloney at the testatrix's home. After the argument, the testatrix directed her to visit her cousin Williams a lawyer and inform him of her desire to change her will. Mr. Williams was busy, but he gave her certain directions. About a week later, the testatrix made the 2010 will in the presence of a Justice of the Peace Mrs. Veronica Trotman and Mr. Chezley Scipio as directed by Mr. Williams.

16 Elvira McDonald wrote down the testatrix's instructions. The instructions were typed and then read over to her, and she agreed with the contents and signed the will. Mr. Scipio and Mrs. Trotman then signed.

17 Yvette Maloney further testified that while the testatrix was getting older, she was still holding conversations with her family and friends and had no difficulty recognizing persons.

18 Under cross-examination she reiterated that her grandmother the testatrix gave the instructions and her aunt Elvira McDonald wrote down the instructions. Yvette Maloney could not recall every instruction given by the testatrix to Elvira McDonald. She only became aware of the 2003 will sometime after the 2010 will was read. Yvette Maloney denied the testatrix was bedridden but testified that the testatrix needed assistance, since she could not walk around on her own such as walking down the stairs.

Defendant's Evidence

Monica Maloney

19 Monica Maloney testified that she is the daughter of the testatrix. She lived with the testatrix all her life and she still reside at the testatrix's former home at Stubbs. She took care of the testatrix. The testatrix suffered from hypertension and visited the district clinic where Dr. Verony attended to her. The testatrix also saw Dr. Goodluck about twice.

20 On 5th January 2010, the testatrix made her will in the presence of Mrs. Veronica Trotman, Mr. Chezley Scipio and Yvette Maloney. The testatrix gave instructions to Elvira Maloney, and she wrote down the instructions. Monica Maloney testified further that she was not present throughout the making of the will. When the testatrix was giving the instructions, Elvira McDonald was writing down the instructions. After the funeral the family including Veno Maloney gathered at the testatrix's former home in Stubbs and the 2010 will was read. Veno Maloney was upset.

21 Under cross-examination Monica Maloney testified that the testatrix was not upset with Elvira McDonald. Rather it was Veno who was claiming Elvira Mc Donald's house. She denied that the 2003 will was a valid will. She denied the signature was the testatrix's signature. She noted that the witnesses were the Attorney-at-law Mr. Moet Malcolm's secretaries. She stated Mr. Malcolm never visited the testatrix's home and the testatrix never visited Mr. Malcolm's office. The testatrix did not do anything without telling her. She was her caretaker. She denied that Veno Maloney assisted in taking care of the testatrix. The testatrix saw Dr. Goodluck at the Stubbs clinic. The testatrix also saw nurse Cynthia Bedwell at the Stubbs clinic.

22 Monica Maloney further testified that she left the roomafter about 10–15 minutes when the testatrix was giving the instructions for the will, but she was present when the will was signedby the testatrix. She denied that the testatrix was senile. She reiterated that she lived with the testatrixand took care of her needs.

Veronica Trotman

23 Mrs. Trotman testified that she is a Justice of the Peace. She knew the testatrix all her life. She visited the testatrix every few weeks. She did not observe her to have any problems with her memory. The testatrix was able to converse...