Livens Elizabeth Lame of Kingstown Park Plaintiffs v Charles Gideon Huggins of Cane Garden Ruby Hyacinth Forde of Kingstown Defendant [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Satrohan Singh J. |
| Judgment Date | 28 May 1990 |
| Judgment citation (vLex) | [1990] ECSC J0528-3 |
| Court | High Court (Saint Vincent) |
| Docket Number | 1984 No. 336 |
| Date | 28 May 1990 |
IN THE HIGH COURT OF JUSTICE
IN THE ESTATE OF ORMOND CYRIL FORDE DECEASED
1984 No. 336
and
This is a claim by the Plaintiffs as Executors named in the last will and testament dated October 1st, 1983 of Ormond Cyril Forde who died on December 21, 1983 that the Court shall pronounce for the force and validity of the said will in solemn form of law, the defendant having entered a caveat and appeared to the warning thereto as the widow and last relict of the deceased and one of the persons entitled to share in the estate of the said deceased in the event of an intestacy.
By way of defence the defendant alleges that the execution of the will was procured by the undue influence of the first named plaintiff which made the deceased not a free agent and the will not a product of his own volition but a will procured by the artifice of the plaintiff. The defence furtherpleads that at the time of the execution of the said will the deceased did not know and approve of its contents thereof, that the will was the product of the first named plaintiff who did not properly explain it to the deceased who did not himself read it. Alternatively, the defence pleads that the deceased memory and understanding were impaired from the influence of drugs and excruciating pain and he was unable to understand the nature of the making of the will or its effect. The defence also pleads that during the lifetime of the deceased he bought and sold properties and led the defendant to believe that the properties were invested with a partnership character and that her proprietary rights and interest in the on going property dealings will be safe guarded, that he would make ample provisions for the defendant's share and interest in the accumulated wealth in the will and the defendant to her detriment took no legal steps during the deceased lifetime to obtain her share and interest in her own name and that the plaintiffs are estopped from denying that the character of the properties which form the estate of the deceased have been altered and they now hold same as trustees for the defendant. Alternatively, the defendant contends that the sum of $15,000 left in the will bears no relationship to the value of the defendant's share and interest in the estate of the deceased and that the Court is entitled in addition to have regard to the provision which the defendant might reasonably have expected to receive if the marriage had ended in divorce.
The defendant therefore counterclaims for:
1. A declaration that the defendant is entitled in her own right to a one half share of the properties which form the estate of the deceased or such other share to the Court seems fit.
2. That the Court shall pronounce against the alleged will propounded by the plaintiffs.
3. An enquiryas to the extent of the entire estate of the deceased and which portions or part thereof form the estate of the deceased on an intestancy and who are the beneficiaries thereof.
4. That the Court shall grant the defendant Letters of Administration of the Estate of the said deceased.
5. That provision be made for the costs.
The Plaintiffs in their reply and defence to the counterclaim deny the allegation of undue influence or that the deceased did not know or approve the contents of the will and pleads that if for any reason this will is not entitled to probate then one of two previous wills made by the deceased naming the said plaintiffs as executors would be entitled to probate i.e. the will dated July 12, 1983 in the alternative the will dated August 23, 1982. She reply also pleads that the deceased and defendant lived separate and apart for upwards of 25 years prior to his death and that the defendant at no time during the lifetime of the deceased either during cohabitation or thereafter put forward any claim to a share or interest in such wealth as the deceased may have accumulated during his lifetime and as such the plaintiffs contend that the defendant has been guilty of prolonged, inordinate and inexcusable delay in seeking the relief claimed in the counterclaim whereby the deceased and /or the plaintiffs have acted to his and/or their prejudice and have otherwise been prejudiced, alternatively, the claim (if any) of the defendant is barred by theStatute of Limitations 1623. The reply further contends that the provision (if any) which the defendant might reasonably have expected to receive if the marriage had ended in divorce is irrelevant to these proceedings.
When this matter came up for hearing on April 8th, 1986 learned Queen's Counsel for the defendant informed the Court that he was not pursuing the defence allegations against the validity of the will pleaded by the plaintiff and that he will only be pursuing the claim mentioned in the counterclaim thatthe defendant is entitled in her own right to a one half share of the properties which formed the estate of the deceased or such other share as the Court seems fit. The matter was then adjourned for the defendant's evidence to be taken on deposition by the Registrar. The hearing proper resumed before this Court on December 1st, 1987 at which time the plaintiff closed its case without leading any evidence. The defence led two witnesses Kenneth Earl Forde, the son of the deceased and the defendant and the defendant's niece Nestor DaSilva, in addition to the evidence of the defendant on the depositions.
After the evidence of Kenneth Earl Forde was finished and before the evidence of Nestor DaSilva was taken Q.C. Sylvester for the defence closed the case for the defence. Mr. Cummings for the Plaintiff was called upon to address the Court but he asked for an adjournment to do so as he had misplaced his notes. This was granted despite objections from Mr. Sylvester. Upon the hearing resuming some three days later Mr. Sylvester for the defence asked the Court's leave to reopen the defence to call one other witness Nestor DaSilva. Mr. Cummings then advised the Court that after mature consideration he was asking for leave for the plaintiffs to now testify. Neither party objected to each other's application and the Court made the order giving leave to the defendant to call one other witness and for the plaintiff to reopen their case and testify. The matter was then again adjourned for this purpose at the request of both parties.
On the resumption, and, after Learned Q.C. for the defence utilising his right under the aforesaid order to have defence witness Nestor DaSilva testify, and, after her testimony was completed and Mr. Cummings, in keeping with the said order sought to have the No. 1 Plaintiff testify, Mr. Sylvester objected on the ground that the Plaintiffs were now seeking to lead rebuttal testimony. I overruled the objection, not only because the order for the Plaintiff to testify was already made without objection and Counsel for the Defendant acted on it when he called his additional witness but also because this Court felt thatit could not have determined the real matter of controversy between the parties in this matter without hearing the evidence of the Plaintiffs. The order made by me for the Plaintiffs to testify was not an order for them to lead rebuttal evidence. The Court's order was in keeping with Mr. Cummings' application that having given the matter mature consideration he felt that the Plaintiff should testify. Additionally, the Defendants having abandoned their attack on the validity of the deceased will, what was really being heard was the counterclaim of the defendant whereby she was plaintiff and the plaintiffs are defendants.
For these reasons, in the interest of Qustice and in the exercise of my judicial discretion, I overruled Mr. Sylvester's submission and allowed the plaintiffs to testify.
Having seen and heard all the witnesses, while I find the evidence of the...
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