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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2018-01898
LENNOX MOORE
Claimant
AND
KIRT BERNARD also called KIRT ANTHONY BERNARD
First Defendant
HEATHER MOORE BERNARD
Second Defendant
BEFORE THE HONOURABLE MADAME JUSTICE JOAN CHARLES
Appearances:
Claimant: Ms. Amanda La Caille instructed by Mr. Albert Edwards
Defendant: Mr. Phillip A. Wilson instructed by Mr. Richard D. Taylor
Date of Delivery: 1st July, 2020
JUDGMENT
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THE CLAIM
[1] The Claimant, an unrepresented litigant, sought the following Orders:
a. That the Court pronounce against the force and validity of a
purported Will and Testament of one Theodora Matilda Moore (the
deceased), dated 17th November 2014 by reason of the fact that at
the time of execution of the said will the deceased lacked the
capacity to understand the nature and effect of the document she
was executing as a result of her poor health.
b. That the Grant of Probate of the said will be set aside.
c. That any Deed of Assent in relation to the property situate at Lot No.
1 LP 60 Old Agua Santa Road Wallerfield, Arima, be declared null
and void and the Registrar be directed to expunge any such deed
from the Register of Deeds.
d. A declaration that he has a share and interest in the said property
by virtue of being a beneficiary of the estate of the legal and
beneficial owner Vincent Moore, the husband of the deceased and
the Claimant’s and Second Defendant’s father.
[2] The Claimant pleaded that he was a son of the deceased and one of the
beneficiaries of her estate. It is his case that the deceased died intestate
since the purported will executed by her was obtained by the Second
Defendant at a time when the deceased lacked the capacity to execute a
will. He asserted that from one year before said execution, the deceased
suffered from the effects of diabetes and a stroke. She could not walk
unaided and had lost the use of her right hand.1The Claimant averred that
the deceased could not take care of her personal hygiene and was assisted
by himself or a nurse to bathe and perform her ablutions; further, that she
had lost control over her bowel movements.
1 Paragraph 4 Statement of Case
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[3] The Claimant pleaded2 that the deceased had stopped reading and writing
and was unable to knowingly affix her signature to any document or to
carry on a conversation with any person. Mr. Moore asserted that the
deceased did not obtain any independent legal advice before purportedly
executing the said will. He claimed further that in the latter part of 20143,
he observed the Second Defendant guiding the deceased’s hand on a sheet
of paper. He observed further that the contents of the document on which
the Second Defendant was assisting the deceased to write, was not read
her or explained to the deceased before her signature was affixed thereon
afterward.
[4] The Claimant averred that the said property was solely owned by his father
who died intestate leaving the deceased and three children including the
Claimant and the Second Defendant. He claimed that he therefore has an
interest in the estate of his father Vincent Moore, which has not been
administered to date. The Defendants meanwhile undertook works on the
said property, confining him to a room of the house. They also built
ponds in order to rear tilapia on the said premises.
THE DEFENCE AND COUNTERCLAIM
[5] The Defendants denied that the deceased was incapable of executing the
said will by reason of ill health or want of mental capacity; they put the
Claimant to strict proof on this averment. While the Defendants admitted
that the Claimant had suffered a stroke in or about the year 2002, they
denied that her health was so impacted that she could not walk unaided.
The Defendants asserted that the Claimant walked with a cane, went to
church regularly and attended the weddings of two of her grandchildren.
2 Paragraph 5 Statement of Case 3 Paragraph 6 Statement of Case
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The Defendants admitted that they hired a nurse in 2014 to care for the
deceased while they were abroad; her duties included helping the
deceased in the bathroom and ensuring that she took her prescribed
medication and diet as directed by her doctor. They however denied that
the deceased was cared for by the Claimant at night as he asserted.
[6] The Defendants, who lived with the deceased at the time, continued to
retain the services of the nurse upon their return to Trinidad since the
Second Defendant left for work at 6:00a.m. and returned at 6:00p.m.
everyday. She prepared the deceased’s dinner and the latter did not
require any special care at night.
[7] The Defendants denied that the deceased was ill-treated by the nurse and
that this ill treatment required the Claimant’s intervention. Indeed, they
alleged that the Claimant was aggressive toward the caregiver, and when
the First Defendant intervened, the former assaulted him. It was also
pleaded that the Claimant gave the deceased food which he knew that
the latter was forbidden to eat, and caused garbage to pile up in the house
posing a health hazard; when asked to desist by the Defendants he became
aggressive towards them.
[8] It was further averred that the deceased began using her thumbprint on
documents since 2010.
[9] In answer to the Claimant’s claim that the said property belonged solely to
his father, Vincent Moore, the Defendants asserted the following:
a. The deceased migrated to the USA in 1987 where she worked for
seven (7) years in order to purchase land and build a house thereon.
b. From 1987 to 1994 she sent monies to her husband Vincent, a
licensed carpenter, who constructed the house with the help of his
brother Paul Patrice (deceased) a mason, nephew Victor
Braithwaithe, a plumber. A three bedroom, one bathroom concrete
dwelling home was built.
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c. The house was built with the money sent by the deceased and it was
considered to be hers. The house was jointly owned.
d. The Claimant never assisted in building the house. Indeed he left in
1995 after he struck his father and only returned to the house after
his father died in 2002. The joint tenancy was not severed before
their father’s death in 2012; their mother, the survivor, was
therefore sole owner.
e. The land on which the house was built is State Agricultural Lands
in respect of which there is no deed. Further, pursuant to the
covenants in the Standard Agricultural Lease they are required to
use seventy-five percent of the said lands for agricultural
purposes. In compliance with this requirement, they engaged
in tilapia production in 2011, with the consent of the deceased. The
Defendants have applied for and await a new lease from the
Commissioner of State Lands.
[10] On the 8th April 2018 the Claimant, acting in concert with several masked
men attempted to break down the door of the said house which the
Defendants occupied at the time; they only desisted when the police,
whom the Defendants had called, were close to the home. Further, the
Claimant also damaged the electrical wiring installed by the Defendants to
ensure a supply of electricity to the farm.
[11] The Defendants counterclaimed for Orders that:
a. The Court pronounce in favour of the Will of the deceased in solemn
form.
b. That the subject property form part of the estate of Theodora Matilda
Moore deceased.
c. A declaration that the Claimant is a trespasser on the subject land.
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[12] The Claimant filed a Reply by which he denied all allegations of assault
against the Defendants and the caretaker. He also denied striking his
father, although he admitted leaving the home in 1995 to take up a job.
[13] He denied that the said house was built with monies sent by the deceased
and pleaded that his father Vincent Moore built the house from the
proceeds of sale of a twenty acre farm which he previously owned. He
therefore denied that the house was held by the deceased and Vincent as
joint tenants.
[14] The Claimant averred that the Second Defendant, in her application for
Letters of Administration of Victor’s estate, listed the said property as
forming the only asset in his estate.
EVIDENCE
[15] The Claimant filed a Witness Statement as did the two Defendants and Mr.
Lucas, attorney at law. They were all cross-examined.
Mr. Lennox Moore
[16] The Claimant asserted that he gave his mother money whenever he earned
income even though her mind was not sound. He acknowledged that the
lease on which the said house was built expired in 1998 while his father
was alive and he was twenty six years old.
[17] He admitted that his mother was able to recognize him and his siblings as
well as visitors from the church, during the period that he alleged that she
lacked the capacity to execute the purported will; further, that she did not
need medication at night as he had said in his Witness Statement.
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[18] In answer to counsel, Mr. Moore stated that he was sitting in the living
room when the Defendants brought ‘a paper for the deceased to sign’. He
could not say what she signed on that occasion nor when the will was
executed but was sure that his mother was forced to sign the will.
EVIDENCE FOR THE DEFENCE
Kirt Bernard
[19] Mr. Bernard asserted that he and the Second Defendant moved into the
said premises after they were married in 1995 and built an annex thereon.
[20] He testified that the deceased had suffered a stroke in 2002 which affected
her mobility and to some extent her speech. However she walked with the
aid of a cane but spoke quite clearly. He also stated that the deceased
instructed him to contact Mr. Lucas, attorney at law, in order to have him
prepare her will.
[21] On the day of the execution of the will, he, the Second Defendant, his
mother and their pastor were present with Mr. Lucas. The deceased had
determined that the pastor and the Second Defendant’s mother should be
the witnesses to the will.
[22] He admitted that despite being in receipt of the Grant of Probate of the
deceased’s estate, he had not distributed said estate.
Heather Moore-Bernard
[23] This Defendant denied that she was present at the time of the execution
of the will, contradicting her husband’s testimony on the issue. She
later stated that she may have been in the house but not in the same
room.
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[24] She acknowledged that the property included in the Inventory filed in her
Application for Probate of her mother’s estate was the said property. She
also admitted that she did not disclose in her affidavit in support of the
application for Letters of Administration of her father’s estate that she had
siblings, including her brother, the Claimant. Mrs. Bernard asserted,
however, that she gave her attorney those instructions. This witness
testified that she was advised that her mother was the only beneficiary of
the lease, since the subject lands belonged to the State and this was the
reason why she did not disclose the existence of her siblings. She also
stated that the fact that the lease, which was in her father’s name, had to
be regularized was the reason why the Inventory in the application for
Letters of Administration of his Estate only included the land – not the
house.
[25] She admitted that her father contributed the lion’s share of the cost of
building the house from his income as a farmer, taxi driver and
woodworker. The Second Defendant also admitted that the photographs of
her mother that she attached to her Witness Statement were taken ‘many
years’ before her stroke. She acknowledged that she had attached no
photographs of the deceased after 2002. Mrs. Bernard revealed that the
deceased was incontinent and wore adult diapers at the time she executed
the purported will.
[26] Mrs. Bernard disclosed that her lawyer ‘ran a test’ to determine whether
her mother was able to write a will; however, she could not give any details
of the said test, including whether he did administer the test. Although
Mrs. Bernard claimed that her mother sent money to build the house, she
could not say what sum was sent.
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Wendell Lucas
[27] This witness, an attorney at law, testified that he knew the deceased and
her family because his wife went to school with the Second Defendant and
he developed a relationship with the deceased as a result. Mr. Lucas
testified that the Second Defendant was present when he went to the
deceased’s home.
[28] He also testified that at the time that he took instructions from the
deceased for the preparation of the will, he did not know the value of the
estate. He stated that while the deceased told him that she owned a Unit
Trust account and the balance in that account, he could not recall asking
the deceased if she had a beneficiary on the Unit Trust account. Mr. Lucas
indicated that he took instructions from the Executor with respect to the
Inventory of the deceased’s estate.
[29] He denied that the Defendants were present at the execution of the will.
Mr. Lucas testified that he read the contents of the will to the deceased
and she appeared to understand same, even though he did not state this
in the will.
[30] The attorney asserted that he knew that the deceased was elderly – in her
seventies and ill; however based on his interaction with her before the
execution of the will on the same day, he did not consider that a
doctor’s report was necessary. He acknowledged that he failed to attach a
proper attestation clause in the will.
ANALYSIS AND CONCLUSION
[31] From the evidence before me it is clear that Vincent Moore was the sole
lessee of the land on which the subject house was built. The undisputed
evidence is that Vincent built the house on the land with some financial
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contribution from the deceased. No evidence was adduced before me with
respect to the extent of this contribution – all the Second Defendant could
say is that her father made a far greater contribution toward the
construction of the said house.
[32] In the circumstances I hold that the house on the subject property was
owned by Lennox Moore and the deceased as tenants in common. As a
consequence, upon the death of Lennox in 2002, the deceased would have
been entitled to a one half share in the house and the three siblings
including the Claimant and the Second Defendant the remaining half
share. The fact that the Second Defendant, in her application for Letters
of Administration of Lennox Moore’s estate deposed that he was the sole
owner thereof cannot change the legal reality that he was not in fact sole
owner but jointly owned the house as tenant in common with the
deceased. The lease for the subject land had expired in 1998 and had not
been renewed.
[33] On the issue of the validity of the purported will and specifically, whether
the deceased had the mental capacity to execute said will I have taken into
consideration the following undisputed facts:
i. The deceased was an elderly person, some seventy years of age at
the time of execution of the said will.
ii. The deceased’s health was poor due to a stroke she suffered in 2002
and a steady decline in health since then – she could not care for
herself – attend to her ablutions, cook or feed herself; and was
unable to affix her signature to a document.
iii. No medical report was obtained prior to the execution of the will in
order to determine whether she had the capacity and
understanding to give instructions for the preparation of a will or to
execute a will.
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iv. The deceased’s will indicated that she had an account with money
at the Unit Trust Corporation but this was not the case.
v. The attorney who prepared the will obtained information about the
size of the deceased’s estate from the First Defendant and executor
of the purported will.
vi. There is no evidence that the attorney read and explained the terms
of the will to the deceased or verified that its contents met her
approval.
vii. There is no evidence that Mr. Lucas obtained written instructions
from the deceased prior to drafting the will.
[34] It is trite law that the onus of proving the will lies on the party propounding
it. That party must satisfy the Court that the instrument so propounded
is the last will of a free and capable Testator.4
[35] Where, however, there are circumstances which excite the suspicion of the
Court, the Court ought not to pronounce in favour of the will unless the
suspicion is removed so that the Court is satisfied that the will propounded
does express the true will of the deceased.5
[36] The circumstances which have been held in the past to excite the suspicion
of the Court include those relating to the preparation of the will, its
intrinsic terms and the circumstances of its preparation and execution.6
[37] Applying these principles to the facts of this case, I concluded that the
circumstances surrounding the preparation and execution of the
purported will to be suspicious; these suspicions were not removed by the
Defendants who were propounding the will. I therefore determined that
I must pronounce against its force and validity and set aside the Grant of
Probate.
4 Moonan v Moonan 1965 7 WIR per Wooding CJ 5 Barry v Butler 2 Moo P.C. 480 6 Visham Lalla v Suruj John Lalla Civil Appeal No 102 of 2003
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[38] The deceased was both elderly and infirm, having suffered a stroke in
2000 which left her physically impaired in that she could not walk without
a cane, had grave difficulty in signing her name, had been placed on a
restrictive diet, prescribed medication and could not care for herself. She
needed assistance to use the bathroom and was cared for by a nurse. It
was incumbent on the Defendants to have the deceased medically
examined in order to ensure that she had the capacity and understanding
to know that she was disposing of her property by will, the extent of the
property that she was disposing, the claims to which she ought to give
effect, and to properly appreciate the consequence and effect of the
documents she was executing.7
[39] There was also clear evidence that the deceased did not understand the
extent of the property of which she was disposing. Mr. Lucas testified that
he obtained instructions from the Second Defendant with respect to the
content of the Inventory of the deceased’s estate, suggesting that she was
unable to provide those instructions at the time that she executed the
will. Further, Mr. Lucas also testified that the deceased told him that she
was the holder of an account at the Unit trust Corporation – however no
evidence of the existence of such an account was produced before me.
[40] Significantly, the will does not contain an attestation clause to the effect
that the will was read over to this elderly and physically impaired testator;
this excited my suspicion as to whether she knew and understood its
contents or had the testamentary capacity to execute said will.8 There is
no evidence that the will was read over and explained to the Testator, or
that she knew and understood the extent of her estate.9
[41] Further, Mr. Lucas never stated in his Witness Statement that he read
over the will to the deceased and that she appeared to understand or
7 Banks v Goodfellow 1870 LR 5 QB 549 8 Daisy George v Lisa Natasha Estrada CV 2008 3140 9 Doreen Fernandes v Monica Ramjohn Thadeau and Ors CV2006-00305
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understood its effect, that she was disposing of her property or knew the
extent of such property or claims on her bounty to which she should give
effect. He made this assertion during cross-examination, but his failure to
do so in his Witness Statement, or to affix an attestation clause to the will
caused me to attribute no weight to this evidence.
[42] I also took into account the fact that there was no evidence that Mr. Lucas
took written instructions from the deceased before preparing the will. In
his witness statement he testified baldly that he ‘took instructions from
her (the deceased)’ but did not indicate whether these instructions were in
writing. Before this Court he indicated that he made notes which were not
adduced in evidence before this Court.
[43] I therefore hold that:
i. The deceased lacked testamentary capacity and was unable to give
instructions for the preparation of the purported will.
ii. The circumstances surrounding the preparation and execution of
the said will excites suspicion that the contents of the will do not
express the Deceased’s testamentary intentions.
[44] I therefore pronounce against the validity of the purported will dated 17th
March 2014 and make the following Orders:
i. That the Grant of Probate of the will of Theodora Moore otherwise
Theadora Moore otherwise Theodora Matilda Moore dated 8th
September 2017 is hereby set aside.
ii. It is hereby declared that:
a. The deceased died intestate the owner of a one half share of
the house situate at Agra Santa Road Wallerfield.
b. That any Deed of Assent in relation to the property situate at
Lot No. 1 LP 60 Old Agua Santa Road Wallerfield, Arima, be
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declared null and void and the Registrar be directed to
expunge any such deed from the Register of Deeds.
c. The Claimant and Second Defendant are each entitled to a
one-third share in their father’s one-half share in the house.
iii. I grant an Injunction restraining the Claimant from harassing or
interfering with the Defendants’ use and occupation of the subject
property.
iv. Each party to bear their own costs.
Joan Charles
Judge