Larina Jacobs-Lamothe v Janet Hendricks, Rona Hendricks-Brown and Bernice Hendricks-Gomes

• Jurisdiction: British Virgin Islands
• Judge: Ellis J.
• Judgment Date: 25 September 2018
• Neutral Citation: VG 2018 HC 11
• Docket Number: Claim No. BVIHCV 2015/0169
• Court: High Court (British Virgin Islands)
• Date: 25 September 2018

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Ellis, J.

Claim No. BVIHCV 2015/0169

Between:

Larina Jacobs – Lamothe

Claimant

and

[1] Janet Hendricks

First Defendant

[2] Rona Anita Hendricks – Brown

Second Defendant

[3] Bernice Hendricks-Gomes

Third Defendant

Appearances:

Ms. Ruthann Richards and Ms. Christina Hart of Maximea and Co. for the Claimant

Ms. Nadine Whyte and Ms. Jamealya Fahie of O'Neal Webster for the Defendants

Probate Law - Whether claimant was entitled to grant of probate — Will discovered after Grant of Letters of Administration — Validity of will — Whether deceased knew and approved of the contents of the will — Whether deceased understood nature and effect of document he signed — Whether execution of will was obtained under undue influence of the claimant — Whether order and Grant of Letters of Administration should be revoked — Whether claimant was entitled to an account and information regarding the administration of the deceased estate — Whether deceased's estate owed money to the claimant — Costs — Smith v. Smith (1866) LR 1 P & D 143 — Thomas v. Hall (1852) 2 Rob 426 — Barry v. Butin (1838) 2 Moo PCC 480 — Re R [1950] 2 All ER 117 — Christian v. Instiful [1954] 1 WLR 253 — Boudh v. Boudh [2008] WTLR 411 — Wilkes v. Wilkes [2006] WTLR 1097 — Kostic v. Chaplin [2007] EWHC 2909.

Ellis J.

1 Sidney Basanul Hendricks (“the Deceased”) died on 7 ^th March 7, 2010 leaving his wife, Adina Hendricks and eight (8) natural children including, Janet Hendricks, the First Defendant, Rona Anita Hendricks-Brown, the Second Defendant, Bernice Hendricks-Gomes, the Third Defendant, Bassanue Hendricks, Sidney Hendricks, Jr., Val Hendricks, Joycelyn Hendricks-Vanterpool and Theresa Hendricks.

2 Mrs. Hendricks had two (2) daughters prior to her marriage to the Deceased; the Claimant, Larina Jacobs-Lamothe and Edith Jacobs. The Claimant is therefore the step daughter of the Deceased and the half-sister of the Defendants.

3 At the date of his death, the Deceased's estate comprised of the following:

• a. A bank account with CIBC First Caribbean International Bank containing approximately $30,000.00;

• b. Real property located at Jost Van Dyke and registered as Parcel 92 of Block 1640A, Jost Van Dyke Registration Section which comprises of the matrimonial home;

• c. A leasehold interest in real property located at Jost Van Dyke registered as Parcel 113 of Block 1640A, Jost Van Dyke Registration Section; and

• d. The Deceased and Mrs. Hendricks also established and operated Sidney's Peace and Love Bar & Restaurant ( the “Restaurant”) in Little Harbour, Jost Van Dyke.

4 Prior to his death, the Deceased had not completely liquidated his debts. He had taken a loan in or around 6 ^th October, 2008 with FirstBank VI (“the Outstanding Loan”), a loan for which the Claimant stood as guarantor. At the date of his death, there was an outstanding balance of $17,000.00.

5 On 18 ^th December, 2014, the Defendants obtained the grant of letters of administration of the Deceased's estate.

6 In January 2015, the Claimant discovered the Last Will & Testament of the Deceased dated 22 ^nd March, 1996 ( “the Will”) in which the Deceased left his entire estate to Mrs. Hendricks for life and upon her death to the Claimant absolutely. 1 The Claimant was also appointed as Executrix. It appears that prior to his death and unknown to the Parties, the Deceased executed the Will on or about 22 ^nd March, 1996 in the presence of two (2) witnesses. The fact of the existence of the Will was unknown to the Parties until it was located in the vault of McW Todman and Co. Law Chambers. 2

7 After discovering the Will, the Claimant filed an exparte application for an order restraining the Defendants from having any further dealings with the Deceased's estate, an order freezing the Deceased's account, and various other orders and declarations.

8 By order dated 30 ^th June, 2015, the Court granted the Claimant an order restraining the Defendants from any further dealings with the Deceased's estate, and his account (the “Injunction”). On 20 ^th July, 2016, the Defendants applied to discharge and/or vary the Injunction. The application was heard on 24 ^th July, 2015 and on that day, the Court:

• a. dismissed the application to discharge the Injunction.

• b. varied the Order by permitting the Defendants and Mrs. Hendricks to continue operating the Restaurant.

• c. made an order for the Defendants to provide monthly accounts.

The Defendants' Case

9 The Defendants' contend that the Will is not valid for the following reasons:

• 1. The Deceased did not know and approve the contents of the Will in that he could not read, and it was not read over to the him;

• 2. The Deceased did not understand the nature and effect of the documents which he signed as he could not read and the contents of the Will were not explained to him; and/or

• 3. The Deceased did not sign the Will freely or voluntarily as the execution of the Will was obtained by the undue influence of the Claimant.

10 In the circumstances, they asserted that the Claimant is not entitled to a grant of probate, nor is she entitled to an order that they account to her for their dealings with the Estate between 2010 and 2014 because she has no interest in the estate. Instead, they contended that the Letters of Administration was properly granted and ought not to be revoked.

11 In the event that the Court finds that the Will is in fact valid, the Defendants submit that the Claimant is only entitled to an order that they account to her from the date of the Letters of Administration as they were not under any duty to account prior to that date.

The Claimant's Case

12 On the other hand, the Claimant asserts that the Will was properly executed as required by law in that the Deceased knew and approved the contents of the Will and was not unduly influenced to execute the same. She submits that the Will should be proved and that a grant of probate should be issued to her as executrix.

13 The Claimant also seeks an order revoking the Letters of Administration granted to the Defendants. The Claimant asserts that the Defendants have assumed the role of administrators even prior to the grant of Letters of Administration and have managed the Restaurant and the Deceased's estate and have co-mingled the funds of the estate with their personal funds. She therefore ask that they provide an account of their dealings with the assets of the Deceased's estate.

14 In a collateral claim, the Claimant also asserts that prior to his death, she guaranteed a loan for the Deceased ( “the 2008 Loan”) and that when he died, there was an outstanding balance of $13,146.38 which was repaid in full from her personal funds. She states that she was repaid the sum of $8,000.00 by Mrs. Hendricks and therefore the estate owes her the remaining amount of $5,146.58.

15 The Defendants however dispute this claim. They contended that the Deceased's estate does not owe the Claimant $5,146.58 or indeed any amount. First, they say that on obtaining the proceeds of the 2008 Loan, the Deceased gave the Claimant $9,000.00 which was used to secure the loan and that she was also given an additional $1,000.00 for her services. Consequently, they submit that the $9,000.00, which was held on her account as security for the 2008 Loan and which was used to repay that loan was the Deceased's money. Finally, they say that following the Deceased's death and at the demand of the Claimant, Mrs. Hendricks paid the Claimant an additional $9,000.00.

ISSUES TO BE DETERMINED

16 In light of the foregoing, the following issues fall for determination:

• 1. Whether the Will is invalid because the Deceased did not know and approve the contents of the Will and/or did not understand the nature and effect of the document which he signed;

• 2. Whether the execution of the Will was obtained under the undue influence of the Claimant;

• 3. Whether the Order and Grant of Letters of Administration dated 18 ^th December, 2014 should be revoked;

• 4. Whether the Claimant is entitled to an account and information regarding the administration of the Deceased's estate and if so, for what period; and

• 5. Whether the Deceased's estate owes the Claimant $5,146.58.

IS THE WILL IS VALID?

Formal Validity

17 Generally, the formal validity of a will depends upon compliance with applicable legislative requirements. In order to be valid under the laws of the Virgin Islands, a will must meet the requirements of section 7 of the Wills Act, Cap 81 of the Laws of the Virgin Islands. This provides that:

“No will shall be valid unless it shall be in writing and executed in manner hereinafter 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 by his direction, and such signature shall be made, of 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.”

18 Section 9 of the Wills Act also provides that:

“Every will shall, so far only as regards the position of the signature of the testator, or of the person signing for him as aforesaid, be deemed valid within the enactment in section 7 as explained by this section, if the signature shall be so placed at, or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such signature to the writing signed as his will…”

19 The evidence before the Court discloses a Last Will and Testament executed by the Deceased on 22 ^nd March, 1996 in the presence of Joanne Turnbull and Dolly Liverpool, legal secretaries employed by the law offices of McW Todman & Co. The initials of the...