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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