Wed | Sep 20, 2017

Laws of Eve | The will is valid!

Published:Monday | August 7, 2017 | 8:00 AM

In disposing of the case of Davis and others v Bennett-Davis [2017] JMSC Civ 44, the learned judge quoted a passage from Lord Neuberger's judgment in the case of Gill v Woodall and others [2010] EWCA Civ 1430 to say that, "Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries ... ." We are certainly familiar with issues of that sort in Jamaica.

In the Davis case, Henry Davis (HD) died on December 26, 2008. He left behind adult children and a widow, the defendant, with whom he had shared an intimate relationship since 1994 and married approximately five months before he died.

HD's children challenged the validity of a will dated September 16, 2008, because he had an earlier will dated July 9, 2006 in which he had made provision for his children and employees. The following facts were cited as reasons to doubt the validity of the 2008 will:

• HD had been diagnosed with a brain tumour, suffered two strokes.

n He had shared a good relationship with his children.

The more recent will had been prepared by an attorney other than the one who had represented him for many years. HD's marriage to the defendant was sudden, secretive and entered into two months before the will was allegedly executed.

The legal grounds relied on for declaring the 2008 will invalid were:

- HD did not have testamentary capacity at the time it was allegedly signed.

- HD did not sign the will.

- If HD did sign the will, he was coerced into doing so.

The learned judge accepted the case of Moonon v Moonan [1963 7] WIR 420 for the following cautionary words: "A stricter proof of knowledge and approval is necessary where there was some weakness in the testator which, though not amounting to incapacity, renders him liable to be made the instrument of those around him, or when the will is at variance with the known affection of the testator or was prepared on verbal instructions only or is at variance with previous declarations." However, based on the evidence presented to the court, it was held that, although HD might have been ill and weak, he was of sound mind, memory and understanding when the 2008 will was executed.

Further, the dissimilarity in signatures on the will was accounted for by the fact that HD was unable to use his dominant hand due to illness and there was no direct or indirect evidence that he was coerced into signing the will. In fact, the learned judge found that the relationship HD shared with his children was not as close as it was said to be.

Two additional matters influenced the ruling:

- a significant portion of HD's estate had been devised to the defendant in the 2006 will; even though at that time they were not married; and

- in May 2008, he gave a Power of Attorney to the defendant, rather than to his children.

When challenging the validity of a will, a litigant must recognise that "a fundamental principle of English law [is] that people should in general be free to leave their property as they choose ...", but in appropriate cases, such challenges can succeed.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.