[1] Marguerite Desir [2] Marguerite Desir (Qua Executrix of the Will of the late Albertha Bella Butcher) Appellants v Sabina James Alcide Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: Mitchell JA [AG.]
• Judgment Date: 18 September 2012
• Judgment citation (vLex): [2012] ECSC J0918-2
• Date: 18 September 2012
• Court: Court of Appeal (Saint Lucia)
• Docket Number: HCVAP 2011/0030

[2012] ECSC J0918-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

The Hon. Mde. Gertel Thom Justice of Appeal [Ag.]

HCVAP 2011/0030

Between:

[1] Marguerite Desir

[2] Marguerite Desir (Qua Executrix of the Will of the late Albertha Bella Butcher)

Appellants

and

Sabina James Alcide

Respondent

Appearances:

Mr. Peter Foster, Diana Thomas with him, for the appellants

Mr. Dexter Theodore, Eaghan Modeste with him, for the respondent

Civil appeal — Saint Lucia Civil Code — Undue influence — Improbation of a deed — Bias on the part of the trial judge — One attorney as notary signing deed for vendor — Second attorney as friend and confidant of purchaser advising vendor on preparation of documents transferring vendor's property to purchaser — Vendor an ill and wealthy person dying shortly after the properties were transferred — The two attorneys subject to rigorous cross-examination at trial on how they performed their roles — Duty of an attorney-at-law who witnesses the signature of an elderly and infirm party on a deed of conveyance — Need for judge to make a finding on the issue — No evidence of bias on part of judge.

A very wealthy but ill, elderly and incapacitated lady opened a joint account with a younger lady into which she placed substantial funds. She gave instructions to a Notary to prepare her last Will in which she left most of her property to the young lady. She had the Notary prepare a general power of attorney over all her business and private affairs in favour of the younger lady. She formed through the Notary a company to which she had two shares issued to the younger lady and two shares to herself. She transferred to this company her major asset, a Parcel of land valued at over $7 million, for the expressed consideration of $644,000.00. On this Parcel of land were commercial warehouses producing income of some $65,000.00 per month. She was, due to illness, unable to sign the deed of conveyance. The deed was signed by another Notary for her and on her behalf before the first Notary. Shortly thereafter she died. Her niece, who had an expectation to be a major beneficiary to her estate, on learning she had been essentially disinherited, though she remained a minor heir, filed a claim against the younger lady alleging either fraud or undue influence on her part. She subsequently sought improbation of the deed. Both Notaries filed witness statements and appeared as witnesses for the younger lady. At the trial, both Notaries were subject to intense cross-examination as to the way they performed their roles. The judge did not find fraud on the part of the young lady but did find undue influence on her part over the deceased. He expressed strong criticism of the two Notaries for the way in which they had conducted themselves. He found that the opening of the joint account and the conveyance of the property had been achieved by the younger lady as the result of undue influence over the deceased and that the deceased had not intended the younger lady to become the owner of her monies and her property. He ordered the younger lady to account to the niece, and he ordered the deed of transfer improbated.

Held: allowing the appeal in part and quashing the order for the improbation of the deed, while dismissing the appeal against the finding of undue influence, and dismissing the appeal as regards bias shown by the judge, and awarding one half of the costs in the court below to the appellant:

• 1. The learned trial judge properly applied the common law on undue influence to the facts as found by him, and the appeal against this part of his judgment is dismissed.

  Polinere and Others v Felicien (2000) 56 WIR 264; Stoneham and Tewkesbury (United Districts) v Ouellet [1979] 2 S.C.R 172; and Archambault v Archambault [1902] AC 575 considered

  Murray v Deubery and Another (1996) 52 WIR 147; and Egger v Egger St. Lucia High Court Civil Appeal No. 17 of 2002 (Delivered 26 ^th April 2002, unreported), applied.

• 2. A deed in Saint Lucia may only be improbated if all parties to it are joined in the litigation. The failure to join the two notaries who participated in the signing and execution of the impugned deed rendered the action for improbation impossible.

  Civil Code, Article 1142; and the Code of Civil Procedure, Article 148 and Article 179 applied

  Immeubles Canton Ltd v Imperial Oil Ltd [1975] J.Q. no 51; Gingras v Poulin [1929] Q.J. No 3 or 48 B.R. 410 or No 1873 (S.C. 1452); Brossard v Brossard [1926] JQ No 6 or 41 BR 484; Burland v Moffatt (1885) 11 S.C.R. 76 followed.

• 3. The fact that a company is owned and controlled by a party to an action does not avoid the necessity of joining the company as a party to the action where one of the remedies sought is the deprivation of property or the affecting of the rights of the company. The failure to join the company which was the purchaser under the deed as a party to the action further rendered the action for improbation impossible.

  Salomon v Salomon (1897) AC 22; and Code of Civil Procedure, Article 148 applied.

• 4. Bias is not shown by a trial judge severely criticizing witnesses and parties when he makes harsh and severe findings against their conduct if such findings are required by the pleadings, the nature and direction of the cross-examination of witnesses, or his findings as to their conduct.

• 5. An attorney-at-law who witnesses the signature of an elderly and infirm party on a deed of conveyance must prepare to be questioned about the steps he took to ensure he was not being used as part of an enterprise to defraud or harm the individual or his or her family. A careful lawyer is well advised not to prepare, far less witness, a deed or transfer form for such a person in circumstances that are capable of raising the slightest suspicion without demanding a medical certificate relating to the person.

• 6. An attorney, far less a Notary Royal, who is called on to sign a deed of conveyance on behalf of a party who is not able to write her name due to age and infirmity must expect to be questioned in due course on oath about the circumstances in which he so acted. One would ordinarily expect the attorney, as with any qualified, and ordinarily competent and careful solicitor, to make a written note of the circumstances, the questions he asked the party to ascertain if she was aware of all the implications of the transaction, and the answers that showed him she fully and voluntarily consented to it. The attorney would carefully preserve the contemporaneous note for production in the event that he is called on to testify, perhaps many years later, as to the circumstances that existed at the time. In a suitable case, a careful attorney might even send a subsequent letter to the client confirming the instructions that had been received, the advice that had been given, and any action that had been taken. A filed copy of that letter would be carefully retained to substantiate the attorney's response to a claim of negligence or improper conduct. An attorney-at-law is a learned person, advising a client for a fee on the contents of a document whose execution he is witnessing, he is not a lay person merely witnessing a signature over the counter.

  Hawkins v Clayton (1988) 164 CLR 539 applied.

Mitchell JA [AG.]

1 When Albertha Bella Butcher died in Saint Lucia on 13 ^th April 2007 she had been ill and in failing health for some years. Her husband Epiphane Butcher had died on 1 ^st November 2005 in Venezuela, and she had no children of her own. Her favourite niece, Sabina James Alcide, had emigrated to the USA and was stuck there unable to leave because of immigration issues. She principally relied on Marguerite Desir to assist her in her business and personal affairs. When she died, she left surviving her in Saint Lucia various close relatives, including her mother, her sister, her brother, nieces, nephews, and cousins.

2 In their earlier years, she and her late husband had been successful business persons and had acquired substantial assets in Saint Lucia. One was a property with commercial warehouses on it held by her in her name and registered as Parcel No 1257B 6. It was valued in 2005 at $7,442,726.00.

3 In 1974, when Mrs. Alcide was only a few months old, she was taken in by her aunt, Mrs. Butcher, who raised her as her own child. In 1981 Mrs. Butcher migrated to Texas in the USA leaving Mrs. Alcide behind and did not return to Saint Lucia until 1994. In 2002 Mrs. Alcide herself emigrated to the United States to further her education with financial support from Mrs Butcher. She remained there, unable to leave the USA because of immigration complications. When she married in the year 2003, Mrs. Butcher attended her wedding in the USA. Similarly, in 2004, after the birth of her daughter, Mrs. Butcher came to visit her in the USA. They never saw each other again, but it was not disputed that they remained close and frequently spoke over the telephone.

4 During Mrs Butcher's last illness, and at her funeral, Mrs. Alcide was represented by her husband as she was not in a position to be able to travel out of the USA. She testified that during her lifetime Mrs. Butcher repeatedly told her and others that everything which she owned would upon her death be passed on to her. Mrs. Alcide expected, from what Mrs. Butcher told her, that she would be one of Mrs. Butcher's heirs after her death. Mrs. Alcide did not know of Mrs. Desir until on 9 November 2005 she received a telephone call from someone in Saint Lucia who identified herself as Marguerite Desir and who told her that she was handling some matters for Mrs. Butcher. That would have been just over a week after Mr. Butcher's death.

5 Mrs. Desir testified that she knew Mrs. Butcher from the time that she was a child of 12...