Iotha Peters v Chantel Peters et al

THE EASTERN CARIBBEAN SUPREME COURT ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE CLAIM NO.: ANUHCV2020/0254 BETWEEN: IOTHA PETERS Claimant And [1] CHANTEL PETERS [2] LYNETTE PALMER Defendants Appearances: Mr. Charlesworth M. Tabor for the Claimant Mr. Lawrence Daniels for the First Defendant Ms. Mary White for the Second Defendant ------------------------------------- 2024: March 24th 2025: July 25th ------------------------------------- JUDGMENT

[1]WILLIAMS, J.: This claim relates to the estate of Mr. Ian Peters aka. Wesley Peters (hereinafter “the deceased”). The deceased died on October 30th, 2019, and in his lifetime, he allegedly executed two wills, one in 2016 and the other in 2019. These proceedings concern the will allegedly executed on 14th June 2019.

[2]The claimant Iotha Peters is the deceased’s sister and the executor and sole beneficiary of his estate pursuant to the purported will dated 14th June 2019. The first defendant Lynette Palmer was married to the deceased and seeks declarations that she is entitled to an interest in certain properties which the deceased owned in Antigua. Finally, the second defendant Chantel Peters is the deceased’s daughter and sole executor and beneficiary pursuant to the purported will dated 20th June 2016.

The Claim

[3]The claimant by way of Fixed Date Claim Form filed on 21st July 2020 sought the following relief: A. A declaration that the Will dated 14th June,2019 is valid and that the claimant is the lawful executor and beneficiary thereunder; B. An order that the claimant is entitled to apply for the grant of probate in respect of the estate of the late Ian Peters aka Ian Wesley Peters; and C. An Order setting aside the caveats dated 20th day of January,2020 entered on behalf of the first defendant and the 22nd day of January 2020 entered on behalf of the second defendant.

Statement of Claim

[4]The Statement of Claim alleges that the deceased died on 30th October 2019 leaving a will dated 14th June 2019 pursuant to which she is named as sole executor and beneficiary. The deceased was born in Antigua and migrated to the United States of America in about 1964. He made a living repairing distressed properties for sale or rent and owned a business called Lincoln Auto Parts.

[5]The deceased returned to Antigua and resided there for about eight years until he was hospitalized at Mount St. John’s Medical Centre (now St. Lester Bird Medical Centre). After being advised to seek treatment overseas, the claimant and the deceased travelled to New York on 25th February 2019. Once in New York, he was admitted to the Long Island Jewish Medical Centre where he underwent heart valve replacement surgery.

[6]In April 2019, the deceased was discharged from the Long Island Jewish Medical Centre and transferred to the Sunharbour Rehabilitation Centre located at Roslyn Heights, New York. At the date of his discharge, the deceased complained to the claimant that his daughter, the second defendant had neglected him throughout his hospital stay.

[7]The claimant avers that it was during that time that she had a conversation with the deceased who disclosed to her that he intended to move from New York to Maryland to receive out-patient care. She claims that the deceased stated that funds for his outpatient care would have been provided under his insurance policy and a female friend whose name he had not disclosed would also assist.

[8]Further, the claimant avers that the deceased also stated that his accommodation expenses in Maryland would have been paid by his daughter Chantel, out of the proceeds from rent she collected on his behalf in New York. The claimant also alleges that on 25th April 2019, the deceased executed a Power of Attorney in her favour.

[9]The claimant avers that she returned to Antigua on 27th April 2019 and the deceased moved from New York to Maryland on or about 4th May 2019. On or about 10th May 2019 the claimant alleges that the deceased called her in a distressed state indicating that funds from his insurance company were not forthcoming. He also complained that his daughter the second defendant was not answering his calls. The claimant’s adopted son Steve Joseph then allegedly brought $5000.00 from New York to Maryland for the deceased to cover his medical expenses. The second defendant also sent funds to Maryland from New York by money order.

[10]The claimant avers that on 7th June 2019 the deceased gave instructions via WhatsApp call to attorney-at-law Mr. Harold Lovell to prepare a will. The will was prepared in Antigua and delivered to one Mr. Anthony Harris a family friend. The claimant alleges that the said will was duly executed in the presence of two witnesses and a notary public who travelled from New York to Maryland to do so.

[11]The claimant avers that on 11th June 2019 she travelled from Antigua to New York and then on 13th July 2019 to Maryland to visit the deceased. One week later the claimant took the deceased from Maryland to New York where he was readmitted to the Long Island Jewish Medical Centre. The claimant returned to Antigua the following month.

[12]In August 2019 the deceased was discharged from Long Island Jewish Medical Centre and entered the Workmen’s Circle Multicare Centre in the Bronx. The claimant returned to New York on 24th August 2019 and visited the deceased on a daily basis. The deceased’s health continued to deteriorate and had to be taken to Montefiore Hospital. The claimant alleges that she visited the deceased daily at that hospital. The deceased was admitted to the intensive care unit of the hospital on 16th October 2019 and passed away on 29th October 2019.

[13]On 20th December 2019 the claimant submitted an application for the grant of probate. On the 20th and 22nd of January 2020, separate caveats were filed on behalf of the first and second defendants respectively.

Defence and Counterclaim of the First Defendant

[14]The first defendant filed a Defence and Counterclaim on September 1st, 2020. The first defendant alleges that she was married to the deceased for over fifteen years and is thus his lawful widow. The first defendant denied that the deceased earned a living from retrofitting distressed properties but rather as a car salesman until she met him in 1986. From that point they shared an intimate relationship and entered into joint ventures of buying and selling real estate for their benefit to be shared equally. Thus, the first defendant submits that she is entitled to a half share in all the properties acquired in Antigua by the deceased during the course of their marriage.

[15]Additionally, the first defendant submits that she is entitled to a half-share of all funds in a bank account at the Antigua Commercial Bank, which according to her had been used by the deceased to send money from America to conduct business in Antigua. She further alleges that she travelled with the deceased on numerous occasions to Antigua, specifically in 1997, 2000, 2005, 2009 and 2015. The first defendant recalled that they discussed purchasing a home in Seaview Farm but due to the first defendant not being an Antiguan citizen, that said property was registered solely in the deceased’s name.

[16]She also denies that the claimant accompanied the deceased to New York for treatment or that the deceased had a valve replacement surgery to his heart. She accepts that the deceased had been transferred from the Long Island Jewish Medical Centre to Sunharbour Manor. However, the first defendant is adamant that all the deceased’s care, support, transportation and food had been provided by her and her family members and the second defendant. Furthermore, she transported the deceased to and from therapy at her own cost and also transported him for dialysis treatment.

[17]The first defendant alleges that the will of 14th June 2019 lacks validity and is null and void as she only knows of the 2016 will prepared by Ms. Sherrie-Ann Bradshaw. Furthermore, it is submitted that no Notary Public nor witnesses visited the deceased on 14th June 2019 as alleged as the deceased had dialysis treatment on that day in Maryland.

[18]It is the first defendant’s claim that while dating the deceased between 1986 and 2000, they pooled their monies together and purchased properties as investments. They purchased their first property in 1998 from Mr. John I Martin for the sum of EC$150,000.00. However, the first defendant did not have Antiguan citizenship and as such it had been agreed that it was easier to put that property in the sole name of the deceased who was a citizen of Antigua and Barbuda.

[19]Further, after the first defendant and the deceased got married in October 2000, they purchased properties in the United States of America, St. Croix and Antigua. However, some of those properties were re-sold and monies from the sales were invested in Antigua. She states that it had always been mutually agreed and understood that the properties purchased were jointly owned despite all the properties being registered solely in the deceased’s name. The properties are identified as follows:

Registration Section

Block Number

Parcel Number

Five Islands

54 1489A

1290 & 1291

Central

14 2288A

Barnes Hill & Coolidge

41 2094A

Cassada Gardens

42 1894A

Hodges Bay & Thibou

43 1869A

English Harbour

35 2580A

Claimant’s Reply and Defence to Counterclaim

[20]The claimant filed a Reply and Defence to the Counterclaim on 29th September 2020. In it, the claimant maintains her position as to the facts as set out in the Statement of Claim and puts the first defendant to strict proof thereof. She further avers that on the death certificate of the deceased describes his marital status as being divorced. The Claimant submitted that the will dated 14th June 2019 is in keeping with the laws of Antigua and Barbuda. Therefore, the first defendant is not entitled to any share of the properties in Antigua.

Trial

[21]Trial of this matter took place on the 22nd of March 2024. Two witnesses gave sworn evidence at the trial namely the claimant and the first defendant. Written closing submissions were filed by the parties on 15th April,2024.

Claimant’s Evidence

Iotha Peters

[22]The claimant’s evidence-in- chief was given by witness statement filed on the 4th of November 2022. The claimant’s witness statement is very similar to what was stated in the Statement of Claim and thus will not be repeated in the interest of brevity.

[23]Under cross-examination, the claimant accepted that the 2019 will had been prepared in Antigua, though the deceased had not been in Antigua at that time. When questioned as to whether said will had been read to the deceased, Ms. Peters stated that she would not be able to answer that.

[24]Further the claimant strongly stated that she had not been aware that her late brother had been married to the first defendant. However, when directed to the marriage certificate evidencing marriage between the deceased and the first defendant, the claimant admitted that the address of Linden Blvd, New York stated in the said certificate was one of the addresses that belonged to the deceased.

[25]Counsel for the second defendant Ms. White, questioned the claimant as to her first encounter with the first defendant. The claimant recalled that the first encounter she had with the first defendant occurred at a cricket match in Antigua in 1997, where the deceased introduced the first defendant as a friend. The claimant further stated that the only other time that she saw the first defendant was at the deceased's funeral. It was put to her that she knew of the relationship between the deceased and the first defendant and that she knew of their marriage in 2000. The claimant strongly denied this.

[26]In re-examination, the claimant stated that during the period of 2013-2018 when her late brother acquired properties in Antigua, she had never seen the first defendant with him.

Defendant’s Evidence

Lynette Palmer

[27]The first defendant gave her evidence-in-chief by witness statement filed on the 3rd of October 2022. As with the claimant, the witness statement recites the same facts contained in her defence and counterclaim. This therefore will not be repeated but aspects of it will be examined in more detail later in this decision.

[28]Under cross-examination, the first defendant indicated that she and the deceased had formed a good relationship from the moment they met, although they never held a joint account. She explained to the court that she did make an attempt to set up said account in Antigua but she had been told by the bank that for her to have access to one, it required her to have a local address and local ID. Mr. Tabor counsel for the claimant suggested to her that there had never been any “pooling of resources between her and the deceased.” She replied that the pooling of resources consisted of the deceased taking money from her account and placing it into his account.

[29]The first defendant testified that she has never lived permanently in Antigua but had made several trips there with her late husband. She submitted that the deceased also owned properties in the Virgin Islands but that said properties had been registered in the deceased's name only. Counsel for the claimant suggested to her that she was an American citizen and thus the properties in the Virgin Islands could have been registered jointly with the deceased. She stated however, that she trusted her late husband explicitly, therefore after discussions with him, she allowed him to register the properties in the Virgin Islands in his sole name.

[30]The first defendant reiterated throughout her testimony that she had a great relationship with the deceased whom she trusted and with whom she discussed any and everything. She accepted that from as early as when the first property was being purchased in Antigua, she was aware that she would require a licence to obtain registered title. Mr. Tabor suggested to her that acquiring an alien’s licence in Antigua would have been “a piece of cake” as the deceased was of Antiguan nationality. However, the first defendant asserted that she did not find going through that process to be necessary.

[31]The second defendant’s counsel Ms. White inquired from the first defendant as to why the deceased as a savvy and competent businessman did not make arrangements to protect his wife’s interests? In response, the first defendant reiterated that she and the deceased always discussed their ventures and investments and that she trusted the deceased explicitly. Ms. White also put to the first defendant that it was strange that two purported wills had been created by the deceased but that neither mentioned her name at all. The first defendant stated that she could not speak on such matters as she did not know of the existence of any of the alleged wills.

[32]In re-examination, the first defendant stated that to the best of her knowledge, she knew that the deceased, when he visited Antigua, would stay at his mother’s property, the property in Seaview Farm and at his brother’s property for a short while after the deceased's mother’s house was burned down. She confirmed that she never acquired Antiguan citizenship and neither had she applied for said citizenship.

[33]The court pointed out to the first defendant that she was not mentioned in the deceased’s funeral programme considering that she was his wife. The first defendant indicated that the news of the deceased’s death came through a phone call where an individual expressed condolences on her husband’s passing. Thus, the first defendant indicated that she had played no role in planning the deceased’s funeral and commented that she had been shocked that the second defendant had not informed her of his passing.

[34]The court also pointed out that the deceased’s death certificate describes him as being divorced at his death. The first defendant clarified that she had gotten that document corrected by the New York authorities but confessed that the corrected document had not been disclosed in these proceedings.

Issues

[35]The issues to be decided before this court are as follows: 1. Whether the purported will dated June 14th, 2019, was validly executed? 2. Whether the deceased knew and approved of its contents? 3. Whether the Claimant is entitled to a grant of probate regarding the estate of the deceased? 4. Whether the First-named defendant is entitled to a half share, beneficial and legal interest of the deceased’s properties in Antigua?

Discussion

[36]The first three issues identified above are interconnected and will be examined together. The will dated 14th June 2019 which the claimant wishes to have pronounced in solemn form names her as sole executor and beneficiary. In Alvarez v. Chandler1 Wooding CJ stated as follows: “Probate in solemn form requires proof in the action therefor that the will in respect of which probate is granted is the true and last will of the testator.”

[37]Section 7 of the Wills Act2 provides: “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, or 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.”

[38]The will of 14th June 2019 on its face appears to be validly executed in accordance with section 7 of the Wills Act quoted above this, as it appears to have been signed by the deceased in the presence of a notary and two witnesses. In Alvarez v. Chandler3 the court stated: “It is quite true that, in the absence of evidence to the contrary, a will which is shown to have been executed and attested in the manner prescribed by law, and which appears to be rational on the face of it, is presumed to be that of a person of competent understanding: Symes v. Green (5); but, once there is evidence before the court which casts doubt upon the validity of that presumption in any case, its conscience cannot, or should not, be satisfied without some affirmative proof”

[39]In Barry v Butlin,4 Parke B said that there were two rules. The first was that the person preparing a will— ‘Must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”

[40]In Tyrell v Painton5, Lindley LJ referring to Barry v. Butlin and other authorities stated: “The rule laid down in those cases is not confined to the single case in which a will is prepared by or on the instructions of the person taking a benefit under it, but extends to all cases where, as I have said, there are circumstances which arouse the suspicion of the court.”

[41]In Davis v Mayhew6 the court stated: "The wide definition of suspicion stated by Lindley LJ, in Tyrell v Painton ... that it 'extends to all cases in which circumstances exist which excite the suspicion of the court' appears to have been used in reference to the preparation of the will, its intrinsic terms, and the circumstances surrounding its preparation and execution.”

[42]In Leroy Silston v. Ruthlyn Chambers7 Michel J (as he then was) summarized the relevant principles as follows: “The doctrine started off as being limited to the circumstance of an attorney preparing a will under which he got a significant benefit, then progressed to include any person involved in the preparation of a will under which he got a significant benefit, and further progressed to include any circumstance in which the preparation of the will, its intrinsic terms and the circumstances surrounding its preparation and execution should and does excite the suspicion of the court.”

[43]The first defendant has raised several concerns in relation to the execution of the purported will of 14th June 2019. In the court’s view there a few of these which excite the suspicion of the court. Firstly, it is not clear where the purported will was executed. In her statement of claim the claimant alleges that the witnessing Notary travelled to Maryland to witness the will. However, the will itself does not state whether it was executed in Maryland, New York or elsewhere.

[44]Secondly, there is no evidence from the Notary or the other attesting witnesses as to the circumstances in which the will was executed. These persons have not come forward to state that the will was read over to the deceased and that he confirmed that its contents were consistent with his intentions. In addition, although the claimant states that instructions were given to Attorney-at-Law Mr. Harold Lovell to prepare the will. However, there is no evidence from Mr. Lovell himself to confirm that he actually received these instructions from the deceased.

[45]Finally, there is evidence from the first defendant which has been disclosed and exhibited that the deceased was undergoing dialysis treatment at Maryland Nephrology, L.C.C on 14th June 2019, the very day the will was purportedly executed. This evidence was not seriously challenged and there is no reason to doubt it. This raises the concern of whether the deceased could have executed the purported will at all. In the absence of testimony from any of the witnesses the court is reluctant to hold that the will is valid.

[46]Therefore, in the face of these doubts the court cannot pronounce in favour of the purported will dated 14th June 2019. The claimant has not discharged the burden which rests upon her to prove that the will was in fact executed and attested in the manner prescribed by law. Further there is no evidence that at the time of the will’s alleged execution that the deceased knew and approved of its contents.

[47]There is a purported will in favour of the second defendant which was allegedly executed in 2016. However, the second defendant failed to file a defence to the claim and also did not file a witness statement. Further even when this court gave the parties an extension of time of approximately ten days to file affidavits of testamentary scripts, counsel for the second defendant Ms. Mary White failed to cause one to be filed. It was only on the morning of trial that Ms. White made an oral application for an extension of time to file said affidavit. This would have necessitated a further delay in the commencement of trial and the application was accordingly refused.

[48]The lack of compliance with the Civil Procedure Rules and Case Management directions by the second defendant seems to be caused by her attorney-at-law Ms. Mary White not fulfilling the responsibilities owed to her client. This is regrettable as it would have been useful to hear the second defendant’s perspective on this matter. The result is that the 2016 will is not in evidence and the estate of the deceased Ian Wesley Peters shall devolve as an intestacy. Whether the First-named defendant is entitled to a half share, beneficial and legal interest of the deceased’s properties in Antigua?

[49]The first defendant is claiming a half-share in respect of several properties owned by the deceased in Antigua. The properties are all registered in the sole name of the deceased and appear to have been purchased between 2003 and 2018.

[50]Baroness Hale of Richmond in Stack v Dowden8 summarized the applicable principles in respect of beneficial ownership as follows: ‘Just as the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all.’

[51]Thus, the burden is on the first defendant to prove that she has an interest in the various properties in Antigua. In Abbott v. Abbott9 the Privy Council provided guidance on the approach to be adopted as follows: “There are, of course, two separate questions: first, was it intended that the parties should share the beneficial interest in a property conveyed to one of them only; and second, if it was so intended, in what proportions was it intended that they share the beneficial interest?”

[52]In Oxley v Hissock10 the court observed that: ‘…the second question to be answered in cases of this nature is “what is the extent of the parties’ respective beneficial interests in the property?” Again, in many such cases, the answer will be provided by evidence of what they said and did at the time of the acquisition. But, in a case where there is no evidence of any discussion between them as to the amount of the share which each was to have – and even in a case where the evidence is that there was no discussion on that point – the question still requires an answer. It must now be accepted that (at least in this Court and below) the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property. And, in that context, “the whole course of dealing between them in relation to the property” includes the arrangements which they make from time to time in order to meet the outgoings (for example, mortgage contributions, council tax and utilities, repairs, insurance and housekeeping) which have to be met if they are to live in the property as their home.’

[53]The properties in issue are all held in the sole name of the deceased, Mr. Ian Peters. It is the first defendant’s evidence that she had formed an intimate relationship with the deceased from 1986 until their marriage in 2000. She states that the “deceased and I used our resources to purchase several properties after we got married in October 2000.11” The first defendant continues, “After the deceased and I got married, we continued our intimate relationship as husband and wife and the deceased made decisions concerning investments in the United States of America, St. Croix and Antigua.

Some of these properties were re-sold. Some of the monies we made were invested in

Antigua.”12

[54]In terms of the source of the funds used to purchase the properties, the claimant alleges that she banked their monies at Bank of America and Antigua Commercial Bank. According to the first defendant, her earnings rose from US$4000.00 monthly and were capped at US$8000.00 monthly when she retired. She claimed that the deceased would send monies from America to the Antigua Commercial Bank account to conduct business in Antigua. She claims that when he died there was over one hundred thousand dollars in the account but provides no further details of said account.

[55]She alleges that they discussed purchasing a home in Seaview Farm which was subsequently purchased. The second defendant alleges that her daughter and the deceased spent holidays there in 2015. The second defendant therefore claims a half share beneficial interest in each and every property acquired during the course of her relationship with the deceased. In terms of why the properties were registered in the deceased’s name only, she claims that this was because she was not an Antiguan citizen.

[56]The first defendant appears to be basing her entitlement to a half share in the properties on her alleged contributions to the purchase of the said properties. However, the second defendant has not given any details as to how much she contributed to the alleged pooling of resources. The second defendant has not provided any documentary evidence such as transfers or bank statements from her Bank of America Account to substantiate her claim that she contributed any monies towards the purchase of the said properties. It would be thought that even though the second defendant might be unable to account for every dollar which she gave her husband, she should reasonably have proof of at least some transfers.

[57]In Stack v Dowden the UK Supreme Court outlined the applicable principle as follows: “The law has indeed moved on in response to changing social and economic conditions. The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.13

[58]The burden of proof is on the first defendant to prove the common intention as the basis of the alleged beneficial interest in the properties. I have already found that the first defendant has given insufficient evidence of any direct financial contributions towards purchase of the properties.

[59]It is only necessary to make brief mention of the first defendant’s alleged interest in the deceased’s account at Antigua Commercial Bank. Firstly, she has provided no documentary evidence as to whether the account exists at all. Secondly, she has not even estimated the extent of any of her alleged contributions to said account. Thus, any claim in respect of the deceased’s bank account is manifestly unsustainable.

[60]Apart from this, the parties overall conduct gives the impression of persons married in name only. The deceased and the first defendant seemed to have maintained separate residences, separate finances and lived largely separate lives. In this regard it is not disputed that the deceased resided in Antigua for years with the first defendant only visiting. The first defendant was also not even aware when the deceased passed away and no mention at all is made of her either on the death certificate or the funeral programme. As Mr. Tabor colourfully put in cross-examination, the first defendant “played a cameo role” in the deceased’s life. I agree. It is therefore difficult to infer a common intention in such a relationship.

[61]Therefore, the first defendant’s counterclaim must be dismissed. However, assuming that she can prove that she was still married to the deceased at the date of his death, she may be a beneficiary in his estate which must now devolve as an intestacy pursuant to the Intestate Estates Act.14 Costs

[62]The claimant’s claim has failed in its entirety and so has the first defendant’s counterclaim. The second defendant took little part in these proceedings having not filed a defence or an affidavit of testamentary scripts. Accordingly, the appropriate order in this matter will be for the parties to bear their own costs.

Order

[63]The court therefore orders as follows: 1. The court pronounces against the force and validity of the purported Last Will and Testament of the deceased Ian Wesley Peters dated 14th June 2019 and the estate of said deceased shall devolve as on an intestacy. 2. The counterclaim filed by the first defendant is dismissed in its entirety. 3. The caveats dated the 20th day of January 2020 on behalf of the first defendant and on the 22nd day of January 2020 on behalf of the second defendant are hereby set aside. 4. No order as to costs.

[64]The court apologizes for the delay in delivery of this decision.

Rene Williams

High Court Judge

By The Court

Registrar

THE EASTERN CARIBBEAN SUPREME COURT ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE CLAIM NO.: ANUHCV2020/0254 BETWEEN: IOTHA PETERS Claimant And

[1]CHANTEL Peters

[2]LYNETTE PALMER Defendants Appearances: Mr. Charlesworth M. Tabor for The claimant Mr. Lawrence Daniels for The first defendant Ms. Mary White for the second defendant ————————————- 2024: March 24th 2025: July 25th ————————————- JUDGMENT

[1]WILLIAMS, J.: This Claim relates to the estate of Mr. Ian Peters aka. Wesley Peters (hereinafter “the deceased”). The deceased died on October 30th, 2019, and in his lifetime, he allegedly executed two wills, one in 2016 and the other in 2019. These proceedings concern the will allegedly executed on 14th June 2019.

[3]The claimant by way of Fixed Date Claim Form filed on 21st July 2020 sought the following relief: A. A declaration that the Will dated 14th June,2019 is valid and that the claimant is the lawful executor and beneficiary thereunder; B. An order that the claimant is entitled to apply for the grant of probate in respect of the estate of the late Ian Peters aka Ian Wesley Peters; and C. An Order setting aside the caveats dated 20th day of January,2020 entered on behalf of the first defendant and the 22nd day of January 2020 entered on behalf of the second defendant. Statement of Claim

[4]The Statement of Claim alleges that the deceased died on 30th October 2019 leaving a will dated 14th June 2019 pursuant to which she is named as sole executor and beneficiary. The deceased was born in Antigua and migrated to the United States of America in about 1964. He made a living repairing distressed properties for sale or rent and owned a business called Lincoln Auto Parts.

[5]The deceased returned to Antigua and resided there for about eight years until he was hospitalized at Mount St. John’s Medical Centre (now St. Lester Bird Medical Centre). After being advised to seek treatment overseas, the claimant and the deceased travelled to New York on 25th February 2019. Once in New York, he was admitted to the Long Island Jewish Medical Centre where he underwent heart valve replacement surgery.

[6]In April 2019, the deceased was discharged from the Long Island Jewish Medical Centre and transferred to the Sunharbour Rehabilitation Centre located at Roslyn Heights, New York. At the date of his discharge, the deceased complained to the claimant that his daughter, the second defendant had neglected him throughout his hospital stay.

[7]The claimant avers that it was during that time that she had a conversation with the deceased who disclosed to her that he intended to move from New York to Maryland to receive out-patient care. She claims that the deceased stated that funds for his outpatient care would have been provided under his insurance policy and a female friend whose name he had not disclosed would also assist.

[8]Further, the claimant avers that the deceased also stated that his accommodation expenses in Maryland would have been paid by his daughter Chantel, out of the proceeds from rent she collected on his behalf in New York. The claimant also alleges that on 25th April 2019, the deceased executed a Power of Attorney in her favour.

[9]The claimant avers that she returned to Antigua on 27th April 2019 and the deceased moved from New York to Maryland on or about 4th May 2019. On or about 10th May 2019 the claimant alleges that the deceased called her in a distressed state indicating that funds from his insurance company were not forthcoming. He also complained that his daughter the second defendant was not answering his calls. The claimant’s adopted son Steve Joseph then allegedly brought $5000.00 from New York to Maryland for the deceased to cover his medical expenses. The second defendant also sent funds to Maryland from New York by money order.

[10]The claimant avers that on 7th June 2019 the deceased gave instructions via WhatsApp call to attorney-at-law Mr. Harold Lovell to prepare a will. The will was prepared in Antigua and delivered to one Mr. Anthony Harris a family friend. The claimant alleges that the said will was duly executed in the presence of two witnesses and a notary public who travelled from New York to Maryland to do so.

[11]The claimant avers that on 11th June 2019 she travelled from Antigua to New York and then on 13th July 2019 to Maryland to visit the deceased. One week later the claimant took the deceased from Maryland to New York where he was readmitted to the Long Island Jewish Medical Centre. The claimant returned to Antigua the following month.

[12]In August 2019 the deceased was discharged from Long Island Jewish Medical Centre and entered the Workmen’s Circle Multicare Centre in the Bronx. The claimant returned to New York on 24th August 2019 and visited the deceased on a daily basis. The deceased’s health continued to deteriorate and had to be taken to Montefiore Hospital. The claimant alleges that she visited the deceased daily at that hospital. The deceased was admitted to the intensive care unit of the hospital on 16th October 2019 and passed away on 29th October 2019.

[13]On 20th December 2019 the claimant submitted an application for the grant of probate. On the 20th and 22nd of January 2020, separate caveats were filed on behalf of the first and second defendants respectively. Defence and Counterclaim of the First Defendant

[14]The first defendant filed a Defence and Counterclaim on September 1st, 2020. The first defendant alleges that she was married to the deceased for over fifteen years and is thus his lawful widow. The first defendant denied that the deceased earned a living from retrofitting distressed properties but rather as a car salesman until she met him in 1986. From that point they shared an intimate relationship and entered into joint ventures of buying and selling real estate for their benefit to be shared equally. Thus, the First Defendant submits that she is entitled to a half share in all the properties acquired in Antigua by the deceased during the course of their marriage.

[15]Additionally, the first defendant submits that she is entitled to a half-share of all funds in a bank account at the Antigua Commercial Bank, which according to her had been used by the deceased to send money from America to conduct business in Antigua. She further alleges that she travelled with the deceased on numerous occasions to Antigua, specifically in 1997, 2000, 2005, 2009 and 2015. The first defendant recalled that they discussed purchasing a home in Seaview Farm but due to the first defendant not being an Antiguan citizen, that said property was registered solely in the deceased’s name.

[16]She also denies that the claimant accompanied the deceased to New York for treatment or that the deceased had a valve replacement surgery to his heart. She accepts that the deceased had been transferred from the Long Island Jewish Medical Centre to Sunharbour Manor. However, the first defendant is adamant that all the deceased’s care, support, transportation and food had been provided by her and her family members and the second defendant. Furthermore, she transported the deceased to and from therapy at her own cost and also transported him for dialysis treatment.

[17]The first defendant alleges that the will of 14th June 2019 lacks validity and is null and void as she only knows of the 2016 will prepared by Ms. Sherrie-Ann Bradshaw. Furthermore, it is submitted that no Notary Public nor witnesses visited the deceased on 14th June 2019 as alleged as the deceased had dialysis treatment on that day in Maryland.

[18]It is the first defendant’s claim that while dating the deceased between 1986 and 2000, they pooled their monies together and purchased properties as investments. They purchased their first property in 1998 from Mr. John I Martin for the sum of EC$150,000.00. However, the first defendant did not have Antiguan citizenship and as such it had been agreed that it was easier to put that property in the sole name of the deceased who was a citizen of Antigua and Barbuda.

[19]Further, after the first defendant and the deceased got married in October 2000, they purchased properties in the United States of America, St. Croix and Antigua. However, some of those properties were re-sold and monies from the sales were invested in Antigua. She states that it had always been mutually agreed and understood that the properties purchased were jointly owned despite all the properties being registered solely in the deceased’s name. The properties are identified as follows: Registration Section Block Number Parcel Number Five Islands 54 1489A 1290 & 1291 Central 14 2288A 183 Barnes Hill & Coolidge 41 2094A 207 Cassada Gardens 42 1894A 435 Hodges Bay & Thibou 43 1869A 736 English Harbour 35 2580A 430 Claimant’s Reply and Defence to Counterclaim

[21]Trial of this matter took place on the 22nd of March 2024. Two witnesses gave sworn evidence at the trial namely the claimant and the first defendant. Written closing submissions were filed by the parties on 15th April,2024. Claimant’s Evidence Iotha Peters

[22]The claimant’s evidence-in- chief was given by witness statement filed on the 4th of November 2022. The claimant’s witness statement is very similar to what was stated in the Statement of Claim and thus will not be repeated in the interest of brevity.

[23]Under cross-examination, the claimant accepted that the 2019 will had been prepared in Antigua, though the deceased had not been in Antigua at that time. When questioned as to whether said will had been read to the deceased, Ms. Peters stated that she would not be able to answer that.

[24]Further the claimant strongly stated that she had not been aware that her late brother had been married to the first defendant. However, when directed to the marriage certificate evidencing marriage between the deceased and the first defendant, the claimant admitted that the address of Linden Blvd, New York stated in the said certificate was one of the addresses that belonged to the deceased.

[25]Counsel for the second defendant Ms. White, questioned the claimant as to her first encounter with the first defendant. The claimant recalled that the first encounter she had with the first defendant occurred at a cricket match in Antigua in 1997, where the deceased introduced the first defendant as a friend. The claimant further stated that the only other time that she saw the first defendant was at the deceased’s funeral. It was put to her that she knew of the relationship between the deceased and the first defendant and that she knew of their marriage in 2000. The claimant strongly denied this.

[26]In re-examination, the claimant stated that during the period of 2013-2018 when her late brother acquired properties in Antigua, she had never seen the first defendant with him. Defendant’s Evidence Lynette Palmer

[27]The first defendant gave her evidence-in-chief by witness statement filed on the 3rd of October 2022. As with the claimant, the witness statement recites the same facts contained in her defence and counterclaim. This therefore will not be repeated but aspects of it will be examined in more detail later in this decision.

[28]Under cross-examination, the first defendant indicated that she and the deceased had formed a good relationship from the moment they met, although they never held a joint account. She explained to the court that she did make an attempt to set up said account in Antigua but she had been told by the bank that for her to have access to one, it required her to have a local address and local ID. Mr. Tabor counsel for the claimant suggested to her that there had never been any “pooling of resources between her and the deceased.” She replied that the pooling of resources consisted of the deceased taking money from her account and placing it into his account.

[29]The first defendant testified that she has never lived permanently in Antigua but had made several trips there with her late husband. She submitted that the deceased also owned properties in the Virgin Islands but that said properties had been registered in the deceased’s name only. Counsel for the claimant suggested to her that she was an American citizen and thus the properties in the Virgin Islands could have been registered jointly with the deceased. She stated however, that she trusted her late husband explicitly, therefore after discussions with him, she allowed him to register the properties in the Virgin Islands in his sole name.

[30]The first defendant reiterated throughout her testimony that she had a great relationship with the deceased whom she trusted and with whom she discussed any and everything. She accepted that from as early as when the first property was being purchased in Antigua, she was aware that she would require a licence to obtain registered title. Mr. Tabor suggested to her that acquiring an alien’s licence in Antigua would have been “a piece of cake” as the deceased was of Antiguan nationality. However, the first defendant asserted that she did not find going through that process to be necessary.

[31]The second defendant’s counsel Ms. White inquired from the first defendant as to why the deceased as a savvy and competent businessman did not make arrangements to protect his wife’s interests? In response, the first defendant reiterated that she and the deceased always discussed their ventures and investments and that she trusted the deceased explicitly. Ms. White also put to the first defendant that it was strange that two purported wills had been created by the deceased but that neither mentioned her name at all. The first defendant stated that she could not speak on such matters as she did not know of the existence of any of the alleged wills.

[32]In re-examination, the first defendant stated that to the best of her knowledge, she knew that the deceased, when he visited Antigua, would stay at his mother’s property, the property in Seaview Farm and at his brother’s property for a short while after the deceased’s mother’s house was burned down. She confirmed that she never acquired Antiguan citizenship and neither had she applied for said citizenship.

[33]The court pointed out to the first defendant that she was not mentioned in the deceased’s funeral programme considering that she was his wife. The first defendant indicated that the news of the deceased’s death came through a phone call where an individual expressed condolences on her husband’s passing. Thus, the first defendant indicated that she had played no role in planning the deceased’s funeral and commented that she had been shocked that the second defendant had not informed her of his passing.

[34]The court also pointed out that the deceased’s death certificate describes him as being divorced at his death. The first defendant clarified that she had gotten that document corrected by the New York authorities but confessed that the corrected document had not been disclosed in these proceedings. Issues

[35]The issues to be decided before this court are as follows:

1.Whether the purported will dated June 14th, 2019, was validly executed?

2.Whether the deceased knew and approved of its contents?

[20]The claimant filed a Reply and Defence to the Counterclaim on 29th September 2020. In it, the claimant maintains her position as to the facts as set out in the Statement of Claim and puts the first defendant to strict proof thereof. She further avers that on the death certificate of the deceased describes his marital status as being divorced. The Claimant submitted that the will dated 14th June 2019 is in keeping with the laws of Antigua and Barbuda. Therefore, the first defendant is not entitled to any share of the properties in Antigua. Trial

4.Whether the First-named defendant is entitled to a half share, beneficial and legal interest of the deceased’s properties in Antigua? Discussion

[37]Section 7 of the Wills Act provides: “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, or 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.”

[38]The will of 14th June 2019 on its face appears to be validly executed in accordance with section 7 of the Wills Act quoted above this, as it appears to have been signed by the deceased in the presence of a notary and two witnesses. In Alvarez v. Chandler the court stated: “It is quite true that, in the absence of evidence to the contrary, a will which is shown to have been executed and attested in the manner prescribed by law, and which appears to be rational on the face of it, is presumed to be that of a person of competent understanding: Symes v. Green (5); but, once there is evidence before the court which casts doubt upon the validity of that presumption in any case, its conscience cannot, or should not, be satisfied without some affirmative proof”

[44]Secondly, there is no Evidence from the Notary or the other attesting witnesses as to the circumstances in which the will was executed. These persons have not come forward to state that the will was read over to the deceased and that he confirmed that its contents were consistent with his intentions. In addition, although the claimant states that instructions were given to Attorney-at-Law Mr. Harold Lovell to prepare the will. However, there is no evidence from Mr. Lovell himself to confirm that he actually received these instructions from the deceased.

[45]Finally, there is evidence from the first defendant which has been disclosed and exhibited that the deceased was undergoing dialysis treatment at Maryland Nephrology, L.C.C on 14th June 2019, the very day the will was purportedly executed. This evidence was not seriously challenged and there is no reason to doubt it. This raises the concern of whether the deceased could have executed the purported will at all. In the absence of testimony from any of the witnesses the court is reluctant to hold that the will is valid.

[54]In terms of the source of the funds used to purchase the properties, the claimant alleges that she banked their monies at Bank of America and Antigua Commercial Bank. According to the first defendant, her earnings rose from US$4000.00 monthly and were capped at US$8000.00 monthly when she retired. She claimed that the deceased would send monies from America to the Antigua Commercial Bank account to conduct business in Antigua. She claims that when he died there was over one hundred thousand dollars in the account but provides no further details of said account.

[56]The first defendant appears to be basing her entitlement to a half share in the properties on her alleged contributions to the purchase of the said properties. However, the second defendant has not given any details as to how much she contributed to the alleged pooling of resources. The second defendant has not provided any documentary evidence such as transfers or bank statements from her Bank of America Account to substantiate her claim that she contributed any monies towards the purchase of the said properties. It would be thought that even though the second defendant might be unable to account for every dollar which she gave her husband, she should reasonably have proof of at least some transfers.

[36]The first three issues identified above are interconnected and will be examined together. The will dated 14th June 2019 which the claimant wishes to have pronounced in solemn form names her as sole executor and beneficiary. In Alvarez v. Chandler Wooding CJ stated as follows: “Probate in solemn form requires proof in the action therefor that the will in respect of which probate is granted is the true and last will of the testator.”

[39]In Barry v Butlin, Parke B said that there were two rules. The first was that the person preparing a will— ‘Must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”

[40]In Tyrell v Painton , Lindley LJ referring to Barry v. Butlin and other authorities stated: “The rule laid down in those cases is not confined to the single case in which a will is prepared by or on the instructions of the person taking a benefit under it, but extends to all cases where, as I have said, there are circumstances which arouse the suspicion of the court.”

[41]In Davis v Mayhew the court stated: "The wide definition of suspicion stated by Lindley LJ, in Tyrell v Painton … that it 'extends to all cases in which circumstances exist which excite the suspicion of the court' appears to have been used in reference to the preparation of the will, its intrinsic terms, and the circumstances surrounding its preparation and execution.”

[42]In Leroy Silston v. Ruthlyn Chambers Michel J (as he then was) summarized the relevant principles as follows: “The doctrine started off as being limited to the circumstance of an attorney preparing a will under which he got a significant benefit, then progressed to include any person involved in the preparation of a will under which he got a significant benefit, and further progressed to include any circumstance in which the preparation of the will, its intrinsic terms and the circumstances surrounding its preparation and execution should and does excite the suspicion of the court.”

[43]The first defendant has raised several concerns in relation to the execution of the purported will of 14th June 2019. In the court’s view there a few of these which excite the suspicion of the court. Firstly, it is not clear where the purported will was executed. In her statement of claim the claimant alleges that the witnessing Notary travelled to Maryland to witness the will. However, the will itself does not state whether it was executed in Maryland, New York or elsewhere.

[46]Therefore, in the face of these doubts the court cannot pronounce in favour of the purported will dated 14th June 2019. The claimant has not discharged the burden which rests upon her to prove that the will was in fact executed and attested in the manner prescribed by law. Further there is no evidence that at the time of the will’s alleged execution that the deceased knew and approved of its contents.

[47]There is a purported will in favour of the second defendant which was allegedly executed in 2016. However, the second defendant failed to file a defence to the claim and also did not file a witness statement. Further even when this court gave the parties an extension of time of approximately ten days to file affidavits of testamentary scripts, counsel for the second defendant Ms. Mary White failed to cause one to be filed. It was only on the morning of trial that Ms. White made an oral application for an extension of time to file said affidavit. This would have necessitated a further delay in the commencement of trial and the application was accordingly refused.

[48]The lack of compliance with the Civil Procedure Rules and Case Management directions by the second defendant seems to be caused by her attorney-at-law Ms. Mary White not fulfilling the responsibilities owed to her client. This is regrettable as it would have been useful to hear the second defendant’s perspective on this matter. The result is that the 2016 will is not in evidence and the estate of the deceased Ian Wesley Peters shall devolve as an intestacy. Whether the First-named defendant is entitled to a half share, beneficial and legal interest of the deceased’s properties in Antigua?

[49]The first defendant is claiming a half-share in respect of several properties owned by the deceased in Antigua. The properties are all registered in the sole name of the deceased and appear to have been purchased between 2003 and 2018.

[50]Baroness Hale of Richmond in Stack v Dowden summarized the applicable principles in respect of beneficial ownership as follows: ‘Just as the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all.’

[51]Thus, the burden is on the first defendant to prove that she has an interest in the various properties in Antigua. In Abbott v. Abbott the Privy Council provided guidance on the approach to be adopted as follows: “There are, of course, two separate questions: first, was it intended that the parties should share the beneficial interest in a property conveyed to one of them only; and second, if it was so intended, in what proportions was it intended that they share the beneficial interest?”

[52]In Oxley v Hissock the court observed that: ‘…the second question to be answered in cases of this nature is “what is the extent of the parties’ respective beneficial interests in the property?” Again, in many such cases, the answer will be provided by evidence of what they said and did at the time of the acquisition. But, in a case where there is no evidence of any discussion between them as to the amount of the share which each was to have – and even in a case where the evidence is that there was no discussion on that point – the question still requires an answer. It must now be accepted that (at least in this Court and below) the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property. And, in that context, “the whole course of dealing between them in relation to the property” includes the arrangements which they make from time to time in order to meet the outgoings (for example, mortgage contributions, council tax and utilities, repairs, insurance and housekeeping) which have to be met if they are to live in the property as their home.’

[53]The properties in issue are all held in the sole name of the deceased, Mr. Ian Peters. It is the first defendant’s evidence that she had formed an intimate relationship with the deceased from 1986 until their marriage in 2000. She states that the “deceased and I used our resources to purchase several properties after we got married in October 2000. ” The first defendant continues, “After the deceased and I got married, we continued our intimate relationship as husband and wife and the deceased made decisions concerning investments in the United States of America, St. Croix and Antigua. Some of these properties were re-sold. Some of the monies we made were invested in Antigua.”

[55]She alleges that they discussed purchasing a home in Seaview Farm which was subsequently purchased. The second defendant alleges that her daughter and the deceased spent holidays there in 2015. The second defendant therefore claims a half share beneficial interest in each and every property acquired during the course of her relationship with the deceased. In terms of why the properties were registered in the deceased’s name only, she claims that this was because she was not an Antiguan citizen.

[57]In Stack v Dowden the UK Supreme Court outlined the applicable principle as follows: “The law has indeed moved on in response to changing social and economic conditions. The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.

[58]The burden of proof is on the first defendant to prove the common intention as the basis of the alleged beneficial interest in the properties. I have already found that the first defendant has given insufficient evidence of any direct financial contributions towards purchase of the properties.

[59]It is only necessary to make brief mention of the first defendant’s alleged interest in the deceased’s account at Antigua Commercial Bank. Firstly, she has provided no documentary evidence as to whether the account exists at all. Secondly, she has not even estimated the extent of any of her alleged contributions to said account. Thus, any claim in respect of the deceased’s bank account is manifestly unsustainable.

[60]Apart from this, the parties overall conduct gives the impression of persons married in name only. The deceased and the first defendant seemed to have maintained separate residences, separate finances and lived largely separate lives. In this regard it is not disputed that the deceased resided in Antigua for years with the first defendant only visiting. The first defendant was also not even aware when the deceased passed away and no mention at all is made of her either on the death certificate or the funeral programme. As Mr. Tabor colourfully put in cross-examination, the first defendant “played a cameo role” in the deceased’s life. I agree. It is therefore difficult to infer a common intention in such a relationship.

[61]Therefore, the first defendant’s counterclaim must be dismissed. However, assuming that she can prove that she was still married to the deceased at the date of his death, she may be a beneficiary in his estate which must now devolve as an intestacy pursuant to the Intestate Estates Act. Costs

[62]The claimant’s claim has failed in its entirety and so has the first defendant’s counterclaim. The second defendant took little part in these proceedings having not filed a defence or an affidavit of testamentary scripts. Accordingly, the appropriate order in this matter will be for the parties to bear their own costs. Order

[63]The court therefore orders as follows:

[64]The court apologizes for the delay in delivery of this decision. Rene Williams High Court Judge By The Court Registrar

[2]The claimant Iotha Peters is the deceased’s sister and the executor and sole beneficiary of his estate pursuant to the purported will dated 14th June 2019. The first defendant Lynette Palmer was married to the deceased and seeks declarations that she is entitled to an interest in certain properties which the deceased owned in Antigua. Finally, the second defendant Chantel Peters is the deceased’s daughter and sole executor and beneficiary pursuant to the purported will dated 20th June 2016. The Claim

3.Whether the Claimant is entitled to a grant of probate regarding the estate of the deceased?

1.The court pronounces against the force and validity of the purported Last Will and Testament of the deceased Ian Wesley Peters dated 14th June 2019 and the estate of said deceased shall devolve as on an intestacy.

2.The counterclaim filed by the first defendant is dismissed in its entirety.

3.The caveats dated the 20th day of January 2020 on behalf of the first defendant and on the 22nd day of January 2020 on behalf of the second defendant are hereby set aside.

4.No order as to costs.