VERNICE HAYNES AND ALBERT CREESE AMD KAY BACCHUS

SAlHf \1IlIl!lll' All) '!HE GRmADnmi IN mE lI[GI <XlJRt OF JUSTICE (crvn.) A.D. 1991. suiT m: 536/1990. vethjce Haynes (suing as Attorriey on behalf of the ~ic1BriEs· !Idiba Luik Fdward Creese aJXl fitzrOy Crees~ 1awful. ~ of the ~sed) AND .Albert Creese, lawful beneficiary of the estate of the deca!,...ed and the Achinistrator of the estate of the deceased .AND Kay R.A. Baccbus-Gill, Solicitor for the ldJriiJistrator of the estate of the deceased. Mr. GraftonlsaacJ3 for the Pl.a:intiff Mr. Andrew Qmuings for the Defendants (12th July, 1991) FINOnt;: A stmDODS ~ by m affidavit of the secom defemant was filed 011 23rd April, 1991, applying for the stataoont of claim and the eOOorsaDent on the Vrit of Sumo1s filai on 12th October, 1990, be struck out l'JDl/or d:ism:i.ssed 00 the grcu:tds that no reasonable cause of action against the defendant is discl.osW: that the matter is scaOOalous, frivilous or vexatious am it is otheJ:w:i.se an abuse of the process of the O:urt. CaJoter affidavits -were filed 00 bd1alf of the plaintiff. '!be issues raised in the case are:

1.~tber the second defendant is the solicitor for the first defendant?

2.'bather the first defesx1ant mrl beoeficim:ies slrAJld have' been coosultOO. by the secoOO defen:lant before the estate of the deceased was sold for the payment of estate and successicn duty and that, bav.i.ng colla:.tOO lOOneY, 00 accamt was made to the Ednirrl.qtrator. /3••• -2­ 3.· That the surveyor was ~loyed wi~t the authority of the f.dninistrater or the beneficiaries to survey the lmrl. i.. 1hat the secarl defemmtt W8S requestE-d CO behalf of the first CefeoJant mrl the plaintiff to han:1 over the grant of letters of och:i.nistration rut did not do so.

5.That the secctrl MEn-mt is atmre that tha first defenJant is an alccholic tih; was ndnitted to the Mental Hecl.t."t Centre on occasioos for treatment: that he is frequently in unstable con:lition not knowing what he is doing :md toIld Sllecnnb to her wishes if she gives him m:ney to ~ alcd:lol.

6.'lhat the secarl defeOOant has cxertoc undue influence on the first defarrlant to sign deeds for the e.'3tate for herself &ad would be pn:cl:vJsers nnd was abJsive to the first :1efm.1ant when he ~1 to sign these dOClllBlts. With regard to the first issue, the cl.lcgation is t:l1at the seJ:O[Jj defen:mt is actirlg for the first c1efetr~t although the first defendmlt aOO a1l. the other t:a:l<3fici.c.nes objcct to her doo] 11'48 with the estate. CaJose1 for the plnintiff with-!rew the subnission tmde ~ that the mtice of chenge of Solicitor was filed in the estate suit. As regm:ds the secord i.s.sua, the secon:! deferr.i"lIlt is not obli8(><.j to ccnsult with the teneficiarics as the perSCl1<'ll representative is the ~ fran 1ih:m she takes instructions and the first defendant has deposErl that be wt:horised the seca:rl defel¥lant to sell larrl ccmpris:in2; the estate of thekeaSErle A t;:erson to lIilCm a grnnt of Letters of Aaninistration is ~ is the ~ rq:::reseotative of the estate atrl BWeMS to aantnister the estate. He enters into a lx:n1 for the Juc a:in:inistration ~)f the estate camd.tUrl to his core. This grant stan1s until rovoke::!. The sane ccmneot rel.l!tes to the thiJ:d issue, that is, the aax:>inboont of a surveyor to sur:vey the U!nd. The first c1efenGan1; as Perscoal Representative,. .is occcuntab1e to the 1:.eneficiari,,-\S and, if cal]00 U[XJll to accotDt, DIlSt 00 so. · ' -.3­ Negarding the fourth issue the plaintiff has no outhDrity to dauan::l the letters of trlnj'Oistratict1 fran the second defetrlmt as the sa::.ood defa:rlant is acting for the first defendant. that I h!::we fan:! very unusual is that in mtIDY portions of the ?..ffiCavits filed t.y solicitor for the plaintiff, he seaus to be acting for the first defcn:1lmt. I till :prccluded fran ccnsidering ooy ccmoont or clmm made on 'behclf of the first Gefendant in t1.1c afficavits filed by solicitor for the plaintiff as he is OIl rect~rd fer the plaintiff. He cannot act fer both [.:mties. r~.L'.c~ the fifth issue the first def~t is undoubtOOly an alccholicc That is clear fran the Ib:.tcr's Certificate OOt there is lK",) ~tiw CCGJOODt frem the dcctor that he is unable to lU1c1ge his nffairs. In fact the do::.tnr·s caunent is that the first def~-mlt is "SClUlrl mentally". Q;nsequently, a l"JlIIlber of curim .. mede by the plaintiff against tile second defetrl:mt 1%e not main~'lle. The uOOet1aantiOJ:le1 ~..orsaIBlt.Cj in the Writ of Su:rmJr1S that refer to the sec:=.onO defeD'"Jant are struck out. Para..:r:;r8fllB (a) to (k) inclusive. 1he mdementioncd portions of the Statalalt of Clnim arc struck out: ~llI;hs 3,4,5, 6,7,8,9,10,12. I an of the view that the only issue lrirlch is of any fneritis 1:.t."'1e sixth issue - thnt of un::kJe infl.uencc, to which reference "is ~1e (not in t:h£ Writ of St.mD.Jns) rut in the StataJalt of CL.'ilin. Exhibitcrl to l.eIJnox Creese' s affi.dc...-,yit of 25th·June, 1991 is a COf¥ of a deOO of r..onvey/lDCe, the ~ties being the first defendant as ahinistratc..T of ~ est.."100 and the second defeoiant. Toe deec'i was preparoo. by the sccon:! defentlant. It is iu:JFerative that a solicitor take all steps to avoid a cct1flict of interest. \here e Solicitor wishes to Iu:'Chase laOO £rem /a••• .. -4­ a client ext:ra.oo caution slnU..d te exerei.se:l to ensure that no qucstioo of tD.iE ihf1ueD:e or coercion or l.Il1f.airness could. arise; 1he solicitor should not prer:aro and eo:k>rsc the Oeed cOI1veyinz the l.mrl ~ed fran the client to himsili or berself. The Solicitor DIlSt insist that the client seek ~t advice. I cite fran Bal.s1::ury's laws of Ehlglmrl 4th Fdition vol.. 18 PDge 153 pn-aa;rarh 337. "The re1at:ia1 of solicitor arrl client is one which gives rise to the pl:OSl.IDptiOIl of uniJ.e influence arrl a ~e ?;y a solicitor fran his client will "f:e set ('.side unless shcMn to have l;een manifestly fair." lIIetber the transaction is manifestly foir C'.lIl 00 oot:e.1:lId.ned only l¥ a tr.i.al. I cmmot hold that this part of the statement of c1.a:im disclcses no reElSOI.1ab1e cawe of action and I do not strike out this p:Jrtion of the stataoont of claim. I oroer the plaintiff to meet 65% of the costs of the se.ccn1 clefa:tdallt to be taxOO UDless .agrea:1. I think CouDse1 appt'tciate that I gave priority to the Land f.,cquisitico matter, hence the delay in deli~ of this finli.ng• ••••••••••••••••••••••••• M:nica JOBefh Puisne Jujze 3.12.91.

SAlHf \1IlIl!lll' All) '!HE GRmADnmi IN mE lI[GI <XlJRt OF JUSTICE (crvn.) A.D. 1991. suiT m: 536/1990. vethjce Haynes (suing as Attorriey on behalf of the ~ic1BriEs· !Idiba Luik Fdward Creese aJXl fitzrOy Crees~ 1awful. of the ~sed) AND .Albert Creese, lawful beneficiary of the estate of the deca!,…ed and the Achinistrator of the estate of the deceased .AND Kay R.A. Baccbus-Gill, Solicitor for the ldJriiJistrator of the estate of the deceased. Mr. GraftonlsaacJ3 for the Pl.a:intiff Mr. Andrew Qmuings for the Defendants (12th July, 1991) FINOnt;: A stmDODS by m affidavit of the secom defemant was filed 011 23rd April, 1991, applying for the stataoont of claim and the eOOorsaDent on the Vrit of Sumo1s filai on 12th October, 1990, be struck out l’JDl/or d:ism:i.ssed 00 the grcu:tds that no reasonable cause of action against the defendant is discl.osW: that the matter is scaOOalous, frivilous or vexatious am it is otheJ:w:i.se an abuse of the process of the O:urt. CaJoter affidavits -were filed 00 bd1alf of the plaintiff. '!be issues raised in the case are:

1.~tber the second defendant is the solicitor for the first defendant?

2.'bather the first defesx1ant mrl beoeficim:ies slrAJld have' been coosultOO. by the secoOO defen:lant before the estate of the deceased was sold for the payment of estate and successicn duty and that, bav.i.ng colla:.tOO lOOneY, 00 accamt was made to the Ednirrl.qtrator. /3••• -23. · That the surveyor was ~loyed wi~t the authority of the f.dninistrater or the beneficiaries to survey the lmrl. i.. 1hat the secarl defemmtt W8S requestE-d CO behalf of the first CefeoJant mrl the plaintiff to han:1 over the grant of letters of och:i.nistration rut did not do so.

5.That the secctrl MEn-mt is atmre that tha first defenJant is an alccholic tih; was ndnitted to the Mental Hecl.t.”t Centre on occasioos for treatment: that he is frequently in unstable con:lition not knowing what he is doing :md toIld Sllecnnb to her wishes if she gives him m:ney to alcd:lol.

6.‘lhat the secarl defeOOant has cxertoc undue influence on the first defarrlant to sign deeds for the e.’3tate for herself &ad would be pn:cl:vJsers nnd was abJsive to the first :1efm.1ant when he ~1to sign these dOClllBlts. With regard to the first issue, the cl.lcgation is t:l1at the seJ:O[Jj defen:mt is actirlg for the first c1efetr~t although the first defendmlt aOO a1l. the other t:a:l<3fici.c.nes objcct to her doo] 11’48 with the estate. CaJose1 for the plnintiff with-!rew the subnission tmde ~that the mtice of chenge of Solicitor was filed in the estate suit. As regm:ds the secord i.s.sua, the secon:! deferr.i”lIlt is not obli8(><.j to ccnsult with the teneficiarics as the perSCl1<‘ll representative is the ~fran 1ih:m she takes instructions and the first defendant has deposErl that be wt:horised the seca:rl defel¥lant to sell larrl ccmpris:in2; the estate of thekeaSErle A t;:erson to lIilCm a grnnt of Letters of Aaninistration is ~ is the ~rq:::reseotative of the estate atrl BWeMS to aantnister the estate. He enters into a lx:n1 for the Juc a:in:inistration ~)f the estate camd.tUrl to his core. This grant stan1s until rovoke::!. The sane ccmneot rel.l!tes to the thiJ:d issue, that is, the aax:>inboont of a surveyor to sur:vey the U!nd. The first c1efenGan1; as Perscoal Representative,. .is occcuntab1e to the 1:.eneficiari,,-\S and, if cal]00 U[XJll to accotDt, DIlSt 00 so. · ‘ -.3Negarding the fourth issue the plaintiff has no outhDrity to dauan::l the letters of trlnj’Oistratict1 fran the second defetrlmt as the sa::.ood defa:rlant is acting for the first defendant. that I h!::we fan:! very unusual is that in mtIDY portions of the ?..ffiCavits filed t.y solicitor for the plaintiff, he seaus to be acting for the first defcn:1lmt. I till :prccluded fran ccnsidering ooy ccmoont or clmm made on ‘behclf of the first Gefendant in t1.1c afficavits filed by solicitor for the plaintiff as he is OIl rect~rd fer the plaintiff. He cannot act fer both [.:mties. r~.L’.c~ the fifth issue the first def~t is undoubtOOly an alccholicc That is clear fran the Ib:.tcr’s Certificate OOt there is lK”,) ~tiwCCGJOODt frem the dcctor that he is unable to lU1c1ge his nffairs. In fact the do::.tnr·s caunent is that the first def~-mlt is “SClUlrl mentally”. Q;nsequently, a l”JlIIlber of curim .. mede by the plaintiff against tile second defetrl:mt 1%e not main~’lle. The uOOet1aantiOJ:le1 ~..orsaIBlt.Cj in the Writ of Su:rmJr1S that refer to the sec:=.onO defeD'”Jant are struck out. Para..:r:;r8fllB (a) to (k) inclusive. 1he mdementioncd portions of the Statalalt of Clnim arc struck out: ~llI;hs 3,4,5, 6,7,8,9,10,12. I an of the view that the only issue lrirlch is of any fneritis 1:.t.”‘1e sixth issue -thnt of un::kJe infl.uencc, to which reference “is ~1e (not in t:h£ Writ of St.mD.Jns) rut in the StataJalt of CL.’ilin. Exhibitcrl to l.eIJnox Creese’ s affi.dc…-,yit of 25th·June, 1991 is a COf¥ of a deOO of r..onvey/lDCe, the ~ties being the first defendant as ahinistratc..T of ~est..”100 and the second defeoiant. Toe deec’i was preparoo. by the sccon:! defentlant. It is iu:JFerative that a solicitor take all steps to avoid a cct1flict of interest. \here e Solicitor wishes to Iu:’Chase laOO £rem /a••• ••••••••••••••••••••••••• .. -4a client ext:ra.oo caution slnU..d te exerei.se:l to ensure that no qucstioo of tD.iE ihf1ueD:e or coercion or l.Il1f.airness could. arise; 1he solicitor should not prer:aro and eo:k>rsc the Oeed cOI1veyinz the l.mrl ~edfran the client to himsili or berself. The Solicitor DIlSt insist that the client seek ~tadvice. I cite fran Bal.s1::ury’s laws of Ehlglmrl 4th Fdition vol.. 18 PDge 153 pn-aa;rarh 337. “The re1at:ia1 of solicitor arrl client is one which gives rise to the pl:OSl.IDptiOIl of uniJ.e influence arrl a ~e?;y a solicitor fran his client will “f:e set (‘.side unless shcMn to have l;een manifestly fair.” lIIetber the transaction is manifestly foir C’.lIl 00 oot:e.1:lId.ned only l¥ a tr.i.al. I cmmot hold that this part of the statement of c1.a:im disclcses no reElSOI.1ab1e cawe of action and I do not strike out this p:Jrtion of the stataoont of claim. I oroer the plaintiff to meet 65% of the costs of the se.ccn1 clefa:tdallt to be taxOO UDless .agrea:1. I think CouDse1 appt’tciate that I gave priority to the Land f.,cquisitico matter,hence the delay in deli~ of this finli.ng• M:nica JOBefh Puisne Jujze

3.12.91.