John Gouldbourne (Administrator of Estate of Lee Alexander Gouldbourne) v Leeroy Noel Gouldbourne - Judgment

¶ ```html IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION CAUSE NO. G0207 OF 2014 LEGAL AID NO. LACR117/2011 BETWEEN JOHN GOULDBOURNE AS ADMINISTRATOR OF THE ESTATE OF LEE ALEXANDER GOULDBOURNE PLAINTIFF AND LEEROY NOEL GOULDBOURNE DEFENDANT Before： Hon. Mrs. Justice Marlene Carter (Actg.) Appearances： Mr. David Lewis-Hall of Priestleys for the Plaintiff Ms. Yvonne Mullen of Broadhurst LLC for the Defendant Dates of Hearing： 17th November 2020-20th November 2020 Date draft circulated： 8th March 2021 Date of delivery of judgment： 8th April 2021 HEADNOTE Civil Jurisdiction-Breach of trust and undue influence- Monies Had and Received-Presumption of advancement-Resulting trust JUDGMENT ```
The parties: The Plaintiff has filed this action in his capacity as Administrator of the Estate of Lee Alexander Gouldbourne (hereinafter “the Deceased”). The Plaintiff was granted Letters of Administration of the Deceased’s estate on the 11th October 2012. The Defendant is the brother of the Plaintiff and a son and beneficiary of the Deceased’s estate. Pursuant to s.29 (1)(c) of the Succession Act, the Plaintiff, the Defendant, and their brother Paul are equal beneficiaries of the Deceased’s estate. The Pleadings Statement of Claim: The Plaintiff’s claim was based on the following as set out in the Statement of Claim:

¶ [3] From around January 2008 the Deceased was suffering from cognitive decline and was suffering from short term memory loss. The Deceased continued to suffer mental decline until the date of his death on the 4th February 2011. By the date of his death, the Deceased was suffering from Alzheimer’s disease and prostate cancer.

¶ [4] In the Deceased’s later years leading up to his death he relied on the support of the Defendant to assist with his care and financial affairs and he was placed in a role of trust and confidence by the Deceased. There are three areas of claim arising as a result. The first is a claim for Monies Had and Received in the amount of CI$235,305.94. The Plaintiff claims that the Deceased held these monies in an account TD 013-04240 at the Cayman National Bank in his sole name up to the date of his death. It is further claimed that on the date of the Deceased’s death, after the time of his passing, the entire amount held in that account was transferred to Account 011-00063, an account held either legally or beneficially by the Defendant. The Plaintiff claims that: By transferring the said sum of CI$235,305.94 out of the account of the Deceased, after his passing the Defendant intermeddled in the Estate and has had and received money to the use of the Plaintiff.1 1 See Paragraph 7 of the Statement of Claim Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 2 of 36
The Statement of Claim further alleges that the Defendant was in a position of trust and confidence as the son of the Deceased. The Plaintiff claims that the Deceased was reliant on the Defendant to assist with his personal and financial affairs and that the amendment of the account mandate for account CK 011-01825 to the joint names of the Deceased and the Defendant was made with a view to assisting the Deceased with the management of his personal affairs given his health and advanced years. The Statement of Claim sets out as follows at Paragraph 12: "On or around the 10th January 2005 the Defendant was added as a joint signatory on account CK 011-01825 and between January 2005 and February 2011 the following sums were transferred from the account to account 011-01826 which it is averred is an account held legally or beneficially in the name of the Defendant. These sums amounted to CI$ 512, 450.72. The Plaintiff claims that: Given the relationship of the Deceased and the Defendant as father and son and the nature of the transactions set out at paragraphs 12 it is presumed that these transactions were procured by the undue influence of the Defendant. In the alternative, it is averred that the Defendant holds all funds removed from account CK 011-01825 between January 2005 and February 2011 on resulting trust for the Plaintiff." The Plaintiff therefore seeks an account of all dealings by the Defendant in the financial affairs of the Deceased and an enquiry into those dealings. The third area of claim relates to property at West Bay North West, Block 4E, Parcel 81. This property was transferred from the Deceased to the Defendant on the 16th July 2008. The Statement of Claim 16 sets out: Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 3 of 36
```html 1 “Given the relationship of the Deceased and the Defendant as father and son, the nature 2 of the transaction, being a transaction so large that it calls for an explanation and 3 occurring at a time when the Deceased was of failing mental health, it is presumed that 4 this transaction was procured by the undue influence of the Defendant over the Deceased.” 5 6. 9. The Plaintiff seeks a declaration that the transfer of land be set aside or in the alternative 7 payment by the Defendant to the Plaintiff of a sum by way of damages equivalent to the value 8 of the property as at July 2008. The Plaintiff also seeks costs and interest. 9 10. 11 The Defence 12 13. 10. The Defendant denied that the Deceased was suffering from cognitive decline, memory loss or 14 Alzheimer’s disease. Instead, the Defendant avers that the Deceased suffered from prostate 15 cancer for which he had received treatment and had fully recovered by the time of his death. 16 “At all material times, leading to the date of his death the Deceased was of sound mind, 17 memory and understanding.” 18 19. 11. It was admitted that the Defendant provided support, care and assistance to the Deceased, and 20 assisted the Deceased with his financial affairs. 21 22. 12. The Defendant averred that the Deceased added the Defendant as a signatory to his account at 23 Cayman National Bank TD 013-04240. It was further set out in the Defence: 24 25 25 “It is averred that at the time the amendment of the account mandate the 26 Deceased informed the Defendant that he intended to and was making a gift 27 to him of the funds in the said account. The Deceased informed the Defendant 28 that he should withdraw the funds in the account if anything were to happen 29 to him.3 30 31 31 The Defendant asserts, that it was on this basis, that the transfer of the entire balance of the said 32 account on the 4th of February 2011, the date of the Deceased’s death, was made, “consistent with the wishes”. 33 Deceased’s v 34 3 At Paragraphs 7.2 and 7.3 of the Defence, Tab 3 of Agreed Bundle. Judgment-G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 4 of 36

¶ [13] The Defendant admitted that he was added as a joint account holder to the Deceased’s CNB Account no. CK 011-01825. The Defendant averred that this account was used by the Deceased for the purposes of his health food store business and also for personal matters. At paragraph 8.4 of the Defence it was stated as follows: ``` "It is averred that in conversations which took place between the Deceased and the Defendant, after the said account mandate was amended, the Deceased made it clear that he had added the Defendant to the account so that he could assist him with his daily financial affairs, if required and that he had intended that should he pass away any funds left in the account would belong solely to and for the benefit of the Defendant."

¶ [14] With regard to paragraphs 12-14 of the Statement of Claim and the sum of CI$512, 450.72 referred to therein by the Plaintiff, the Defendant admitted that these sums were transferred from the Deceased’s account to an account held by the Defendant.

¶ [15] The Defendant averred that when the Deceased sold his interest in his property at North Church Street in 2007, he told the Defendant that he did not wish for it to be held in Account CNB 011-01825 and that it was to be placed in an account in the Defendant’s name. The Defendant therefore placed the sum in a CNB Securities account “on the understanding that the account was for the Deceased’s benefit.” It was from this account, on the Deceased’s instructions that the Defendant states that he had drafts for CI$100,000.00 issued to his brothers, the Plaintiff and Paul Gouldbourne in January 2009. The Defendant averred that: ``` "The Deceased instructed the Defendant that he was to have the balance of funds that remained in the said Cayman National Securities account after the issue of these bank drafts."

¶ [16] The Defendant denied that these transactions were procured by the undue influence on the Deceased, that any presumption of implied undue influence arose or that he held any funds removed from that account on resulting trust.

¶ [17] The Defendant admitted that the Deceased transferred property at West Bay North West, Block 4E, Parcel 8 to the Defendant in July 2008 for his own benefit. Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 5 of 36
```html 18. The Defendant amended his Defence on the 9th August 2019 to indicate his intention to rely on the doctrine of the presumption of advancement in respect of any funds/transactions in issue. The Defendant also averred that the Plaintiff had been： "guilty of prolonged, inordinate and inexcusable delay in bringing and progressing the current action，" with the result that he "caused or permitted the Defendant to believe that he did not intend to take such a step and the Defendant acted to his prejudice and in particular that evidence is now no longer available." The Defendant therefore claims that the Plaintiff is barred by laches from claiming he relief that he seeks， or any relief claimed against the Defendant. The issues 19. The issues for the Court's determination： (a.) Were the monies transferred from Account Number TD 013-04240 at Cayman National Bank in the amount of CI$235，305.94 to Account number 011-00063 on the 4th of February 2011 transferred after the time of passing of the Deceased? (b.) If the monies were transferred after the passing of the Deceased， were these monies had and received by the Defendant for the use of the Plaintiff? (c.) Did the presumption of implied undue influence arise from the relationship between the Defendant and the Deceased which called for an explanation of the transactions/transfers from the Deceased to the Defendant between 2007-2011? (d.) Alternatively， were the transactions/transfers and the value thereof held on resulting trust for the Plaintiff? (e.) Does the presumption of advancement apply in relation to the transactions/transfers at issue? (f.) Should the Plaintiff be barred by laches from the relief sought on the claim by reason of delay? (g.) Should the Court order an Account of the Plaintiff's dealings with the property of the Deceased between 2007-2011? The Evidence before the Court 34 he and remained best of hisancrs set out istaPlaintiff 35 20，hun，John A.，committatnowledge Th 36 statement stood as his evidence in chief. ```
```html 1 21. The Plaintiffs witness statement reveals that he shared a close relationship with his parents 2 while he lived in Grand Cayman. 3 He moved to the United States of America in 1981 and had his own business there. 4 He returned to live in the Cayman Islands in 2004 when he realized that his mother had become quite ill and that the Deceased, his father, was ageing as well. 5 He returned to look after his parents. 6 He lived in a house that his father owned and helped him 7 during the day at his store. 8 He stated that he recognized that his father was becoming less sharp-minded" and at times appeared to get very confused when dealing with customers. 9 22. The Plaintiff stated that the Defendant was unhappy with his connection with his father. 10 After 11 the incident that led to his present incarceration, he related that the Deceased visited him once 12 shortly after his arrest. 13 He stated that he continued to speak to his father every week and related 14 that the Deceased told him that the Defendant did not want him to visit the Plaintiff and took 15 away his car keys to prevent him from doing so. 16 He was aware that his father got into a car 17 accident and his driving licence was revoked as a result of the accident. 18 19 23. The Plaintiff related that he would visit his father and mother during home visits from prison. 20 He stated that although the approved visit was to his mother, he would arrange with his father 21 for him to be present on those visits to his mother. 22 He related that both his parents were keen to see him. 23 24. The Plaintiff was aware that the Deceased was unable to drive and was suffering from 25 Alzheimer's disease and Prostate Cancer. 26 He stated: 27 24. “I do not believe that my father ever fully recovered from his prostate cancer and I don't 28 accept that he was of sound mind, memory and understanding in the latter years of his life.” 29 25. The Plaintiff related that on a home visit in August 2009 he went to see the Deceased at the 30 Defendant's home. 31 He described: 32 “...when I arrived the gates were padlocked with my father walking barefoot around the 33 house talking to himself. During the visit my father did not recognize me and couldn't hold 34 a cor nearly the-nourvisit." for nearly the entirety of the 2 hourvisit.” 35 6. The Pld to medical rest 36 er the dea 37 capacitator of the D e obtaineth c 38 2aintiff referre 39 records thd af 40 ed in his 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404
```markdown "I believe these records confirm my belief that my father was suffering from Alzheimer's Disease and Dementia from as far back as 2005 and was not in a position to manage his own affairs or to be making any decisions with regard to gifting his assets to the Defendant."

¶ [27] On the issue of the transfer of funds from CNB account no. TD013-04240 in the amount of $235,305.94, made on the 4th February 2011, the date of the Deceased's death, the Plaintiff insisted that the Deceased was in no state to authorize a transfer of the funds and, in any event, the transfer was made after his death on that day.

¶ [28] With regard to the transfer from the Deceased to the Defendant of property at West Bay North West, Block 4 E, Parcel 581, the Plaintiff related that this transfer in July 2008 was made at a time when the Defendant was assisting the Deceased with his business affairs and also providing him with accommodation at his home. He stated: "My father was ...suffering from ill health at the time and I believe he was mentally compromised at the time of making the transfer."

¶ [29] The Plaintiff stated, with regard to CNB Account no. CK011-01825, that it is his belief that the Defendant was only added to this account by the Deceased in 2005 after he had suffered a very serious coronary arrest and that this was done to facilitate the Defendant being able to assist the Deceased with his affairs. He insisted that the Deceased had never mentioned to him that he wished the Defendant to benefit by inheriting the funds in the account as the Defendant has stated in his evidence.

¶ [30] The Plaintiff related: "While I did not see much of my father in his later years, I continued to remain on good terms with him and always understood him to regard his children as equals in his eyes. I do not believe it was his intention to favour the Defendant above his other children." ```
```markdown Q: Your mother had a heart attack the year before, Leroy took her to US for treatment? A: He brought her up to me. Q: He had done the same with your father when your father had prostate cancer? A: I had no personal knowledge of it. Because I was not living here, and I am in the US and no one told me what was happening at the time. It was never mentioned to me, that he was sick and come to the US for treatment, no."

¶ [32] The Plaintiff was questioned about his level of knowledge of his father's business. He stated that when he moved to Cayman in Jan 2004, he was living and working with his father. He stated that he knew how the business [his father's business] worked and that while his father went to work every day, he was there with him "most of time". He stated that he understood the processes at the business and how it worked.

¶ [33] When it was suggested to him that he knew little about the Deceased's business he stated: "I was basically working there as a helper, as a clerk would. Not ordering or accounts. My father did those. I would help customers when they came in get things off shelf, put things, maybe run cash register."

¶ [34] The Plaintiff agreed that he was arrested for the crime for which he is presently serving a sentence within 8 months of him returning to Cayman. He stated that his father visited him in prison on only one occasion.

¶ [35] The Plaintiff was questioned about his statement that the Defendant kept his father from coming to visit him and did not allow him to renew his driver's licence. When confronted with the date of the last issue of a licence to the Deceased he stated: "The Last driver's licence was issued to Lee after my arrest. And it expired on 14/12/2007. My understanding was they objected to him renewing it when it expired. Not revoked but not allowed to have a new licence. For first 3 years he was not allowed to have a new licence. For the first 3 years he was not allowed to have a new licence. For the first 3 years he was not allowed to have a new licence. For the first 3 years he was not allowed to have a new licence. For the first 3 years he was not allowed to have a new licence. For the first 3 years he was not allowed to have a new licence. For the first 3 years he was not allowed to have a new licence. For the first 3 years he was not allowed to have a new licence. 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The Plaintiff stated that he would have visits with his mother while she was alive from prison. He stated that he would arrange for his father, the Deceased, to be present at those visits so that he could in effect see both parents. Counsel for the Defendant suggested that there was not support for this in the documents that the Plaintiff had produced relating to those visits. While the Plaintiff agreed that only 3 visits were supported by the documentation between 2007 and 2009, he insisted that whenever he visited his mother his father was called to be there although this was not reflected on the application because the prison rule was that the document should reflect that each visit was to one person only. The Plaintiff stated that he was aware of some of the living arrangements at the Defendant’s home when his father moved there in 2005 and that he also knew that his father was not dependent on the Defendant financially. He acknowledged that his father was part of a close-knit Adventist community and that “help or guidance” would have been available to him from the Church, both resources and people. The Plaintiff also acknowledged that his father was an intelligent man and a keen reader, smart and ran his own business until old age. The Plaintiff described that after seeing his father in August 2009: “I was upset to see him that way. There was nothing really I could do. I continued calling him on telephone. Leroy would never speak to me. I did a lot of praying and asked church people how he was doing if they saw him. Asked for divine assistance.” The Plaintiff was questioned closely about his assertion that the Deceased was as ill as he described. He was referred to the Emergency Physician’s Notes from the 8th of August 2009 some ten days before the Defendant related that the visited his father and saw signs of him being confused and not recognizing anyone: Q: [Your] Father was in hospital but nothing [appears] in note of confusion, unable to hold conversation or that he did not recognize anyone. A: Your condition can change within minutes hours days. O: Can reduce so significantly from no mention in notes to what you describe in a condition cannot know. A: Only what I don’t know what happened before, medical in change. [See paragraph 26 above] [Page 13 of the Agreed Supplementary Trial Bundle 3 – Medical Records] Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 10 of 36
```html 1 40. The Plaintiff stated that any delay in issuing of the writ was not his fault as he had no control 2 over the attorney. He explained that it was sometimes difficult to make phone calls from prison 3 to follow up with his attorney. He stated that he did everything possible at that time with regard 4 to the issuing of the writ - that is, that he kept calling his attorney and even wrote to the Court 5 about trying to get this case concluded. 6 Re-Examination 8 41. In Re-examination the Plaintiff confirmed that he had not made up or invented the dates of 9 visits to his mother where the Deceased could have been present. He asserted that he saw his 10 father in the state that he described in August 2009. He insisted that he did not fabricate this 11 evidence. 12 13 Mrs. Athine Gouldbourne-Duty 14 42. The second witness for the Plaintiff was Mrs. Athine Gouldbourne-Duty. Her witness 15 statement stood as her evidence in chief. Mrs. Gouldbourne-Duty was previously married to 16 the Deceased 3rd son, Paul Gouldbourne and as such is the Deceased former daughter-in-law 17 and former sister-in-law to the Plaintiff and to the Defendant. 18 19 43. So far as relevant to the issues in this case her evidence was that after she separated from Paul 20 she remained in contact with the Deceased and his wife. She stated that she would see the 21 Deceased at church or at his store. Her evidence was that “In the latter days when he moved in 22 with Leeroy, I would never visit him there.” She related that this was due to the Defendant 23 being “aggressive” towards her and her children. 24 25 44. Mrs. Gouldbourne-Duty stated that she did not see the Deceased in the latter years of his life. 26 Her evidence was: 27 28 “...I knew he wasn’t well and suspected he was becoming senile. He would make a scene 29 at the services and would get agitated and try to leave before the service was complete. 30 You could tell he was confused at the services and on one occasion around that time I found 31 himhouse.” 32 33 34 35 34 was 33 33 33 33 35 Judgment - G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 11 of 36 ```
Cross-Examination

¶ [45] Mrs. Gouldbourne-Duty stated that she considered the Deceased "a fine gentleman" whom she had known in excess of 20 years. She agreed with Dr. Addleson's assessment of the Deceased character. She emphasized that he was a forthright man and had strong opinions about his family.

¶ [46] Mrs. Gouldbourne-Duty related that after the Deceased moved to the Defendant's home, she would see him when he attended Church services. She stated that the Deceased started to get a little bit confused in 2008-2009 although she agreed that at 90 plus, he was "doing very well for a man of his age." She stated: > "I think he had a good quality of life around that time. Once Leroy took him home, he was cared for with the helper and Ms. E [his companion]." She went further to explain that: > "Although he was appeared confused, I was not concerned for his health or caring. He was always neatly dressed and cared for."

¶ [47] Mrs. Gouldbourne-Duty agreed that she did not know the Defendant well and that the only time they spent together was when she lived with his brother Paul in Orlando and the Defendant has brought his mother there for medical treatment in 2003. ## Michelle Taylor

¶ [48] Michelle Taylor is a corporate Administrator at Priestleys, attorneys at law for the Plaintiff. Her witness statement was admitted by consent at trial as her evidence in this matter. She related that Priestleys contacted Cayman National Bank on the 12th September 2019 to inquire as to the opening times for their branches on Grand Cayman. Exhibited with her statement was a letter from the Bank's Legal Counsel which confirmed that the Bank's opening hours in 2011 at the Elgin Avenue Branch were as follows: "Monday – Thursday 9:00 AM to 4:00 PM; Friday 9:00 AM – 4:00 PM". Ms. Taylor also stated that on the 12th September 2019, Priestleys made a contact with the Department of Vehicle Licensing as to inquire about the renewal of the Deceased's driver's license for a vehicle in the Cayman Islands. Also held was an email from the Department which stated: Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 12 of 36
```html 1 2 3 4 50. That was the extent of the evidence in support of the Plaintiffs claim. 6 7 The evidence of the Defendant 8 Leeroy Noel Gouldbourne 9 51. The Defendant's witness statement stood as his evidence in chief. He related his early 10 relationship the Deceased and his leaving to live in the United States. He stated that he returned 11 to Grand Cayman in 1987 at the request of his parents and that he would assist his father in the 12 store by ordering products and also with the financial aspects of the business. 13 14 52. The Defendant described his father. He stated: 15 16 17 18 19 20 21 53. The Defendant described that when his father told him that he had developed prostate cancer, 22 23 24 25 26 54. The Defendant stated that he suggested to his father that he leave his home in West Bay to live 27 28 29 30 31 32 33 34 35 was the circle continued to John returned to Grand Cayman after living abroad. He stated that his brothers, John and Paul Judgment - G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 13 of 36

¶ [1] were far closer to his mother than his father. After John was imprisoned in 2004, the Defendant stated that to his knowledge the Deceased only saw John on one occasion. He stated:

¶ [3] "John, being incarcerated had absolutely no personal knowledge of my father’s status, mental health or otherwise, as they had no contact."

¶ [6] 56. The Defendant described his father as being immeasurably more capable than most people of his age. He referred to the medical notes of the Deceased’s visit to the doctor on 29 January 2008, when it was noted that the Deceased: "...was oriented in place, time and person. Has no deterioration of habits. No wandering. No Hallucinations or Delusions. No depression. No risky behaviour."6 The Defendant stated in relation to this visit that:

¶ [8] "It is quite clear that any decline noted was considered normal for his age. No diagnosis of dementia or Alzheimer’s was made by the mental health professional and no follow up appointment was needed."7 As far as the Defendant was concerned "any other references to dementia [or] Alzheimer’s within the medical records are incorrect."8

¶ [11] 57. The Defendant acknowledged that the medical records surrounding his father’s last admission to hospital do mention Alzheimer’s Disease, however he offered that the Deceased was acutely unwell at the time, had had a heart attack and was ventilated for the last few days of his life. He offered that no reliable diagnosis of Alzheimer’s could have been made during that time.

¶ [13] 58. The Defendant stated that the Deceased managed his store and his personal finances himself. He stated that the Deceased often told him that he wanted everything to go to him and that "whatever I have is yours". He related that in 2005 accounts held in his father’s sole name were transferred into joint names of himself and the Deceased. He stated:

¶ [15] "This was done to allow us some flexibility, so I could help if necessary and to ensure that the proceeds of these accounts went to me upon his death."

¶ [18] 59. The Defendant stated that the Deceased owned property at George Town central 13EH 18. This was the site of the Deceased’s shop. When, in 2006, the Deceased was approached to sell the property, the Defendant told the Deceased that he did not want to have anything to do with the sale. He stated that his only role in the eventual sale in 2007 was to take his father to the attorney the papers. lid the negotiation himself

¶ [20] 's firm to sig The Deceased. After the s

¶ [21] ed ale,

¶ [23] 6 Medical Record of visit 29 January 2008 – Core Bundle at page 152

¶ [24] 7 Defendant’s Witness Statement dated 9 August 2019 at paragraph 37

¶ [25] 8 Ibid. at paragraph 38

¶ [27] Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021

¶ [28] ```html 1 the proceeds in the amount of CIS 658， 000 were deposited into an account at Cayman National 2 Bank. 3 4 60. The Defendant's evidence from his witness statement was9： 5 6 52. After the North Church Street proceeds were deposited， I made two 7 transfers of funds into account number 011-01826， which was my account 8 and another to a brokerage account in order for the money to earn more 9 than it would simply as cash. My father knew of this transfer and had no 10 objection to the utilization of the funds in that manner. His firm view was 11 that he wanted me to have the money， and this was in the confidence that 12 I would take care of him. 13 14 53. There was another transfer of $ 64， 000 on the 5th November 2008. I have 15 no recollection of this transfer， but I note that it appears on the bank 16 statement exhibited at page 15. 17 18 54. A few important things about these transfers：- 19 a. My name was on the account and I had full authority to act； 20 b. My father， who had just negotiated a $ 700， 000 sale completely 21 understood what he was doing； and 22 c. My father willingly， freely and of his own choice gave the money 23 to me. I did not ask him for it， pressure or cajole him into giving 24 it to me." 25 26 61. The Defendant confirmed that the Deceased directed him to transfer funds to his brothers 27 John and Paul in 2009 which he did in the sum of US$ 100， 000. He insisted that this was from the 28 sale of the property at George Town Central 13EH 18. 29 30 62. The Defendant's evidence is that the transfer of the property at West Bay North West， Block 31 4E， Pamade to him freely and vol 32 for him due to "any a nsferred oes or undue i 33 and was not tra aiment anflu 34 affection 35 and was not tra aiment anflu 36 affection 37 ed love ar 38 ed love ar 39 ed love ar 40 ed love ar 41 ed love ar 42 ed love ar 43 ed love ar 44 ed love ar 45 ed love ar 46 ed love ar 47 ed love ar 48 ed love ar 49 ed love ar 50 ed love ar 51 ed love ar 52 ed love ar 53 ed love ar 54 ed love ar 55 ed love ar 56 ed love ar 57 ed love ar 58 ed love ar 59 ed love ar 60 ed love ar 61 ed love ar 62 ed love ar 63 ed love ar 64 ed love ar 65 ed love ar 66 ed love ar 67 ed love ar 68 ed love ar 69 ed love ar 70 ed love ar 71 ed love ar 72 ed love ar 73 ed love ar 74 ed love ar 75 ed love ar 76 ed love ar 77 ed love ar 78 ed love ar 79 ed love ar 80 ed love ar 81 ed love ar 82 ed love ar 83 ed love ar 84 ed love ar 85 ed love ar 86 ed love ar 87 ed love ar 88 ed love ar 89 ed love ar 90 ed love ar 91 ed love ar 92 ed love ar 93 ed love ar 94 ed love ar 95 ed love ar 96 ed love ar 97 ed love ar 98 ed love ar 99 ed love ar 100 ed love ar 101 ed love ar 102 ed love ar 103 ed love ar 104 ed love ar 105 ed love ar 106 ed love ar 107 ed love ar 108 ed love ar 109 ed love ar 110 ed love ar 111 ed love ar 112 ed love ar 113 ed love ar 114 ed love ar 115 ed love ar 116 ed love ar 117 ed love ar 118 ed love ar 119 ed love ar 120 ed love ar 121 ed love ar 122 ed love ar 123 ed love ar 124 ed love ar 125 ed love ar 126 ed love ar 127 ed love ar 128 ed love ar 129 ed love ar 130 ed love ar 131 ed love ar 132 ed love ar 133 ed love ar 134 ed love ar 135 ed love ar 136 ed love ar 137 ed love ar 138 ed love ar 139 ed love ar 140 ed love ar 141 ed love ar 142 ed love ar 143 ed love ar 144 ed love ar 145 ed love ar 146 ed love ar 147 ed love ar 148 ed love ar 149 ed love ar 150 ed love ar 151 ed love ar 152 ed love ar 153 ed love ar 154 ed love ar 155 ed love ar 156 ed love ar 157 ed love ar 158 ed love ar 159 ed love ar 160 ed love ar 161 ed love ar 162 ed love ar 163 ed love ar 164 ed love ar 165 ed love ar 166 ed love ar 167 ed love ar 168 ed love ar 169 ed love ar 170 ed love ar 171 ed love ar 172 ed love ar 173 ed love ar 174 ed love ar 175 ed love ar 176 ed love ar 177 ed love ar 178 ed love ar 179 ed love ar 180 ed love ar 181 ed love ar 182 ed love ar 183 ed love ar 184 ed love ar 185 ed love ar 186 ed love ar 187 ed love ar 188 ed love ar 189 ed love ar 190 ed love ar 191 ed love ar 192 ed love ar 193 ed love ar 194 ed love ar 195 ed love ar 196 ed love ar 197 ed love ar 198 ed love ar 199 ed love ar 200 ed love ar 201 ed love ar 202 ed love ar 203 ed love ar 204 ed love ar 205 ed love ar 206 ed love ar 207 ed love ar 208 ed love ar 209 ed love ar 210 ed love ar 211 ed love ar 212 ed love ar 213 ed love ar 214 ed love ar 215 ed love ar 216 ed love ar 217 ed love ar 218 ed love ar 219 ed love ar 220 ed love ar 221 ed love ar 222 ed love ar 223 ed love ar 224 ed love ar 225 ed love ar 226 ed love ar 227 ed love ar 228 ed love ar 229 ed love ar 230 ed love ar 231 ed love ar 232 ed love ar 233 ed love ar 234 ed love ar 235 ed love ar 236 ed love ar 237 ed love ar 238 ed love ar 239 ed love ar 240 ed love ar 241 ed love ar 242 ed love ar 243 ed love ar 244 ed love ar 245 ed love ar 246 ed love ar 247 ed love ar 248 ed love ar 249 ed love ar 250 ed love ar 251 ed love ar 252 ed love ar 253 ed love ar 254 ed love ar 255 ed love ar 256 ed love ar 257 ed love ar 258 ed love ar 259 ed love ar 260 ed love ar 261 ed love ar 262 ed love ar 263 ed love ar 264 ed love ar 265 ed love ar 266 ed love ar 267 ed love ar 268 ed love ar 269 ed love ar 270 ed love ar 271 ed love ar 272 ed love ar 273 ed love ar 274 ed love ar 275 ed love ar 276 ed love ar 277 ed love ar 278 ed love ar 279 ed love ar
```markdown Finally, with regard to the transfer of monies from the Deceased account on the 4th of February 2011, the Defendant stated that he was a joint signatory to the account, the Deceased had added him as a joint signatory "with the express intention that I would have the benefit of same." He stated that he left the funds in this account "because I was afraid that I might die before him and I wanted to make sure he had easy access to funds in that event." He stated that he transferred the funds when he was told that his father was about to die. The Defendant complained that there had been considerable and unexplained delay in the Plaintiff progressing the matter. He related that this delay had caused him "huge prejudice." "My own recollection of the detail around events has faded and it has been very difficult to obtain objective medical evidence. Dr Addleson's witness statement shows this." **Cross Examination** The Defendant was cross-examined by Counsel for the Plaintiff. The Defendant denied knowledge that his father had had a heart attack in 2005. He maintained his view that his father had no issue with dementia, Alzheimer's or cognitive decline. When confronted with various items in the medical notes on these matters the Defendant stated that he was aware that his father had prostate cancer. His evidence was: "I had absolutely no concerns as far as my father was concerned. No issues no memory problems at all except for man of his age. Not aware of others of old age but as far as I am concerned my father was fine." He went on to state: "Any references to Alzheimer's and dementia in the [medical] notes are just a fabrication. They are wrong about the heart attack and wrong about Alzheimer's, but I accept he had an issue with prostate. At age of 98 my father's cancer had then ceased to be a problem. It was not an issue anymore." When confronted with an aspect of his witness statement which noted "... it goes without saying that any ninety-seven year old is going to suffer from some cognitive decline."10 the Defendant stated: "My father did not suffer from any cognitive decline to my limited medical ability. That line is totally false. I understand it is my witness statement." 10 See the Defendant's Witness Statement at paragraph 35. Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 16 of 36 ```
```html 1 67. The Defendant related that he kept his father secured at the house and was very emotive when 2 he was questioned about his father being seen wandering in the street. He denied that this ever 3 happened. He went on to state that: "When he came to live with me, I was in charge, I was 4 running the show". He explained what his being in charge meant, that it was akin to how his 5 father saw a lawyer/client relationship, 6 “He told me I am the lawyer he is the client. He is giving the orders and I am carrying them 7 out because he is the client.” 8 9 68. The Defendant agreed that the Deceased stopped going to church because of his ill health 10 specifically because he was suffering from frequent urination problems. He stated that the 11 Deceased stopped attending church in 2010-2011. He denied that it was earlier in 2008/2009. 12 He related that the Deceased stopped driving sometime in 2007 at the latest and that this was 13 as a result of the Deceased having caused an accident. The Defendant stated that he went to 14 traffic court and asked the Judge to take his father’s licence after that incident. 15 16 69. In answer to Counsel for the Plaintiff, the Defendant stated that the Deceased had lost trust and 17 confidence in his brothers Paul and John before his death. He related that the Deceased did not 18 want any contact with the Plaintiff after he went to prison and denied that his father would see 19 the Plaintiff when the Plaintiff visited their mother as the Plaintiff had described to the Court. 20 21 70. The Defendant agreed that he provided support care and assistance to his father, that he assisted 22 with his well-being and care and also assisted him with his business and financial affairs. He 23 related that after his father came to live with him in 2005, he continued to assist him. 24 25 71. The Defendant was questioned closely about the relevant bank accounts. The Deceased’s bank 26 records were agreed and admitted as part of the evidence at trial. These records for two 27 accounts date from 2006-2013 in respect of one account, the Investment account, and for 28 periods between December 2005 and January 2011 in respect of the other account - the 29 Chequing Account. 30 31 72. With respect to the first, the Investment account, a deposit of $150,000 was made on the 3rd of 32 November 2006. Stated in evidence was Judgment - G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 17 of 36

¶ [1] only. He also agreed that on the date of his father’s death he removed all the monies from that account.

¶ [2] 73. The following account from the Defendant is relevant to this issue:

¶ [4] "The 235,000 withdrawn on date of father’s death was a gift from him or I would put it another way: when he died I would have gotten that money...

¶ [5] In my defence in 2014, I said I was sure that that transfer took place prior to my father passing away.

¶ [6] When I went to bank my father had not passed away. ....

¶ [7] My father was very much alive when I checked on him. I was advised he was only alive because the equipment was keeping him alive.

¶ [8] ....

¶ [9] The bank account my understanding was, money was there and if he dies it is for me and if I die it was for him. I don’t remember if joint names or not. I understood if I die it would be available for him to use and if He died it was my money. I needed to go to the bank although money automatically mine because it was mine in an informal way....

¶ [10] As far as I am concerned the money is mine. ...

¶ [11] It would need to be into my possession. Nobody else could touch that money.

¶ [12] That transfer was not made after my father died."

¶ [13] 74. The Defendant was also questioned about the Deceased’s Chequing Account. He stated that this account, for which he was a joint account holder added by the Deceased in 2005, that this was to enable him to assist the Deceased with his daily financial affairs. The Defendant’s understanding was that “During his [the Deceased] lifetime, he was the operating mind and I dealt with it in accordance with his instructions. His intention that when he died, I would inherit that money, but it was not my money during his lifetime. While alive it was his money but when he died, I understood that I should receive the money.”

¶ [14] The Deon to State wimohies in that

¶ [15] its all thy and all goat account: "I

¶ [16] 75.endant went (in regard to i treatea them

¶ [17] ne same moning to comne as

¶ [18] 33

¶ [19] 34

¶ [20] 35

¶ [21] to anybody."

¶ [22] Legallyit v and My m

¶ [23] father’s my Father’s n. o me any in ly Paul, Joath

¶ [24] wa2 and the fohn ed was with was my

¶ [25] ne twind and jam the bank er and

¶ [27] Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021

¶ [28] ```html 1 76. When the Defendant was questioned about the movement of monies from the Deceased's 2 Chequing Account to his own he stated: 3 4 “It would have been used as an operating account. I can't recall what it [the transfer] was 5 for. But it was used as operating account for the business, father's personal expenses, mine 6 and wife's personal expenses and the church if it needed a donation. It was operated as 7 an expense account. I would have had legal authority to move account but at same time I 8 would have said daddy I am going to do this or that and he would say alright. He would 9 not have to ask me. [to use monies from the account]” 10 11 Dr. R. John Addleson 12 77. Dr. R. John Addleson's witness statement was admitted by consent and read into evidence in 13 support of the Defendant's case. Dr. Addleson is a licensed physician in the Cayman Islands 14 and has been in private practice in the Islands for over 30 years. He stated that he treated the 15 Deceased in the course of his professional practice. He stated that he was required by law to 16 maintain patient records for ten years and usually maintains such records for fifteen years. At 17 the time that he gave a witness statement in this matter in August 2019, Dr. Addleson stated 18 that since the Deceased had ceased to be a patient of his since approximately 2007 to 2008, he 19 20 reference to any records. 21 22 78. The other relevant information from his statement was as follows: 23 24 25 “From independent recollection, without reference to any records, I recall the 26 following with regard to him. On a few occasions his son, Leeroy, brought him 27 to his appointments for minor medical issues related to coughs and colds. When 28 he was last in my office, he was accompanied by Lee Roy's wife, the Deceased's 29 daughter in law, and was quite forthright in his desire to speak to me rather 30 than have her speak for him. He became annoyed when she interrupted. He 31 he 32 o give a urine a&wthout to give a urine sample which he did with out assistance, me seemetim is customa 33 and I noticed a resation wd on beyond whil 34 and space, onv no disable oriented in 35 appropriately.” Judgment - G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 19 of 36 ```
```html 1 79. The Defendant did not call any other witnesses in support of his case. 2 3 The Medical Evidence. 4 Dr. Gary Starkman 5 6 80. The witness statement of Dr. Gary Starkman was admitted into evidence despite objection from the Defendant. Dr. Starkman had been due to give evidence as an expert but did not appear at trial. The Court admitted the statement, taking into consideration the fact that this evidence had not been tested by cross-examination and the effect of this lack of the testing of this evidence on the weight that could be attached to the Doctor's evidence. Dr. Starkman's report deemed an expert report was based upon an examination of the medical notes of the Deceased only. Dr. Starkman never examined the Deceased. His opinion was confined to the questions of whether the Deceased experienced any cognitive decline prior to his death and the likely impact on the Deceased of any of such decline. 7 8 9 10 11 12 13 14 15 16 81. The relevant extracts from the report are as follows: 17 18 19 Executive Summary 20 In my opinion it is very likely that there is documented cognitive decline and mental impairment of the Subject and that this would make him to be more susceptible to outside and/or undue influences. This is evidenced from the documented failure of keeping his medical appointments, not remembering his means of getting around within the same day of his kept appointment and being unsure about the number of his children due to confusion and memory loss. In my opinion, not remembering his appointments could potentially make him susceptible to suggestions of wrong appointment types and dates, not remembering his means of getting around within the same day of his kept appointment could potentially make him susceptible to suggestions of wrong means getting around and being unsure about the number of his children could potentially make him susceptible to suggestions of wrong decisions making regarding his own children. 21 22 23 24 25 ion that the n nd nd and mai 32 33 It is my opinion medical/he 34 decisions about financial matters. 35 36 Judgment - G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 20 of 36 ```
```html 1 82. Dr. Starkman went on to state in his report that the matters that he noted in his summary，"the 2 documented failure to keep his medical appointments，not remembering his means of getting 3 around within the same day of his kept appointment and being unsure about the number of his 4 children due to confusion and memory loss，"were also indicators of likely adverse impact on 5 the Deceased ability to make rational decisions，to undertake everyday tasks，to act 6 independently and that these would also have made the Deceased more susceptible to outside 7 and/or undue influences. 8 9 83. I find that I cannot and do not place much reliance on the conclusions of the Doctor，untested 10 as they were. In any event，the Court is not disadvantaged since there is other medical evidence 11 before the Court from Dr. Addleson，although this evidence could not be considered 12 comprehensive. However，the Court has had the benefit of the Deceased's medical records 13 over a number of years which were admitted into evidence at trial by agreement of the parties. 14 15 84. The Plaintiff has submitted that there is no requirement for this Court to make a finding that 16 the Defendant was mentally impaired in order to determine whether the claim for implied undue 17 influence has been made out on a balance of probabilities. The Court agrees. However，the 18 medical records do assist the Court by providing details of the Deceased's physical condition 19 and also of observations by the medical personnel of the Deceased's mental state during his 20 visits to the hospital over the relevant period. 21 22 85. When the Deceased was admitted to hospital in January 2011，the Accident and Emergency 23 doctor noted that his diagnosis was of prostatic carcinoma. In June 2010，he had presented at 24 the hospital because of blood clots in his urine. In January 2010 he was admitted because of a 25 distended bladder and urinary retention and in August 2009 he had been taken to the hospital 26 because of chest pains and dizziness. General practice notes for the period show that the 27 physician in October 2010 described the Deceased as "well looking/pleasant/dementia". This 28 was noted as well on the inpatient physician notes at the date of his death in February 2011. In 29 January 2008，the medical notes state that the Deceased was showing cognitive decline，which 30 was noted as being normal at the age of 95 years old. 31 86. There was nothing remarkable in the medical evidence given the Deceased's age. 32 33 34 Judgment - G 207/2014：Gouldbourne v Gouldbourne Coram：Carter J. (Actg.) Date：8.04.2021 Page 21 of 36 ```
```html 1 COURT'S CONSIDERATIONS 2 87. Before considering the specific issues in this case, the Court notes that the Defendant accepts that the Deceased made the following transfers to him: 5 a. The Defendant received transfers to his CNB Account #011-01826 from the Deceased's CNB Account #011-01825 in the sum of CI$512，450.72 between April 2006 and May 2010; 8 b. The Defendant received a transfer of the property at Registration Section WBNW, Block 4E，Parcel 581 in West Bay from the Deceased on the 16th of July 2008 for 'natural love and affection'; 11 c. The Defendant removed CI$235，305.94 from the Deceased's CNB Account TD 013-04240 on the 4th February 2011 by transferring the sum to the Defendant's CNB Account #011-00063. 15 Were the monies transferred from Account number TD 013-04240 at Cayman National Bank in the amount of CIS235，305.94 to Account number 011-00063 on the 4th of February 2011 transferred after the time of passing of the Deceased? 19 88. The evidence relating to this issue comes from the statements of Michelle Taylor and of the Defendant himself. There is no dispute that the Deceased died on the 4th day of February 2011. The evidence is that he died at 8：30 am. The Deceased's bank account was held at Cayman National Bank. The evidence from Michelle Taylor is that the Cayman National Bank's opening hours in 2011 at the Elgin Avenue Branch were as follows： "Monday-Thursday 9：00 AM to 4：00 PM；Friday 9：00 AM-4：00 PM". 26 89. The Defendant removed the monies from the account after the bank opened on that day, sometime after 9：00 am. At this time the Deceased was already pronounced dead. There is no evidence to cause this Court to doubt the Deceased's time of death. 30 If the monies were transferred after the passing of the Deceased, were these monies had and received by the Defendant for the use of the Plaintiff? 33 90th the Defend：view as he ee that the mo 34 35 36 Althougant was of the essed at parac 35 ceased died wisl Any propce graph the successio osed of 35 were found that these pressed et other， the lawn i not been d 35 The De without a will. “Pies of his v ased that his monies 35 or his benefit a were the vaf ove that his s clear. 35 rior to his death falls to his estate. Judgment - G 207/2014：Gouldbourne v Gouldbourne Coram：Carter J. (Actg.) Date：8.04.2021 Page 22 of 36 ```
```html 1 91. Section 26 of the Succession Act states: 2 3 “When a person dies intestate his estate, until administration is granted in 4 respect thereof, shall vest in a Judge of the Grand Court. 5 6 92. Section 29 (1) [c] further states: 7 8 9 “If the intestate leaves issue but no husband or wife, the residuary estate of the 10 intestate shall be held on the statutory trusts for the issue of the intestate;” 11 12 93. The full amount of the monies transferred on the 4th February 2011 from the Deceased account 13 TD 013-04240 at Cayman National Bank to the Defendant’s account 011-00063 in the amount 14 of CI$235，305.94 are monies had and received for the Plaintiff as executor of the estate of the 15 Deceased. 16 17 18 Did the presumption of implied undue influence arise from the relationship between the 19 Defendant and the Deceased which called for an explanation of the transactions/transfers from 20 the Deceased to the Defendant between 2007-2011? 21 22 94. In order for the presumption of implied undue influence to arise it must be shown that the 23 Deceased had placed trust and confidence in the Defendant in relation to the management of 24 his financial affairs and that there was a transaction which called for an explanation. There are 25 a number of factors that the Court must consider in determining this issue. The nature of the 26 relationship between the Deceased and the Defendant. Was the relationship such that the 27 Defendant acquired influence over the Deceased because he was vulnerable or dependent, 28 bearing in mind that although such a relationship may be more easily seen in instances where 29 it is lawyer and client, doctor and patient or parent and child, a relationship which may allow 30 for the acquisition of such an influence is not limited to such special relationships. In order for 31 the presumption to apply there need not be any allegation of abuse of trust and confidence.11 32 33 95. In the case of Anne Marie Morley v Dr Joseph Elmaleh12，HHJ Wakesman Q.C. stated that 34 trust and confidence 35 “...relation to som of the donor 36 of other kind of 37 object of theirs, influence. 38 “uo giving rise” 39 agement 40 “...relationsh to 41 such as m 42 11See Watler (as personal representative of Estate of Thompson) v Solomon [2014] 1 CILR 421 12[2009] EWHC 1196 Judgment-G 207/2014：Gouldbourne v Gouldbourne Coram：Carter J. (Actg.) Date：8.04.2021 Page 23 of 36 ```
In the instant case, the relationship is such that the child is the dominant party and the parent the party over whom the influence is claimed to have been exerted.

¶ [96] The transactions which are questioned by the Plaintiff are (i) the transfer of land from the Deceased to the Defendant on the 16th July 2008; (ii) the transfer of funds in the amount of CI$512,450.72 from account CK 011-01825 to account 01101826 between January 2005 and February 2011 and (iii) the transfer of monies in the amount of CI$329,000 from that account to a brokerage account in 2008. This latter amount of CI$329,000 while not particularized in the Statement of Claim does fall within the relevant period of the Plaintiff’s claim with regard to transactions that may have been made due to presumed undue influence and therefore falls to be examined. The Defendant admitted that these monies were transferred by him from the Deceased’s account to a brokerage account during this time.13

¶ [97] The Deceased was of advanced age at the time that the transactions/transfers took place. While I do not place reliance on the conclusions of Dr. Starkman for the reasons stated above, evidence of the age, mental and physical condition of the Deceased during the relevant period, though not determinative, is relevant to the matter at issue. I take from the medical records that during the relevant period the Deceased had the following complaints:14 Mental Health Notes, signed by Shah Hasmukh (23rd and 29th January 2008): - "Impression: he shows cognitive decline" Inpatient Physician Notes, signed by Cawich Shamir (8th January 2010): - "Patient is disoriented" Inpatient Physician Notes, signed by Adedayo Olayinka (25th January 2011): - "Pleasant but confused" Inpatient Physician Notes, signed by Iheonunekwu Nelson (31st January, 2nd and 3rd February 2011): - "Diagnosis: Cardiopulmonary arrest, Anemia, Acute on chronic kidney injury, Hypertension, CAD, Ca prostate, Alzheimer’s disease" The othederal informat paragraphe ted at parave. 98er relevant mation is as no no 13 See paragraphs 59-60 above 14 These were noted by Dr. Starkman and appear at pages 289-290 of the Agreed Core Bundle Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 24 of 36
```html 1 99. The evidence before the Court supports the fact that the Defendant was in a unique position of 2 influence over the Deceased. The Defendant stated in evidence that he provided "support care 3 and assistance" to his father, that he assisted him with his well-being and care and also that he 4 assisted him with his "business and financial affairs." 5 6 100. The Deceased lived with him at his residence. Although he had separate accommodation within 7 the property, he remained dependent on the Defendant to drive him to places that he wished to 8 go and for assistance with his finances. The Defendant admits that the Deceased came to the 9 store in the later years only for something to do not because he was making a contribution to 10 the business as such. The Deceased relied on the Defendant for advice. When the Deceased 11 sought to sell a significant piece of property in George Town in 2007 it was from the Defendant 12 that he sought advice. While the Defendant stated in evidence that he was no part of the 13 negotiation for the purchase price of the property he did state in relation to that sale: 14 15 16 “I said he should not take less than he wanted. . . . . 17 18 I had involvement in that my father asked my opinion. I drove him to Maples 19 & Calder. I told my father it looked ok to me. He signed the documents and 20 picked up the cheque. And my father asked me what he should do with money 21 and I said he should put money into investment account.” 22 101. The Defendant himself gives the reason for the Deceased making him a joint signatory to his 23 accounts. When he was questioned about his name being added to account, 011-01825, so that 24 it became a joint account he stated: 25 “This was in 2005 so I could assist father with daily financial affairs. The idea was that 26 this would remain father's bank account, but it was easier to help him if I could sign 27 cheques and deal with the banking, the bankers.” 28 29 102. With regard to the monies transferred between accounts, the Deceased's CNB Account no. 011- 30 01825 to the Defendant's CNB Account no. 011-01826, I agree with the submissions of counsel 31 for the Plaintiff. The Defendant's evidence that these transfers were business transactions with 32 the majority of thements to US supf the Defendant 33 card, with the being reirplaint's 34 statements, for accounts 011-01826 and 011-00063 held with CNB, and provided only limited 35 credit card statements for that period. Credit card payments from the Defendant to suppliers in 36 Judgment - G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 25 of 36

¶ [1] the USA for the Deceased's benefit are not reflected with corresponding transfers from the

¶ [2] Deceased to the Defendant on the bank statements submitted into evidence.

¶ [4] 103. The Defendant, in cross-examination, could not account for some of the larger transfers from

¶ [5] the Deceased's account. The Defendant's evidence of these transactions is that the payments,

¶ [6] apart from two which he readily identified, “all of these payments are me being paid back for

¶ [7] buying goods for the business.” He then admitted that they could have been for other expenses

¶ [8] including investments, because he was managing those for the Deceased and for himself.

¶ [10] 104. However, I note that in cross examination, in relation to the said transfers, the Defendant stated:

¶ [12] “Q: The transfers to you are not repaying you for business expenditure. A: They are

¶ [13] probably a gift to me ½ of them and 1/3 probably payment for business. I can't remember

¶ [14] what they are for.”

¶ [16] 105. When it was put to the Defendant that there was no mention in his witness statement of the

¶ [17] transfers being for gifts or investments.

¶ [18] “A: That is correct. The first time I said gifts or investments is today. I was operating on

¶ [19] the assumption that what my father told me: son what I have is yours.”

¶ [21] 106. Taking all of the above evidence into account and marrying these with the aspects of the

¶ [22] relationship between the Deceased and the Defendant highlighted above, the evidence in this

¶ [23] case lends itself to the finding that there was a relationship of trust and confidence between the

¶ [24] Defendant and the Deceased. The evidence accepted by this Court supports its conclusion that

¶ [25] there was a relationship of trust and confidence between the Deceased and the Defendant.

¶ [27] 107. The Court being satisfied that there was a relationship of trust and confidence between the

¶ [28] Deceased and the Defendant, it must determine whether the transactions that the Plaintiff has

¶ [29] highlighted in his claim call for an explanation. In *Allcard v Skinner* 15 it was stated:

¶ [31] “... if the gift is so large as not to be reasonably accounted for on the ground of friendship,

¶ [32] relationship, charity, or other ordinary motives on which ordinary men act, the burden is

¶ [33] upo support the g

¶ [34] n the done to ift”. 15 (1887) 36 ChD 145 at 185, Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 26 of 36
```html 108. In Royal Bank of Scotland v Etridge (No 2)16 Lord Nichols of Birkenhead explained in his speech that: 13. Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case. 14. Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant's financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the Defendant abused the influence he acquired in the parties' relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn". 109. In Smith v Cooper17 Lloyd LJ noted in relation to the words "in the absence of satisfactory explanation" at paragraph 14 of Lord Nicholls's speech above: 60. It is plain from his speech that he was using the phrase "a transaction which calls for explanation" as shorthand for the formula in Allcard v Skinner." 110. This Court is satisfied that the transactions/transfers to which the claim for implied undue influence relate are so large as not to be reasonably accounted for on the grounds of the relationship between the Deceased and the Defendant as to call for an explanation from the Defendant. The presumption of implied undue influence arises in this case in relation to these transactions. 1. In cloats before the presumens and that the 11ing argumentis Court, Conceded that 41 tion had arise these were whi 16[2002] 2 AC 773. 17[2010] EWCA Civ 722 Judgment-G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date：8.04.2021 Page 27 of 36 ```
How can the presumption be rebutted?

¶ [112] Halsbury's Laws of England 18 states the following with regard to rebutting the presumption of undue influence: "The presumption of undue influence is a rebuttable evidential presumption which shifts the burden of proof to the alleged wrongdoer. The presumption cannot be rebutted merely by evidence that the complainant understood what he or she was doing and intended to do it, but only by showing that he or she was either free from the influence of the alleged wrongdoer or had been placed by the receipt of independent advice in an equivalent position. The problem is not lack of understanding but lack of independence. Where the presumption arises a voluntary gift will be set aside unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him or her to exercise an independent will and which justify the court in holding that the gift was the result of a free exercise of the donor's will."

¶ [113] In Hackett v CPS & Hackett 19 , the issue before the Court was an application relating the ownership of a house brought by the 2 nd Defendant's mother who claimed that the transfer of the house from her to the 2 nd Defendant for no consideration should be set aside on the grounds of presumed undue influence of the 2 nd Defendant and/or non est factum on the basis that when the claimant signed the transfer of the house, she did not know what the document was. The 2 nd Defendant supported the claimant's application but the Revenue and Customs Prosecutors Office, [now the Crown Prosecution Service ("CPS")] contested it on the basis first, that the house was purchased with the proceeds of the 2 nd Defendant's criminal activities and second, that the claims of presumed undue influence and/or non est factum cannot succeed.

¶ [114] In its consideration of the question: "Can the CPS (as the party seeking to counter the inference of undue influence) discharge the evidential burden and provide a satisfactory explanation for the transfer so that the presumption in favour of undue influence can be rebutted?", the Court referred to the case of Smith v Cooper 20 in which Lloyd LJ explained in relation to the presumption of undue influence: "61. If that is shown, ...the presumption of undue influence applies, that is to court will pretransaction wa of i r, in othene he other. If the one of the over the or w he has ovln say, the isume that thy undue influence one pare tr 38 abuse byty e position hat ords by th 18 Halsbury's Laws of England - Equitable Jurisdiction (Volume 47 (2014)) at 22 19 [2011] EWHC 1170 (Admin) 20 [2010] EWCA Civ 722, Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 28 of 36
```html 1 such a case it is then up to the one party to prove that the transaction was 2 not procured by an abuse of his position of influence but was rather the 3 free exercise of the will of the other party as a result of full, free and 4 informed thought. 5 ... 6 He would normally discharge that burden-as, for instance, now at least 7 occurs in husband and wife cases-by showing that the Defendant entered 8 into the matter with his will fully unconstrained, usually with the benefit 9 of independent legal advice" 10 11 115. Smith v Cooper is also authority for the proposition that it is not sufficient for there to be a 12 reasonable explanation for the transaction or that it was not manifestly to [the donor's] 13 disadvantage.21 Rather what must be considered is whether it had been proved the Defendant 14 "...had discharged the burden of proving that [the donor] entered into the transaction of 15 [his] own free will, independently of, and not in any way as a result of, the influence that 16 [the Defendant] was in a position to exercise over[him]"22. 17 18 Has the Defendant presented evidence to rebut the presumption of implied undue influence? 19 20 116. It is important to note that the Defendant in this case is not been accused of ‘wrongdoing’ in 21 the ordinary sense of that word. Counsel for the Plaintiff reiterated this in his arguments before 22 the Court. In Hackett v CPS & Hackett, Silbur J. noted as follows: 23 24 “...it is not determinative of the issue that the person presumed to exert undue 25 influence did not act wrongfully as it is not an ingredient of undue influence 26 that the wrongdoer cheated the victim because, as was explained by Mummery 27 LJ in Niersmans v Pesticcio [2004] EWCA Civ 372:- 28 29 20...Although undue influence is sometimes described as an 'equitable 30 wrong' or even as a species of equitable fraud, the basis of the court's 31 intervention is not the commission of a dishonest or wrongful act by the 32 Defendant, but that, as a matter of public policy, the presumed 33 influence arising from the relationship of trust and confidence should 34 not operate to the disadvantage of the victim, if the transaction is not 35 satisfactorily explained by ordinary motives: Allcard v. 36 Skinner (1887) 36 Ch D 145 at 171. The court scrutinises the 37 circumstances in which the transaction, under which benefits were 38 conferred on the recipient, took place and the nature of the continuing 39 relationship between the parties, rather than the specific actions 40 of the court may set a 41 on the part of the court may set a 42 transaction 43 from it cond iticised as 44 benefits 21[2010] EWCA Civ 722, paragraphs 65-66 22|bid. paragraph 66 Judgment-G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 29 of 36 ```
```html 117. The evidence of the Defendant was to the effect that he never pressured the Deceased to make the transactions. With respect to the transfer of the proceeds of land to his account, the Defendant's evidence was that he only drove the Deceased to the offices where the transfer of land transaction was executed and that he did not advise or pressure him one way or the next except to say that he should get the price for the land as he felt was appropriate. However as expressed in Credit Lyonnais Bank Nederland NV v Burch23 such action may not be sufficient to rebut the presumption. 118. In that case the issue was whether the bank should move against the Defendant where it had been shown that the Defendant had been put forward [and accepted by the Bank] as guarantee to secure an increased overdraft for company in which she had no interest. The Court was satisfied that the Defendant was not informed of the amount of the overdraft or of the amount of the company's indebtedness. 119. The Court found that even though the Bank's solicitors had advised the Defendant to take independent legal advice that this was not sufficient it was ordered that the transaction be set aside. The Court's reasoning on this point was as follows: 120. “In the circumstances the bank was required to ensure that she obtained independent legal advice. The bank was aware the relationship between P [the guarantee] and the Defendant was that of employer and employee and should have been aware that it was capable of developing into a relationship of trust and confidence with the attendant risk of abuse. The fact that the Defendant chose not to seek independent legal advice should have alerted the bank to the possibility that the def was acting under the undue influence of P.” It can therefore be extrapolated from the dictum in that case that, in order to rebut the presumption, the Defendant has to satisfy this Court not only that he had advised the Deceased to have legal advice or even facilitated the Deceased receiving such advice. The Defendant has to demonstrate that he confirmed that the Deceased did in fact obtain legal advice. This requirement obtains with respect to each of the impugned transactions. There is no evidence before the Court that the Defendant ensured that the Deceased had independent legal advice in respect of the impugned transactions. The Defendant stated that in 2007 when the Deceased sold the property whi the Defendant received a benefit of the amount of Clu 23 [1997] 1 All ER 144 Judgment-G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 30 of 36 ```
```html 1 Defendant's name, that he “did not take him to get independent legal advice, that he did not 2 take him to see an attorney to get such advice.” 3 4 121. Similarly, there is no evidence that the Deceased had the benefit of any such advice at the time 5 that the property at West Bay was transferred from the Deceased to the Defendant on the 16th 6 July 2008. 7 8 122. During the period January 2005 and February 2011 when the Deceased was between 92-98 9 years of age and in failing health, there is no evidence of his being provided with the full, free 10 and independent advice necessary to counter the claim of implied undue influence with regard 11 the transfers of funds amounting to CI$512，450.72 between account CK 011-01825 to account 12 011-01826. 13 14 123. The Defendant in cross-examination was questioned about matters relating directly to this issue 15 and he stated: 16 17 “My father did not make a will. I did not take him to an attorney or say you should 18 make a will. 19 Q：You did not take your father to get independent advice, from a banker or 20 financial advisor 21 A：Since 2005 when he moved to live with me, I have never taken my father 22 since I returned to the Cayman Islands in 1987, never taken him to a legal 23 practitioner in the Cayman Islands except for one time I drove him to Maples 24 and Calder. He was not taken to a financial advisor or anything like that. 25 The only contact my father had financially with anyone was if he spoke to 26 Tony Logan who he considered a good friend at CNB, to speak to him about 27 his accounts. I don't know of him contacting anyone about anything else 28 otherwise. 29 When he said he was giving me proceeds of sale [of the property] I did not 30 think to take him to speak or to see anyone else.” 31 4. Counsendant's submission Deceased drew 32 121 for the Defession to t the fact that 33 an active elder in his he wanted b 34 he had helpers to take care of him, respectfully does not meet the evidentiary burden necessary Judgment - G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 31 of 36 ```
```html 1 to rebut the presumption of implied undue influence. There is no evidence before the Court 2 that a third party had discussions with the Deceased about his intention to make gifts of the 3 transfers to the Defendant or even that anyone else was informed of these decisions and 4 transactions. In addition, there is no written evidence from the Deceased with respect to his 5 intentions concerning these transactions before the Court. 6 125. Evidence that the Deceased was not wholly financially dependent on the Defendant does not 8 take the Defendant’s position further on this critical issue nor does the fact that the Defendant 9 asserted that as between himself and the Deceased：“he told me I am the lawyer he is the client. 10 He is giving the orders and I am carrying them out because he is the client.” As the authorities 11 that have been considered above highlight, evidence that the Deceased knew what he was doing 12 and intended to do it does not rebut the presumption. 13 14 126. The Plaintiff is not required to prove that the Deceased was mentally impaired for the 15 presumption of implied undue influence to apply. Conversely, the Defendant does not have to 16 prove that the Deceased was not mentally impaired in order to rebut the presumption. In any 17 event, the medical evidence presented does not assist the Defendant, simply because the 18 question of implied undue influence is not a question of capacity. It is clear from the authorities 19 that evidence of rebuttal does not arise from a consideration of whether the Deceased knew 20 what he was doing at the time of the transactions. The evidence of impairment can only go the 21 likelihood of a relationship of trust and confidence. The evidence of rebuttal of the 22 presumption is more concerned with what a Court could expect someone to do to ensure that 23 the Deceased’s decision with regard to a transaction is not made under the implied undue 24 influence exerted over him.24 25 26 127. The presumption of implied undue influence has not been rebutted by the Defendant in this 27 case with regard to any of the relevant transactions or transfers. I am satisfied that the Deceased 28 29 Defendant has not satisfied this Court that the Deceased “entered into the transaction of [his] 30 own free will, independently of, and not in any way as a result of, the influence that [the 31 Defendant] was in a position to exercise over[him]. ```
Judgment - G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.) Date: 8.04.2021 ## Page 33 of 36

¶ [1] Alternatively, were the transactions/transfers and the value thereof held on resulting trust for the Plaintiff.

¶ [128] The Plaintiff raised this cause of action in the alternative to that for implied undue influence with regard to the monies transferred from the chequing account of the Deceased 011-01825 to that of the Defendant, 011-01826 between the period April 2006 – May 2010. As stated above, Counsel for the Defendant conceded that the transactions/transfers that the Plaintiff has raised in the instant claim do raise the presumption of implied undue influence. This coupled with the Court’s own findings are sufficient to determine the claim.

¶ [129] In written submission to this Court, Counsel for the Defendant stated that the presumption of a resulting trust: > “...can be rebutted by direct evidence that A did indeed intend to make a gift to B and that he should take it as the beneficial owner. ...Even where this is absent a court will strive to determine the parties’ real intentions at the time of the transactions. This may require drawing an inference from the parties’ words and conduct. In short, therefore, resulting trusts should be viewed as default rules when there is insufficient evidence to determine the settlors’ intentions”25

¶ [130] In the instant case, if this Court is incorrect in its finding that the presumption of implied undue influence does arise with regard to the transactions for which a resulting trust has been claimed in the alternative, I find that the evidence that has been presented to this Court with regard to these transactions as set out above,26 is insufficient for this Court to find they were repayments from the Deceased to the Defendant for monies spent by the Defendant on goods for the Deceased’s business. The Defendant has not provided compelling explanations for these transactions. It is difficult to determine the Deceased’s intentions with regard to these transactions. Therefore, I find that these monies, the result of the transfers, are monies that were held on trust by the Defendant for the Deceased during his lifetime and are now being held on trust by the Defendant for the benefit of the Deceased’s estate.

¶ [131] The monies held in the brokerage account in the amount of CI$329,000 are similarly monies held on trust for the benefit of the Deceased’s estate. 25 See page 5 at paragraph 24 of the Defendant’s Skeleton Argument 26 See particularly paragraphs 102-105 above
Deceased intended to make a gift to the Defendant of those monies and that he should take it as the beneficial owner. Does the presumption of advancement apply in relation to the transactions/transfers at issue?

¶ [132] The Defendant has submitted that the presumption of advancement applies on the facts as presented on this claim. It has been advanced as being able to displace the presumption of a resulting trust if such is found to be applicable.

¶ [133] In Antoni v Antoni 27 the presumption of advancement was described as follows: > "This presumption, a construct of equity, applies when a parent places assets in the name of a child and assumes that the parent intends to make a gift to the child. It is a rebuttable evidentiary presumption. In the absence of adequate rebuttal evidence, the presumption bars the application of the converse presumption, namely, the presumption of a resulting trust. If a person places assets of his or hers in the name of a stranger, the presumption is that the stranger holds the assets on a resulting trust for the transferor. This, too, is a rebuttable evidentiary presumption."

¶ [134] The Plaintiff has argued that the Court may find that the transfer of the property from the Deceased to the Defendant was not a transfer of all legal and beneficial interest, but only of a legal interest and that it should be presumed that the beneficial interest was to remain for the benefit of the Plaintiff. For the reasons set out above at paragraph 130, this Court has found that a presumption of a resulting trust can be made out the facts of this case with regard to the transactions between the chequing accounts of the Deceased and the Defendant. The Defendant cannot have it both ways, that these transactions were repayments for his expenditure on items for the business and also, when that explanation is unsupported by the evidence, to claim that these transactions were gifts from his father. The presumption of advancement does not arise with regard to these transactions or to the $329,000 held in a brokerage account opened by the Defendant in 2007. Should the Plaintiff be barred by laches from the relief sought on the claim by reason of delay? The Deis that the delis claim to tr 37 the matter unit D 5 , although h substantial w 1 years. his casion of Counial has resulte his casion of Counial has resulte at nothing as for almost 35 13fendant assertay in bringing in prejudic pursue til 4 years ago. Defendant is sub as been de ter The submisel for the the Deceased done to 27 [2007] UKPC 10 Judgment – G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 34 of 36
```html 1 Counsel referred to Dr. Addleson’s evidence and his lack of medical records for the Deceased. 2 Counsel also referred to the Defendant’s evidence that he had lost certain relevant financial 3 records such as bank records and invoices for goods and services relating to his use of monies 4 from the bank account 011-01826 from which he assisted the Deceased in his business. She 5 also submitted that the delay has resulted in the Defendant being unable to recall times, places 6 and dates. 7 8 136. Counsel for the Plaintiff in response noted that the suggestion of delay and resulting prejudice 9 had never been raised before the amendment of the Defence in August 2019. He pointed to the 10 fact that although the matter had not progressed as quickly as it could have done the Defendant, 11 represented throughout by Counsel, made no application to have the claim struck out due to 12 delay. Counsel for the Plaintiff asked the Court to consider whether there was evidence that 13 the matters raised by the Defendant would go to the heart of the issues now before the Court in 14 any event. Counsel submitted that there was nothing that the Defendant now suggests that he 15 would have known in 2014 that would have assisted him in this case in terms of the presumption 16 of undue influence and therefore no issue of prejudice arises. 17 18 137. Counsel for the Plaintiff drew to the Court’s attention the substance of Dr. Addleson’s with 19 regard to this issue. Dr. Addleson’s evidence was that he was required to keep patient records 20 for 10 years and usually kept them for up to 15 years. However, at the time he gave his witness 21 statement in 2019, although the Deceased had ceased to be a patient of his in 2007-2008, well 22 within his own 15-year limit for keeping patient records, he did not have those records. No 23 explanation was offered for why he had not done so in this case, why he had not kept the 24 Deceased’s records for the longer period. Counsel for the Plaintiff argued that given the lack 25 of explanation for the Deceased records being unavailable that the Court could not find the 26 Plaintiff bore responsibility for this lack. 27 28 138. With respect to bank account records, Counsel for the Plaintiff pointed to the fact that the 29 Defendant had not provided any of his credit card or bank records for the Court’s scrutiny and 30 there was no explanation for same, emphasizing that the Defendant could have provided records 31 for the 7 years previous to 2014 but had chosen not to do so. Counsel for the Plaintiff invited 32 the Court to find that the matters raised by the Defendant were not instances of undue influence and 33 that the lack of evidence of undue influence and the lack of evidence of the Deceased’s 34 medical records show that the Deceased was not in a position to give informed consent to the 35 proposed treatment. Judgment - G 207/2014: Gouldbourne v Gouldbourne Coram: Carter J. (Actg.). Date: 8.04.2021 Page 35 of 36 ```
```html 139. I find that the Defendant has not shown that there has been unjustifiable delay in all the 2 circumstances in this case so much so that it has adversely affected his position or that it would 3 be inequitable to grant the Plaintiff the remedy he seeks on this claim. 4 5 Should the Court order an Account of the Plaintiff's dealings with the property of the Deceased 6 between 2007-2011? 7 8 140. The Plaintiff is granted the relief as claimed as follows: 9 (i) The Defendant is to repay the sum of CI$235，305.94，monies had and received by 10 the Defendant for the benefit of the Plaintiff. 11 (ii) The Defendant is to provide an account of all dealings by the Defendant in the 12 financial affairs of the Deceased，specifically with regard to all of the Deceased 13 accounts at the Cayman National Bank and also with respect to the brokerage 14 account also at Cayman National Bank to which the sum of CI$329，000 was 15 transferred in 2007. 16 (iii) The transfer of land，Registration Section，West Bay North West，Block 4E， 17 Parcel 581 from the Deceased to the Defendant is hereby set aside. 18 19 141. Costs to the Plaintiff to be taxed if not agreed. The Plaintiff's claim has received funding from 20 the Legal Aid Department. Those funds are to be repaid by the Plaintiff from the Deceased's 21 estate. 22 23 142. Interest on the bank funds at paragraph 140(i) above in accordance with the Judgment Debt 24 (Rates of Interest) Rules. 25 26 27 28 29 Justice Marlene I. Carter Page of the GActg.) Jurana Court( Judgment - G 207/2014：Gouldbourne v Gouldbourne Coram：Carter J. (Actg.) Date：8.04.2021 Page 36 of 36