Felicity Horsford Leader v Selwyn Horsford et Al
| Jurisdiction | Anguilla |
| Judge | Moise, J. |
| Judgment Date | 24 November 2023 |
| Judgment citation (vLex) | [2023] ECSC J1124-1 |
| Docket Number | CLAIM NO. AXAHCV 2021/0048 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
His Lordship The Honourable Justice Ermin Moise
CLAIM NO. AXAHCV 2021/0048
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Ms. Jean M. Dyer of counsel for the Claimants
Mr. D. Michael Bourne of counsel for the Defendants
Mr. Randolph McArthur Babrow died on 5 th January, 2021. On 19 th May, 2017, he executed his Last Will and Testament. In clause 3(a) of that Will, Mr. Babrow bequeathed certain benefits upon the claimants. However, on 23 rd November, 2020, Mr. Babrow executed a codicil. The effect of this codicil was to revoke clause 3(a) of his Last Will and Testament. This codicil also made various dispositions of property to the 2 nd defendant. The claimants, who are nieces and one nephew of Mr. Babrow, bring this action for an order revoking the codicil, primarily on the ground that Mr. Babrow was not of sound mind when this codicil was executed and that he was unduly influenced by the 2 nd defendant. Having assessed the pleadings and the evidence in this case and also giving due regard to the submissions of counsel, I have decided that the case should be dismissed with costs to the defendants. The reasons for my decision are contained in the remainder of this judgment.
Mr. Randolph McArthur Babrow (Mr. Babrow) was born on 13 th February, 1926. At the time of his death he was 94 years old. On 19 th May, 2017, at the age of 91, he executed his Last Will and Testament. In clause 3(a) of that Last Will and Testament, Mr. Babrow made certain dispositions as follows:
“ My real property situated in The Quarter on which is situate my residence, to be placed in a trust to be created for the benefit of my children Hugh Mc. Arthur Babrow and Donna Labega and the children of my deceased sisters Celestine Horsford and Una Khory.”
The claimants are all children of Mr. Babrow's two sisters who were referred to in this clause of the will. I understand that most, if not all of them, live overseas. They assert that they nonetheless had a close relationship with Mr. Babrow. It is also important to note that in clause 3(b) and (d) of that will, Mr. Babrow devised certain properties and money to Ms. Elvesa Liburd (Ms. Liburd), who is the 2 nd defendant in the matter. It is apparent from the evidence that Ms. Liburd had a long standing friendship with Mr. Babrow. She managed a store located on one of Mr. Babrow's properties and was also described as a caretaker for him as he grew older. There is a dispute as to whether Ms. Liburd was employed as a caretaker for which she was paid. She denied this in her defence and therein asserted that she provided assistance to Mr. Babrow due to the closeness of the relationship they shared at the time. By the time of his death, the evidence suggests that Ms. Liburd lived with or spent a significant amount of time with Mr. Babrow and provided care for him. The Last Will and Testament also made provision for two of Mr. Babrow's children, who were also named as his residual legatees in the will. However, there was some intimation during the course of the evidence, that Mr. Babrow may have had other children. That is a fact which remains unclear to the court.
On 23 rd November, 2020, Mr. Babrow executed a codicil in which he amended clause 3(a) of his Last Will and Testament to state that “I hereby give, devise and bequeath absolutely my residential home situate in The Quarter, Anguilla and registered as South East Registration Section 78914B Parcel 116 to Elvesa Liburd as her own absolutely.” The Codicil also went on to specify that section 3(a) of the Last Will and Testament executed on 19 th May, 2017 was no longer of any legal effect.
The claimants all question the validity of this codicil and raise concerns regarding Mr. Babrow's mental capacity at the time of its execution. Mrs. Felicity Horsford Leader (Mrs. Leader) gave evidence before the court. She states that she is the daughter of Celestine and John Horsford. Celestine Horsford was Mr. Babrow's older sister. At some point in her life, Celestine moved to Saint Kitts and resided there. She was married to John Horsford. Mrs. Leader states that sometime during his youth, Mr. Babrow lived with her mother in Saint Kitts. He moved there in order to attend school. He had a close relationship with his sister. Mrs. Leader suggests that her own mother was more like a mother figure to Mr. Babrow given the disparity in age between them. Though she was born sometime later, Mrs. Leader states that she remembers Mr. Babrow living with her parents. She too had a close relationship with him.
Some years later, after he was done with his schooling, Mr. Babrow moved back to Anguilla. For a time he resided on the family property. This property is registered in the Land Registry of Anguilla as Registration Section North Central Block No. 48814B Parcel 41. Mr. Babrow constructed various buildings on the land and eventually built his own home on other property he purchased in The Quarter referred to as Section 78914B Parcel 116. The evidence suggests that Mr. Babrow had become a successful businessman.
Mrs. Leader goes on to state in her evidence that she had a very close relationship with her uncle. Before the Covid-19 pandemic, she visited him in Anguilla almost every year with her husband and/or one or more of her siblings. During those visits they always stayed with Mr. Babrow at the family home in The Valley. After he constructed his house in The Quarter, they also stayed there during visits to the island. She stated that she spoke with Mr. Babrow at least once a month. However, those communications began to decline as Mr. Babrow became difficult to reach.
Mrs. Leader states that at some point she was introduced to Ms. Liburd. She doesn't state in her evidence exactly when that was. However, she states that Mr. Babrow introduced Ms. Liburd to her as his housekeeper. She understood that to mean that she was employed as such. She didn't see any reason to doubt this as whenever she visited the island Ms. Liburd performed tasks for Mr. Babrow which are normally associated with that of housekeeping. Ms. Liburd even picked Mrs. Leader and other family members up from Blowing Point or the airport whenever they visited Anguilla.
Mrs. Leader stated in her evidence that during one of her visits to Anguilla prior to 2017, Mr. Babrow had showed her a will. She could not recall the exact date. However, she states that in that will Mr. Babrow had named his sisters' children as the beneficiaries of the family home; that is Parcel 41. She states that she was not surprised at this because Mr. Babrow was a family man and the land in question was family land which had been owned by his parents. It is stated that Mr. Babrow's parents had operated a small shop on that land. Mrs. Leader states that the shop was operated by Mr. Babrow's mother after her husband died. They also rented out a place towards the back of Parcel 41 where the old court house used to be back in the day. Upon his return to Anguilla, Mr. Babrow started a little store on Parcel 41. Over the years he renovated the place and expanded.
Mrs. Leader went on in her evidence to state that over the years, Mr. Babrow always spoke about leaving Parcel 41 to his family. She states that prior to this she herself was looking for property to purchase in Anguilla. However, when she identified a property for purchase, Mr. Babrow discouraged her and informed her that she would be getting land when he died. Mrs. Leader indicates that she was promised that she as well as her cousins would inherit the land. Mr. Babrow however had her promise that if they were to inherit the land Ms. Liburd would be allowed to remain in occupation of the shop.
Mrs. Leader insisted in her evidence that Mr. Babrow's health had faded over the years. She states that he complained about pain in his legs which was being caused by his veins. He was on a lot of medication. He went to different doctors about it. She claims to have been aware that he had a surgery at Hughes Medical Centre in or about 2015 to 2017. Her evidence does not indicate what precise illness warranted this surgery.
Mrs. Leader went on to state that she visited Anguilla in January 2017. She observed that Mr. Babrow didn't seem as sharp. He seemed, according to her, to be getting down in age. She states that she became aware from Ms. Liburd that Mr. Babrow had driven into a ditch and as such he no longer drove his car. Mrs. Leader was unable to say if Mr. Babrow had surrendered his driver's licence or if the police stopped him from driving. She spoke with Ms. Liburd concerning Mr. Babrow's health. It was her evidence that Ms. Liburd complained that he was out of his mind and hallucinating and that he should not be driving. She also complained that he was being very disgusting.
Mrs. Leader's last trip to Anguilla, prior to Mr. Babrow's death, was January 2019. She states that during this trip, she entered Mr. Babrow's bedroom upon his invitation. He was in bed at the time. When he got out of the bed, she noticed that there was a lot of money on his bed. Mrs. Leader indicates that she was concerned because she found that behavior to be erratic. She states that, Ms. Liburd, who was present, remarked that he was always doing this craziness. Mr. Babrow had also allegedly left his house on at least one occasion and was roaming the streets in only his pajamas and his indoor bed slippers. Mrs. Leader also recalled an argument between Mr. Babrow, Ms. Liburd and someone else by the name of Angela, who cooked food for Mr....
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