Hunte et Al v Harrigan

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Edwards, J.
• Judgment Date: 16 January 2004
• Neutral Citation: AI 2004 HC 1
• Docket Number: 3 of 1999
• Date: 16 January 2004

High Court

Edwards, J.

3 of 1999

Hunte et al

and

Harrigan

Appearances:

Mr. Martin Mann Q.C

Mr. William Hare, Mr. Alex Richardson for the claimants

Ms. Joyce Kentish, Mr. E. Gaskin for the defendant

Inheritance and succession - Will — Preparation and execution — Whether defendant unduly influenced her mother the deceased to change provisions of a 1996 will — Claim brought by defendant's siblings — Claimant's case not proved — Judgment for defendant.

Introduction

Edwards, J.

1 The parties are the lawful children of Mrs. Thelma Hunte (deceased). She died on the 4th October 1998 at the age of 86 years.

2 During her lifetime she inherited 1/5th share of the estate of her father Joseph Benjamin Hodge, at Junks Hole including Scrub Island in Anguilla, comprising 870 acres.

3 In her lifetime she disposed of 18 acres to family members without any dispute. As at the 31st August, 1996 she had approximately 108.37 acres from her portion of the Junks Hole Estate.

4 This substantial legacy of the deceased, includes property which is regarded as prime land in Anguilla.

5 The legacy has created a family feud among her 8 children. This discord is threefold. It relates to:

• (a) a disposition she made in her will dated 31st August 1996, which she eliminated in her will dated 22nd August 1998,

• (b) a gift she made from this legacy to one child Mrs. Mona Harrigan the defendant, on the 16th October 1997,

• (c) a gift she made to the same child from this legacy on the 3rd September 1998.

6 The physical illness and senility of the deceased, at the time when she bestowed the gifts and made her last will, and the nature of Mrs. Harrigan's relationship with her at the time of the transactions, have fuelled the suspicion of Mrs. Harrigan's siblings.

7 They believe among other things, that Mrs. Harrigan took advantage of their mother's infirmities and vulnerability, and artfully pressured and confused her into effecting these transactions for her benefit.

8 The claimants Mr. Eyston Hunte (Dr. Eyston) and Ms. Wren Hunte (Ms. Wren) are 2 of Mrs. Harrigan's siblings. They have a power of attorney from each of the other siblings to bring this action against Mrs. Harrigan relating to the 2 gifts she received from the deceased.

9 The deceased had 7 lawful children and she raised 2 of her nephews Mr. Rhys Hodge and Mr. Cardigan Hodge as her own children.

10 Besides the parties, the other 4 lawful children are Mrs. Pansy Richardson, Mr. Wishbourne Hunte (Dr. Wishbourne), Mr. Patterson Hunte (Mr. Pat) and Mrs. Afy Hunte Hudson (Ms. Afy). Mr. Rhys Hodge is included as one of the 5 siblings who have authorized bringing this claim relating to the 2 gifts against Mrs. Harrigan.

11 The claim seeks to set aside the 2 land transfers to Mrs. Harrigan and the last will of the deceased, on the grounds of undue influence or duress. There is also a request to declare the will made on 31st August 1996 to be the last will and testament of the deceased.

12 “Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused”: ( Royal Bank of Scotland PLC v Etredqe. (No. 2) (HL (E) [2001 3 W.L.R. 1027, 1029).

13 Where a relationship of trust and confidence exists between 2 persons, the court will set aside a gift or other transaction which has been procured by one of them from the other, through unconscionable conduct or domination and abuse of that relationship.

14 Undue influence in probate has been defined as “pressure of whatever character if so exercised as to overpower the volition without convincing the judgment”. (Per Sir J. P. Wild in Hall v. Hall (1868) L.R. 1 PD 481, 482 cited in the treatise Williams Mortimer and Sunnucks on Executors, Administrators and probate, (2000), paragraph 13-46). It is when the will of the testator is coerced into doing what he does not wish to do.

15 The common law disapproves the use of physical coercion or other forms of coercion by one person as a means of persuading another person to enter into a transaction. When such persuasion occurs, the ground of relief of duress is available.

The Pleadings

16 The siblings by their re-amended statement of claim filed on the 19th March 2002, have alleged that Mrs. Harrigan unconscionably procured the execution by the deceased of 2 instruments of transfer in her favour. The first was on the 16th October 1997, whereby the deceased transferred parcel 10 of her Junks Hole including Scrub Island property, comprising approximately 7.06 acres to Mrs. Harrigan. The second was on the 3rd September 1998 when the deceased transferred parcel 41 of the said property, comprising approximately 4.4 acres to Mrs. Harrigan.

17 They allege that Mrs. Harrigan's conduct, and the circumstances surrounding these 2 transfers amount to equitable fraud involving undue influence, or duress.

18 Regarding the will of the deceased executed on the 22nd August 1998, they allege that the deceased lacked the testamentary capacity to execute this will. They allege that since the only change she made from her previous 1996 will, was to omit the gift of 5 acres of land to Atlin Harrigan the former husband of Mrs. Harrigan, she was then acting under the duress or undue influence of Mrs. Harrigan.

19 The undue influence alleged concerning this will, is in probate.

20 Regarding all 3 transactions they aver that since the deceased at the time was sick, old and under the absolute control of Mrs. Harrigan, that she executed these transactions under the duress or undue influence of Mrs. Harrigan.

21 Mrs. Harrigan has denied that the deceased at the material times had any impairment to her mental faculties, despite her physical incapacity. She has denied dominating the deceased while taking care of her. She has denied confusing, coercing, deceiving or tricking her, or engaging in any of the alleged unacceptable conduct amounting to fraud, duress or undue influence.

Issues

22 The issues raised by the pleadings and evidence are:

• (a) Whether or not the deceased at the relevant dates, had the required mental capacity to execute the transfers of parcels 10 and 41 to Mrs. Harrigan and her will dated 22nd August 1997; and

• (b) Whether or not the 2 transfers and the said will were procured by the undue influence or duress of Mrs. Harrigan.

23 Before dealing with these issues, it is necessary to consider further the applicable law on undue influence in equity and the burden of proof.

Burden of Proof for Undue Influence in Equity

24 The equitable relief of undue influence has 2 categories, actual or expressed undue influence and presumed undue influence. Counsel for the parties agree that the circumstances and facts in the instant case provide no room for actual or expressed undue influence to operate. Consequently the claim relating to the 2 transfers can only depend on presumed undue influence.

25 It is evident that the relationship that existed between Mrs. Harrigan and the deceased was not one of the well defined relationships to which the presumption of undue influence would apply unless the contrary is proved.

26 The authorities show that in the first instance therefore, the siblings must establish the existence of a relationship of trust and confidence between the deceased and Mrs. Harrigan, of such a nature, that it is fair to presume that Mrs. Harrigan abused the relationship in procuring the deceased to execute the 2 transfers in her favour: (Snell's Equity 15th ed (2000) para 38–09 citing Royal Bank of Scotland PLC v. Etridge (No. 2) [1998] 4 ALL E.R. 705 at 711).

27 Further, the siblings must establish that the degree of trust and confidence was such that at the material times Mrs. Harrigan either –

• (a) was or had become adviser of the deceased; or

• (b) had been entrusted with the management of her affairs; or

• (c) had been entrusted with the deceased's everyday needs; or

• (d) for some other reason was in a position to influence the deceased into effecting the 2 transfers in her favour: ( Nourse, L.J. In Goldsworthy v. Brickell (CA) [1987] Ch. 378, 401).

28 “The degree of trust or confidence need not amount to domination; simple reliance is sufficient” — (Snell's Equity 13th ed (2000) at para 38–13 page 614 for citing Goldsworthy v. Brickell explaining National Westminster Bank PLC v. Morgan [1985] AC 686).

29 It is essential also for the siblings to establish that the deceased made “a gift so large, or entered into a transaction so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary men act”: (Per Nourse, L.J. in Goldsworthy v. Brickell [1987] CH 378, 401).

30 Once these prerequisites are established by the siblings, the law reverses the burden of proof. The stage is set for the court to infer that, in the absence of a satisfactory explanation from Mrs. Harrigan, the 2 transfers could only have been procured by undue influence, (Lord Nicholl's of Birkenhead in Royal Bank of Scotland PLC v. Etridge (No. 2) (HL (E)) [2001] 3 WLR 1021, 1030).

31 To rebut this presumption of undue influence, Mrs. Harrigan must show that the deceased understood what she was doing and intended to do it. She must prove that the deceased gave her the 2 parcels of land as a result of full free and informed thought about it.

32 Proof that the deceased received independent advice from a third party may not be conclusive evidence to rebut the presumption in all cases. “… A person may understand fully the implications of a proposed transaction for instance a substantial gift and yet still be acting under the undue influence of another”: (per Lord Nicholls of Birkenhead in Royal Bank of Scotland PLC v. Etridge (No. 2) (HL (E)) 3 WLR at page 1032 para 20).

33 The...