Pickering v Hodge

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Saunders, J.
• Judgment Date: 14 January 1999
• Neutral Citation: AI 1999 HC 2
• Docket Number: Civil Suit No. 43 of 1998
• Date: 14 January 1999

High Court

Saunders, J.

Civil Suit No. 43 of 1998

Pickering

and

Hodge

Appearances:

Mr. C. Laing for the plaintiff

Mr. K. Porter for the defendant

Will - Probate — Mental capacity of testator

Facts: Two wills - The second will was made whilst testator was a patient in hospital - The issue was whether the testator had mental capacity to execute the second will.

Held: The testator was of sound mind and memory when the second will executed - Plaintiff's claim dismissed.

Saunders, J.

1 Mr. John Waddington Hodge, late of Long Bay, Anguilla, died on the 29th September 1996. This action revolves around which of two wills made by him should be admitted to probate.

2 The first of the two wills was made in 1996 shortly before Mr. Hodge died. Kevin Pickering is described in both wills as the foster son of the testator. In the second will, Mr. Pickering does not benefit as favourably as he did in the first will.

3 Mr. Pickering instituted these proceedings against the executor named by the testator. He claimed an Order that the court pronounce against the validity of the alleged will of 23rd June, 1996. He sought to have the court pronounce in solemn form for the will of 23rd October, 1986.

4 The evidence led at the trial went almost exclusively towards the circumstances surrounding the preparation of the wills in question. There is little dispute about the first will. In 1986 the deceased prepared a draft will. He approached Mr Ian Donaldson Mitchell, Q.C. with this will. Mr Mitchell had known the testator since 1976. Mr. Hodge instructed him that it was his desire to have a Will made. In October, 1986 this will was finalised. It was duly executed and attested.

5 Mr Hodge allegedly made a second will. This second will was made on 23rd June 1996, some three months before his demise.

6 The case really boils down to whether the testator had the mental capacity to execute this second Will.

7 In support of his case Mr. Pickering adduced the evidence of Mr Mitchell and of Dr Brett Hodge. Dr. Hodge is the Health Services Director in Anguilla. The plaintiff also attempted to have admitted into evidence a letter written to lawyer Courtney Abel by a Dr. Sankar.

8 I need to digress here in order to deal with this letter and the manner in which it was treated in these proceedings.

9 The testator's second will was made while he was a patient at the hospital. At the time, Dr. Sankar was his attending physician. It would appear that some time after Mr. Hodge had died, in response to a request from Mr. Pickering's then lawyer, Dr Sankar wrote a letter to counsel about the mental condition of the testator at the date of the second will. Dr. Sankar's letter was dated 17th July, 1997.

10 At the discovery stage of the trial this letter was not discovered. Indeed, at the summons for directions, the plaintiff, while in possession of this letter, requested that the parties should dispense with discovery of documents. The defendant agreed to this request in complete ignorance of the existence of such a letter.

11 Mr. Pickering's counsel explained at the trial that it was always their intention to call Dr. Sankar to give evidence and not to rely on the contents of this letter.

12 Dr. Sankar's letter of 17th July, 1997 states emphatically that the testator was suffering from sensory aphasia and hence lacked the mental capacity to make the second will. At the trial the plaintiff was unable to call Dr. Sankar. Instead he sought to have this letter admitted into evidence. Counsel for the defence vigorously objected. Both counsel made submissions on the matter.

13 For Mr. Pickering it was urged that section 2 of the Civil Evidence Act, 1968 (U.K.) permitted the admission of this admittedly hearsay document. The court should admit it in keeping with the inquisitorial approach a court usually adopts in matters of this kind. Dr Sankar was the attending...