Doleta Bean v Anthony Caisey

• Jurisdiction: Bermuda
• Judge: Mussenden J
• Judgment Date: 19 October 2023
• Docket Number: CIVIL JURISDICTION
• Court: Supreme Court (Bermuda)

In the matter of the Estate of Howard Caisey (Deceased)

Between:

Doleta Bean

Plaintiff

and

Anthony Caisey

(As Executor of the Deceased's Estate)

1st Defendant

and

Keith Wayne Caisey

(As Sole Beneficiary of the Deceased's Estate)

2nd Defendant

[2023] SC (Bda) 12 Civ.

CIVIL JURISDICTION

2020: No. 198

In The Supreme Court of Bermuba

Wills, testamentary capacity, dementia, undue influence, sound disposing mind, coercion, fraudulent calumny

Appearances:

Jaymo Durham, Keiva Maronie-Durham, Amicus Law Chambers, for Plaintiff

Paul Harshaw, Canterbury Law Limited, for Second Defendant

JUDGMENT of Mussenden J

Introduction

1 The Plaintiff (“Doleta”) is the daughter of the now deceased Barbara Clair Caisey, also known as Julie Caisey (“Julie”) and Howard Frederick Caisey (“Father”) (together the “Deceased Parents”).

2 The First Defendant (“Anthony”) is the eldest son of the Father. By two Wills executed on 21 December 2010 and 9 August 2012, described below, the Father appointed Anthony as the Executor and Trustee of his estate. Anthony has not participated in these proceedings. On 21 April 2022 attorney Mr. Valdon Caesar was granted leave to appear as amicus curiae when he informed the Court that Anthony was unable to participate in the proceedings due to medical circumstances.

3 The Second Defendant (“Keith”) is the second eldest son of the Father.

4 The property situated at #3 Riviera Road, Warwick (the “Property”) is the subject matter of this case.

The Children

5 The Father had children with three mothers as follows:

• a. Joulanda Brown-Robinson (“Joulanda”) with her mother;

• b. Anthony and Keith (together the “Defendants”), Andre, Craig and Karen with their mother; and

• c. Doleta, Maria Caisey (deceased in as she died in 2018) (“Maria”), Damina Caisey (“Damina”) and Julian Caisey (“Julian”) (together “Julie's Children”) with their mother Julie Caisey.

The Wills and the Vesting Deed

6 Julie executed a Will on 23 February 1992 (“Julie's 1992 Will”). In essence, the beneficiaries of Julie's 1992 Will were husband, and if he did not survive her, then her children. Julie died on 24 February 2003 leaving the Father surviving and entitled to the Property.

7 The Father executed several Wills as set out below. He died on 5 August 2018.

8 The “1992 Will” — a Will executed on 23 February 1992 (with the backsheet stating 1993). Similar to Julie's 1992 Will executed on the same date, in essence the beneficiaries of the 1992 Will were his wife, and if she did not survive him, then Julie's Children.

9 The “2006 Will” — a Will executed on 10 November 2006. The Father revoked all prior Wills and Testamentary dispositions and declared the 2006 Will as his Last Will and Testament. The beneficiaries of the 2006 Will were Julie's Children and Keith.

10 The “2010 Will” — a Will executed on 21 December 2010. The Father revoked all prior Wills and Testamentary dispositions and declared the 2010 Will as his Last Will and Testament. The sole beneficiary of the 2010 Will was Keith.

11 The “2012 Will” — a Will executed on 9 August 2012 which was similar in all respects to the 2010 Will. The Father revoked all prior Wills and Testamentary dispositions and declared the 2012 Will as his Last Will and Testament. The sole beneficiary of the 2012 Will was Keith.

12 By a Vesting Deed dated 19 November 2019 (the “Vesting Deed”) the Property was vested in the name of Keith.

Background and Pleadings

The Writ and Statement of Claim

13 By a Specially Indorsed Writ of Summons issued on 24 June 2020 and subsequently amended, the Plaintiff commenced the present action for: (a) a declaration that the 2012 Will is void in that the Father lacked the requisite testamentary capacity at the time of drafting the 2012 Will; and (b) a declaration that the 2012 Will is void as having being procured by the undue influence of the Anthony and Keith.

14 At the start of the trial I granted leave to amend for: (a) a declaration that the 2010 Will is also void in that the Father lacked the requisite testamentary capacity at the time of drafting the 2010 Will; and (b) a declaration that the 2010 Will is void as having being procured by the undue influence of the Anthony and Keith.

15 The Particulars of Claim (for lack of testamentary capacity) set out that the Father had a lack of testamentary capacity as he was suffering from dementia. Additionally, the father was under a delusion in relation to potential beneficiaries, including Doleta, at the material time in making the 2010 Will and the 2012 Will in that his mind was poisoned against them by Anthony's and Keith's dishonest aspersions on their character. Consequently, he was unduly influenced to wrongly believe that they had intentions of taking the Property that he owned from him.

16 The Particulars of Claim (for Undue influence) set out that Anthony and Keith exercised a relationship of trust and confidence with the Father in that they are his sons and assisted the Father with his financial affairs and in particular, on 10 November 2006 (the “2006 POA”) the Father appointed Anthony as his power of attorney (“POA”). Thus, there was an ascendancy between Anthony and Keith and the Father as the father was an elderly man, mentally and physically frail and vulnerable to the Defendants, in his mid-80s at the time of the purported execution of the 2012 Will. Further, Keith, being of a dominant character, exhibited influence over the Father, as it related to decisions affecting Doleta and her siblings' occupation of the Property. Also, Anthony and Keith exerted undue influence over the Father by either coercion or by fraud to the extent that his will was overborne and he did not act as a free agent in making his last testamentary disposition. Further, or in the alternative, the Defendants poisoned the Father's mind against Doleta and Julie's Children in that they cast dishonest aspersions on their character (that they had defamed the Father to the neighbors, lied about him to the police, that they had intentions of taking the Property from him) having known those aspersions were not true or having not cared as to the truthfulness of the aspersions, and thereby committed fraudulent calumny in regard to the Father.

Relief Sought

17 Thus Doleta sought declarations that:

• a. The 2010 Will and 2012 Wills were void as the Father lacked testamentary capacity and the Defendants had exerted undue influence over the Father in making those Wills;

• b. The 2006 Will is affirmed; and

• c. The Vesting Deed be set aside.

The Defence and Counterclaim

18 After a request for Further and Better Particulars were answered, a Defence and Counterclaim dated 2 December 2020, subsequently amended, was filed by Keith. He generally denied the claims and in respect of the time period and execution of the 2012 Will: (a) denied being aware of any cognitive deficit on the part of the Father; (b) denied that the Father had a cognitive deficit; (c) denied being aware of any undue influence being exerted on the Father; and (d) denied exerting any undue influence on the Father. Further: (a) he did not admit that a relationship of a father and son creates an ascendancy or dependency; (b) denied that the making of a will six years after making a previous one calls for an explanation; or (c) that preferring one child over other children in a will calls for an explanation.

19 The Counterclaim set out that by an Originating Summons in the Supreme Court (2020: No. 44) (the “2020 Possession Action”), Keith sought to have Doleta removed from the Property. It was only in relation to the 2020 Possession Action that this action was commenced some six months later. Therefore, the present action was an abuse and was brought for a collateral purpose such that this action should be dismissed and Doleta should be condemned in indemnity costs. Thus, Keith counterclaimed in this action for: (a) possession of such portions of the Property Doleta occupied at the date of the trial; (b) damages against Doleta for trespass in the amount of $1,000 per month from 1 December 2019 and continuing until trial; and (c) costs on an indemnity basis.

The Defence to the Counterclaim

20 Doleta denied the claims in the Counterclaim. She stated that she sought in the Supreme Court proceedings 2012 No. 313 (the “2012 Equitable Interest Action”), an equitable interest in the Property against the Father. In the current proceedings she seeks an interest by way of testamentary disposition, but for the undue influence exerted by the Defendants. She averred that she is entitled to a beneficial interest in the Property and denies the relief claimed by Keith.

Ruling to exclude the purported medical expert evidence

21 During the trial, I ruled that the purported ‘expert evidence’ of Dr. Harries in respect of whether the Father was suffering from dementia at the material time of executing the 2012 Will — and possibly the 2010 Will — was to be excluded.

22 Black's Medical Dictionary describes dementia as “An acquired and irreversible deterioration in intellectual function. … The disorder is due to progressive brain disease. It appears gradually as a disturbance in problem solving and agility of thought which may be considered to be due to tiredness, boredom or depression.”

23 The Particulars of Claim in respect of the purported lack of testamentary capacity is set out above. Dr. Harries' report dated 11 December 2014 (the “2014 Medical Report”) concluded as follows: “From what I gathered in today's assessment Mr. Caisey would not have the mental capacity to make complex legal and or financial decisions especially in the context of a convoluted dispute.” When queried as to whether that statement meant that the Father lacked mental capacity in August 2012, when he executed the 2012 Will and whether he intended to convey that impression, Dr. Harries stated “I can neither agree nor...