Lauretta Lorna Stoneham v Bertram Nathaniel Fraser
| Jurisdiction | Bermuda |
| Judge | Mussenden J |
| Judgment Date | 29 November 2023 |
| Court | Supreme Court (Bermuda) |
| Year | 2023 |
| Docket Number | CIVIL JURISDICTION 2020: No. 321 |
[2020] SC (Bda) 92 Civ.
CIVIL JURISDICTION 2020: No. 321
In The Supreme Court of Bermuda
Kyle Masters, Emma Duffy Carey Olsen Bermuda Limited, for Plaintiff
Marc Daniels, Marc Geoffrey Ltd, for Defendant
Testamentary capacity, Dementia, Montreal Cognitive Assessment, Undue influence, Proprietary Estoppel
JUDGMENT of Mussenden J
The sapphire and azure waters of the North Shore gently lap up against the edges of the shoreline properties along with the fresh sea breeze. Sometimes those waters become a tempestuous sea which along with hurricane force winds rage up onto the land and the people.
The Plaintiff, Lauretta Stoneham, (“ Lauretta”), is the sister of the Defendant, Bertram Fraser (“ Bertram”).
Cedelle Albina Prudence Fraser (“ Mrs. Fraser”), who died on 21 December 2019 at the age of 87 years, was the mother of 5 children (the “ Siblings” or the “ Children”). They are in order of birth, Gary Dublin (“ Gary”), Kenneth Dublin (“ Kenneth”), Beverly Tavares (“ Beverly”), Lauretta and Bertram.
Mrs. Fraser's father, Jonathan Edness (“ Mr. Edness”) died in 1975 and gifted her 2 real properties (together the “ Two Properties”) which are located next door to each other on the North Shore waters' edge, as follows:
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a. Wisdom Manor at 121 North Shore Road, Pembroke (“ Wisdom Manor”); and
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b. Aurora House at 123 North Shore Road, Pembroke Parish (“ Aurora House”).
The core of the case is that Mrs. Fraser executed 6 known wills during the course of her lifetime as set out below disposing of her estate including the Properties. The last two Wills, which are the subject of this case, were executed in 2018 (together the “ 2018 Wills”) when she gifted both Properties to Bertram. In each of the earlier 4 Wills, she had gifted Bertram with one property solely. The other property was gifted in the first Will to Lauretta solely and in the other 3 Wills it was gifted to all 5 children.
Thus, Lauretta seeks to set aside the 2018 Wills on the that: (i) Mrs. Fraser did not have requisite mental capacity to make them when she did and (ii) Bertram exercised undue influence over Mrs. Fraser at the time when she executed those two wills. Further, Lauretta seeks to have title to Wisdom Manor, on the basis of promissory estoppel, in that Mrs. Fraser promised Wisdom Manor to her and that she relied on such promise to make financial investments into Wisdom Manor to her detriment.
Mr. Edness gifted 5 other properties (the “ Sibling's Properties”), located across the street from the Properties, to the Siblings as follows:
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a. 118 North Shore Road to Gary;
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b. 120 North Shore Road to Kenneth;
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c. 122 North Shore Road to Beverly;
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d. 124 North Shore Road to Lauretta; and
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e. 126 North Shore Road to Bertram.
Various family members lived at the Properties as follows:
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a. Mrs. Fraser lived in the lower apartment of Wisdom Manor;
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b. Lauretta lived in the upper apartment of Wisdom Manor, together with her family from January 2004 through to late 2015;
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c. Bertram lived at Aurora House;
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d. Mrs. Fraser's sister, Dorothy Smith (“ Dorothy”) lived in the lower south apartment of Aurora House along with her daughter Ruthann Pitter (“ Ruthann”) who was Mrs. Fraser's niece and goddaughter. In November 2016 Dorothy and Ruthann lived with Mrs. Fraser on a temporary basis whilst their apartment at Aurora House was being renovated.
Mrs. Fraser executed 6 known wills in her lifetime, executed several Powers of Attorney and underwent several cognitive assessments as set out below.
The “ 2006 Will” – executed on 20 July 2006. It provided the following gifts, generally:
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a. The sum of $100,000 absolutely to Beverly;
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b. The sum of $100,000 absolutely to Kenneth;
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c. The sum of $200,000 absolutely to Gary. It also declared that the cedar furniture “of and in” Wisdom Manor (the “ Cedar Furniture”) was the property of Gary.
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d. Wisdom Manor to Lauretta absolutely; and
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e. Aurora House to Bertram absolutely.
The “ 2012 Will” – executed on 4 April 2012. It appointed Lauretta and Bertram as joint executors and trustees of Mrs. Fraser's estate and provided the following gifts generally:
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a. Aurora House to Bertram, subject to a life interest, in the lower north apartment to Dorothy;
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b. In the event Bertram should predecease her, Aurora House to her other 4 remaining children in equal shares as tenants in common;
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c. Wisdom Manor to all 5 Children in equal shares as tenants in common;
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d. The sum of $10,000 to Ruthann; and
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e. The residuary of the estate to her 5 children in equal shares.
The “ 2015 Will” – executed on 23 February 2015. It appointed Lauretta and Bertram as joint executors and trustees of Mrs. Fraser's estate and provided the following gifts generally:
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a. Wisdom Manor to Bertram absolutely;
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b. In the event Bertram should predecease her, Wisdom Manor to her other 4 remaining children in equal shares as tenants in common;
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c. Aurora House to all 5 Children in equal shares as tenants in common, subject to a life use of the lower apartment to Dorothy;
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d. The sum of $10,000 to Ruthann; and
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e. The residuary of the estate to her 5 children in equal shares.
The 2017 Power of Attorney (the “ 2017 POA”) — In 2017 Dr. Griffith wrote to Wakefield Quin law firm that Mrs. Fraser had successfully completed a competency assessment (the “ March 2017 CA”). On 28 April 2017 at Wakefield Quin, Mrs. Fraser executed the 2017 POA appointing Lauretta and Bertram as her attorneys.
The “ 2017 Will” – executed on 28 April 2017 at Wakefield Quin. It appointed Lauretta and Bertram as joint executors and trustees of Mrs. Fraser's estate and provided the following gifts generally:
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a. Wisdom Manor all 5 Children in equal shares as tenants in common;
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b. Aurora House to Bertram absolutely;
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c. In the event Bertram should predecease her, Aurora House to her other 4 remaining children in equal shares as tenants in common; and
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d. The residuary of the estate to her 5 children in equal shares.
On 11 May 2018 Dr. Saba conducted a Montreal Cognitive Assessment (the “ May 2018 MoCA”) and prescribes Mrs. Fraser a dementia treating drug, Donepezil. He wrote a letter of the same date to Mrs. Fraser's doctor, Dr. Williams, of the May 2018 CA.
On 15 May 2018 Mrs. Fraser appointed Bertram as her Power of Attorney (the “ May 2018 POA”) at Trott & Duncan.
The “ May 2018 Will” – executed on 22 May 2018 as drafted by Ms. Martin of the law firm of Trott & Duncan (“ T&D”). It appointed only Bertram as executor and trustee of Mrs. Fraser's estate and Lauretta was named as the alternative appointee. It provided the following gifts generally:
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a. Wisdom Manor to Bertram absolutely;
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b. In the event Bertram should predecease her, Wisdom Manor to her other 4 remaining children in equal shares as tenants in common;
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c. Aurora House to Bertram absolutely;
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d. In the event Bertram should predecease her, Aurora House to her grandchildren (Bertram's children): Cherie Allen, Kaleo Place and Isaiah Fraser in equal shares absolutely; and
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e. The residuary of the estate to her 5 children in equal shares.
The May 2018 Will also provided that it was Mrs. Fraser's “ WISH and DESIRE that Bertram will maintain Wisdom Manor as a guest house for as long as possible.” It went on to provide that it was her “ WISH and DESIRE that the net proceeds derived from the operation of Wisdom Manor as a guest house be paid out annually in equal shares amongst her remaining children for the duration of their lives or for as long as Wisdom Manor remains in operation as a guest house.”
The “ October 2018 CA” — On 15 October 2018, Mrs. Fraser once again underwent a cognitive assessment by Dr. Griffith who asserted that she exhibited “ good cognitive ability in sound judgment and is capable of making decisions about her health and well-being. Mental status has not changed since her previous visit to see the neurologist Dr. Saba earlier this year in May.”
The “ October 2018 POA” — On 19 October 2018, at Terra Law Limited (“ TLL”), Mrs. Fraser revoked the May 2018 POA and on the same day executed an Enduring Power of Attorney dated 19 October 2018 appointing Bertram as her attorney with Anthony Evans as an alternate.
The “ November 2018 CA” – On 2 November 2018 Mrs. Fraser underwent a cognitive assessment by Dr. Saba. He prepared a written report.
The “ November 2018 Will” – executed on 8 November 2018 as drafted by Ms. Francis of TLL. It appointed only Bertram as executor of Mrs. Fraser's estate and Anthony Evans as an alternative executor. It provided the following gifts generally:
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a. Wisdom Manor and Aurora House to Bertram absolutely; and
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b. The residuary of the estate to her 5 children in equal shares.
The November 2018 Will records Mrs. Fraser's “WISH and DESIRE” that Bertram maintain Wisdom Manor as a guest house but makes no provision for the distribution of the profits.
By a Generally Endorsed Writ issued on 13 October 2020, subsequently amended on 26 November 2020, and the SOC dated 26 November 2020 Lauretta commenced the present action. She claimed that her mother, Mrs. Fraser, was not of sound mind, memory or understanding and lacked the requisite mental capacity to execute the May 2018 Will and the November 2018 Will at the date upon which each of them were executed.
The SOC set out the particulars of the claims.
Lack of Mental Capacity – The SOC set out a number of particulars including that:
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a. In 2015, medical professionals recommended that Mrs. Fraser undergo a cognitive...
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