Brother prevails in inheritance court battle
A local attorney has successfully defended a lawsuit brought against him by his sister, an American citizen, who had sued him claiming his negligence had resulted in her not being willed a Gilmour Drive property in St Andrew by their mother.
The lawyer, Alan Deans, was also victorious in getting a ruling from the Court of Appeal, for his sister, Patricia Deans, to put up $3 million in security cost for a pending appeal against the Supreme Court decision, half of which is to be in cash.
Failure to do so will result in the appeal being dismissed with cost.
Alan had drafted the will with his mother, who was terminally ill, but she died leaving the document unsigned. As a result, the home was shared evenly among him, his sister, and four other siblings. The mother, the court heard, still had the ability to sign up to two weeks before her death.
The sister, however, who felt that her brother had deliberately cheated her out of the property, took him to court to recover damages for his failure to have the will promptly executed by their mother before her death.
But Alan, who denied being negligent, told the court that he tried on several occasions to get his mother to execute the will when he visited her in the hospital but was given excuses as to why she could not sign the document.
In his defence, he further told the judge that there was no lawyer-client relationship between him and his mother and that they did not have a contractual arrangement, but rather a domestic one.
The judge later found that there were no circumstances in which it could be inferred that an implied contract of retainer existed, thereby giving rise to any liability.
“It was held that a domestic relation was evident of a ‘good son’ assisting his ageing mother and there was no evidence of any act or omission that amounted to negligence,” said a judgment from the Court of Appeal in regard to the security cost application last Friday.
Alan, who had applied to the Court of Appeal for security cost in the aftermath of the Supreme Court judgment and Patricia’s appeal, has asked for his costs of defending the appeal in the amount of $3 million, plus general consumption tax within 30 days of the order.
The brother further asked that the money be placed in an interest-bearing account in the names of his sister’s lawyers, Caroline Hay, QC, and Heywood Blake until the appeal is heard.
He also wanted the court to delay the appeal until the money is paid and for the appeal to be struck out if the money is not paid within 30 days of the order.
Alan, in his affidavit, contended that he has already incurred $14.3 million in defending the claim and estimated that he would face charges of no less than $3.4 million in defending the appeal.
In response, Patricia, in her affidavit, asserted that her grounds of appeal have merits and a real prospect of success.
Among her reasons were that the judge had failed to demonstrate why she accepted her brother’s evidence in relation to whether the will was read to the deceased over that of the caregiver, who had no interest to serve. Patricia also claimed that the judge had also failed to adduce evidence critical to the issue of whether there was an implied contract of retainer. A conflict of interest is also moot.
Patricia noted that she also has shares in another home that was owned by her mother. That property, she said, was sold by her brother in 2018 but he has refused to disburse the sale proceeds to her or any of the other beneficiaries.
Further, while disclosing that she is indebted to her attorneys, contended that the order for her to pay security for costs will likely have the effect of preventing her from pursuing the appeal and described the request from her brother as an “oppressive conduct”.
However, the Supreme Court, in its decision on the security cost, indicated that it has to consider the possibilities of injustice to both party and concluded that the balance of injustice lies with Alan.
While noting that Patricia faces a potential combined cost of $17 million – of $14 million in the Supreme Court and a further $3 million if she loses the appeal – the judge observed that the sister has not proven how she would pay the cost.
The judge ruled that she pay $1.5 million in the account with the lawyers and give security in the amount of $1.5 million within 30 days of the order.
Meanwhile, the high court also threw out Patricia’s application for a stay of taxation proceedings in the Supreme Court pending the outcome of appeal.
The appellant wanted to stay the application so that she would not be subjected to the possibility of paying cost in two courts.
Attorney-at-law Symone Mayhew, QC, represented Alan.