(Continues from last week)
He was aware that Thorne had a stroke in 1986/87, which affected his right side; his right leg and hand were affected. He had difficulty walking and writing. He was not aware that after the stroke Thorne became forgetful.
Thorne deteriorated a little but that did not prevent him from doing what he wanted to do. He gave instructions. By deterioration he meant that Thorne complained of his legs.
Preudhomme took Thorne to the beach. He stated that Thorne recovered, he could walk and write after the recovery. Both Preudhomme and Ivy Banfield went to the doctor with Thorne. He did not remember going into Dr. Herry Thompson’s office with Thorne; Ivy Banfield did that not him, he remained outside.
He was not aware that around 2001 Thorne became extremely forgetful. He did not know of Dr. Herry Thompson’s diagnosis of senile dementia in 2001. He was not aware of Dr. Herry Thompson’s diagnosis of moderate dementia.
He stated that he observed no loss of memory in Thorne in 2001. He would tell Thorne something and he would remember it. He did not have to constantly repeat himself to him.
He never inquired of Thorne what the doctors said to him, and no one ever told him that Thorne was suffering from dementia. Ms. Banfield never told him that Thorne was becoming increasingly forgetful. He did not observe the deterioration described by the Claimant.
He did not see the forgetfulness nor the mental deterioration described by George Ferguson nor did he agree with the assessment of Dr. Spencer or Dr. Herry Thompson.
He spoke of Thorne’s regretting putting the Claimant’s name to his account because she was away and he did not see her. Throne told him that he had put her name on his account and that he thought she would stay with him.
The cheques he wrote for Thorne were for if he had to give money to his nephew, Jeselle, his son George Ferguson. Both Thorne’s nephew and son worked for him.
When the land was to be transferred to him he did not inquire of Thorne what the value of the land was, but he testified that he had an idea of what the land was valued at. He testified its valued was between EC $500,000.00 and $1,000,000.00.
He realised that the land Thorne was going to give him was valuable; he knew Thorne cherished the land. He admitted that since being given the land he has contracted to sell it for less than EC$3,000,000.00 but more than
He also admitted that when Thorne got lands in 1980 he did not give him any at that time and that Thorne was strong and active at that time.
At the time of the Deed of Gift both he and Thorne were getting down in age, but Thorne understood what he was doing when he executed the Deed.
Nigel Stewart gave evidence of his meeting with Thorne at the Chambers of Ovid Gill. At the time he gave Thorne the independent legal advice, he was attached to the law firm of Renwick and Payne. He was admitted to the Bar in 1999. He was a partner in the firm from January 2003 -December 2006 when he resigned.
He recalled receiving a phone call from Ovil Gill of Ciboney Chambers on 27th January 2004. He was told that Joshua Thorne wished to transfer property to the Defendants and Mr. Gill asked whether he was prepared to give Mr. Thorne independent legal advice. Mr. Gill sent the Deed of Gift and a draft of the Certificate of independent legal advice to him.
He went to Ciboney Chambers later that day and met with Joshua Thorne in the conference room. They spoke for about half an hour. Mr. Thorne appeared elderly, but in his opinion he seemed physically and mentally fit.
He inquired of Thorne whether he knew the First Defendant, Thorne responded yes, and that the First Defendant was his friend. He, Thome, also acknowledged that he knew the Second Defendant.
He referred Thorne to the description of the property in question, and asked if Thorne owned it and wished to convey it to the Defendants. To both these inquiries Thorne responded in the affirmative.
Stewart explained the conveyance to Thorne and that by signing the conveyance, he would be passing ownership of the property to the Defendant. Thorne indicated that this was what he intended. He signed the conveyance.
Stewart testified that he was satisfied that Thorne understood the nature and effect of the conveyance and what it meant once he signed it. He read the certificate of independent legal advice to Thorne and he indicated that he understood that document as well.
Stewart signed the certificate and Thorne also signed it. The Second Defendant took no part in the proceedings.
The first limb of attack on the conveyance by the Claimant was undue influence.
Undue influence comes into play when one party, usually referred to as the dominant party to a transaction, either actually exerted or is presumed to have exerted influence over the other party to enter into a transaction.
If it is proved that the transaction was as a result of undue influence and therefore not a voluntary act of the donor who exercised his own independent will and judgment with a full understanding of the nature and effect of the actual transaction, if this is not so the transaction is to be considered voidable.
The evidence before the Court is that Thorne and Preudhomme (the First Defendant) were very close friends and that Thorne did trust the First Defendant.
There was a long and close relationship spanning some 40 years, involving business and politics.
It is also clear that the gift to the Defendants was a sizeable piece of land and quite valuable. All this against the background of Thorne being a man who, according to the First Defendant, did what he wanted, and no one
dictated to Thorne what he should do.
It cannot be said that there was not a relationship of trust and confidence between Thorneand the First Defendant which along with the size of the gift, may give cause to raise the presumption.
One has to look at the nature of the relationship between Thorne and the First Defendant at the time of or shortly before the conveyance was executed.
The fact that the First Defendant assisted Thorne (at Thorne’s request) and took him to the beach and the doctor, and wrote cheques on Thorne’s instructions is to my mind insufficient to create a Class 2(8) relationship between the complainant and dominant party.
A study of the totality of the evidence does not lead the Court to believe that the First Defendant had management of Thorne’s financial affairs or his affairs in general such that would lead the Court to find that there was undue influence here.
While the evidence is that the First Defendant did assist Thorne in his financial and daily affairs, this assistance does not rise to the required level to lead the Court to believe that Thorne reposed the necessary trust and confidence in the First Defendant to give rise to the presumption.
Showing that the donor received independent legal advice goes toward negativing the presumption of undue influence. Here it is accepted that Thorne received independent legal advice from Stewart.
Lord Nicholls in Royal Bank of Scotland v Ettridge, stated: “Proof that the complainant received advice from a third party before entering the impugned transaction is one of the matters a Court takes into account when weighing all the evidence.
The weight or importance to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a complainant a proper understanding of what he or she is about to do.”
This Court has to consider whether in light of the medical testimony whether Thorne fully understood and appreciated the legal advice rendered to him by Stewart.
It is also clear that proof of the receipt of independent legal advice does not by itself necessarily show that the gift was free of undue influence.
Here the mental capacity of Thorne has to be considered in light of the advice that Thorne received.
MENTAL CAPACITY OF JOSHUA THORNE
I look at this issue both in the context of the Independent Legal Advice and as an issue on its own. The two doctors who gave evidence on behalf of the Claimant both agree that Thorne was suffering from dementia from about 2001.
Dr. Spencer opined that Thorne’s dementia would have started around the year 2000. Both doctors opined that laypersons would take a different view of Thorne from that of medical practitioners, as lay persons were not qualified to assess the mental capacity of persons.
One telling piece of evidence was that Thome had a stroke in 1986/87. This had an effect on his cognitive processes. Both medical practitioners struck me as reliable witnesses. Dr. Herry Thompson had a history with Thorne since 2001, and
Dr. Spencer from sometime in 2004/2005.
Both Drs. Herry Thompson and Spencer in their evidence were of the view that Thorne by 2004 was incapable of managing his affairs and would not have been able to appreciate the nature and effect of the transaction he purported to make between himself and the Defendants.
While Dr. Spencer testified that he may have had lucid moments it is not for this Court to speculate that on the day in questionwhen he received the independent legal advice and executed the conveyance that he was in fact experiencing one such lucid moment.
I accept the evidence of the doctors that Thorne (despite the fact that he executed several documents between 2001 and 2005) was not of sufficient mental capacity to understand the nature and effect of the conveyance to the Defendants.
This being so, I also find that Thorne would have been incapable of understanding the independent legal advice given to him by Mr. Nigel Stewart. Whether that advice was sufficient in its terms is not an issue given the findings on Thorne’s mental capacity.
I find that while Mr. Stewart did his best to explain to Thorne the nature of the document he was signing and while Thorne may have appeared to him to have understood what was being said to him, based on the evidence of the two doctors, Thorne could not have possibly understood the nature and effect of the Deed of Gift which he signed on 27 January 2004.
I find that the evidence of Drs. Herry Thompson and Spencer to be reliable and in light of the progressive and rapid deterioration which symptomatic of the condition, as well as the medical view that Thorne was suffering from the condition since 2000-2001, that Thorne’s condition had deteriorised to the point where by the 27 January 2004 he no longer possessed the capacity to understand the nature and effect of the document he signed that day. Nor did he have an appreciation of the independent legal advice rendered by Mr. Stewart.
Certainly Dr. Spencer’s evidence of his meeting with Thorne presented a patient who had little or no grasp of what was going on around him. Granted that he examined Thorne after the execution of the document in question, but he opines that this state would have existed in 2004 at the time of the execution of the document.
In conclusion and for the reasons stated the Claimant has proved her case to the satisfaction of the Court. I find that the Deed of Gift signed by Thorne was done at a time when he lacked the mental capacity to have a full appreciation of the nature and effect of the Deed of Gift.
I therefore make the following orders:
(a) A declaration that the Deed of Gift dated 27th January, 2004 between Joshua Thome and Herbert & Geoffrey Preudhomme is not the deed of Joshua Thome and is hereby set aside.
(b) Adeclaration that the Deed of Gift dated 27th January, 2004 made from Joshua Thorne to the Defendants is void.
(c) The Defendants are to deliver up possession of the said Deed of Gift to the Claimant to be cancelled.
(d) Should the Defendants fail to deliver the said Deed of Gift to the Claimant, the Registrar is hereby ordered to cancel the said Deed of Gift.
(e) Costs to the Claimant to be prescribed costs unless otherwise agreed.
I wish to thank Counsel for their assistance.