Legal wrangle over will leaves senior broken
A senior citizen who contested two wills drawn up for her father when she believes he was suffering from dementia now faces losing everything she owns to pay for the legal battle.
Retired government worker Elaine Charles, 70, told The Royal Gazette she was “petrified of being thrown into the streets with nowhere to go” after lawyers who acted in the probate case over her father’s estate won costs against her.
A three-bedroom cottage left to Ms Charles by her mother will go up for auction on Tuesday by order of the Provost Marshal General, and the Warwick condominium she lives in with her husband will also have to be sold to pay debts she estimated to be about $500,000.
Ms Charles said she had already paid hundreds of thousands of dollars to her own lawyers and that she had lost all hope of justice for herself.
She added she decided to go public about her case to warn other people of the danger of taking legal action without understanding the risks, being “stripped of all dignity, treated as an annoyance and hounded for money”.
Ms Charles’s story goes back more than 20 years and involves a former deputy premier, a Cabinet minister, members of a Masonic lodge and several prominent lawyers.
At its heart is a house on Hamilton’s Cedar Avenue called “Fubler Villa”, which belonged to her father, John Howard Fubler Taylor.
Ms Charles said her father took steps to convey the property to her in 1995 so that it could pass to his grandsons, but she asked him to hold off because she was involved in a divorce and did not want to complicate the proceedings.
Her mother died two years later and she claimed her father’s mental state had deteriorated, although dementia was never diagnosed.
Ms Charles said she decided not to raise the issue of “Fubler Villa” with him because she believed he was no longer of sound-enough mind to make a will.
She cared for him all her adult life and even took him on her honeymoon in 1997 after she remarried.
Ms Charles said she watched Mr Taylor’s mind “disappear piece by piece” during his latter years.
Ms Charles assumed after Mr Taylor died in October 2007, with dementia listed as one of the causes on his death certificate, that he had not left a will and that his assets would be distributed fairly by the courts.
She was unaware Mr Taylor had made a will in June 1999, when he was aged 85, in which he left “Fubler Villa” to the Masonic Abercorn Lodge where he was a member.
Clarence James, the former deputy premier and a fellow Abercorn member, and Ms Charles’s estranged brother, Albert Taylor, were named as executors of that will.
Mr Taylor also made a second will in July 2002, when he was 88, this time leaving “Fubler Villa” to Albert Taylor for life, with the remainder interest to the two sons of his niece, Shirley Pearman.
Ms Pearman’s husband, Roderic Pearman, was executor of the second will, along with Iris Davis, a friend of Mr Taylor’s.
Ms Charles believed her father was not of sound mind when the wills were drawn up and asked Supreme Court to rule that they were invalid, but lost the case in 2014.
Puisne Judge Stephen Hellman said in his ruling: “Mrs Charles stated that her father had a relationship with her children and that had he been of sound disposing mind he would have left them something.
“In oral evidence, she stated that she and her father had a very strong attachment, although it was not one of loving tenderness.
“Despite all this, Mr Taylor left Mrs Charles and her children nothing. I am satisfied that ... his failure to do so was not, on the face of it, evidence of lack of testamentary capacity.
“I am also satisfied that Mrs Charles’s disappointed expectations go a long way towards explaining why she has challenged the validity of both wills.”
The Supreme Court judgment in the probate case showed that lawyer Michael Smith, also a Freemason, drew up the first will.
Mr Smith gave evidence that in or after September 1999, Mr Taylor came to his office to change the will, but the conference came to a close when the elderly man stopped making sense and became “frustrated and abusive”.
Mr James, who died in 2016, was present at the meeting and corroborated Mr Smith’s account.
The second will was drawn up by Kim Wilson, now the Minister of Health, when she was managing partner at the law firm Trott & Duncan. Her evidence was that she had no reason to doubt he was of sound mind.
Psychiatrist Kenneth Shulman, an expert witness, told the court the September 1999 incident in Mr Smith’s office was perplexing but appeared to be isolated.
Dr Shulman said his clinical opinion was that Mr Taylor appeared to be “grossly cognitively intact” in 1999 and 2002.
Mr Justice Hellman concluded that both wills were “properly executed and appear rational on their face”.
He said the court presumed Mr Taylor did have the capacity to make the wills and the “evidential burden” was on Ms Charles to “raise a real doubt”.
The judge said: “Mrs Charles has failed to raise any real doubt about Mr Taylor’s mental capacity on the date of execution of either will. Even if she had done so, the defendants have satisfied me that Mr Taylor was of sound disposing mind when both wills were executed.”
Costs were awarded to the defendants, leaving Ms Charles with debts to Paul Harshaw, lawyer for Mr James and Mr Taylor, and Trott & Duncan’s Delroy Duncan, counsel for Mr Pearman and Ms Davis, running to hundreds of thousands of dollars.
Ms Charles described contesting the wills as a “horrendous legal ordeal” and said she would never have done so had she known she could lose everything if she lost.
“I wasn’t looking for anything for myself,” she said. “I was trying to ensure my father’s wishes were carried out.”
She urged others to think carefully before contesting a will, engaging a lawyer or getting involved at all in the court system as a litigant.
She questioned where a person could turn for help if they suspected a will had been drawn up for a loved one when they were not of sound mind.
Ms Charles asked: “How can someone who approaches the court for help end up losing all they have worked for all their life and face homelessness in their senior years?”
Claudette Fleming, of Age Concern, said she could not comment on the specifics of Ms Charles’s case.
She added it was true that “at times it can be difficult to ascertain whether someone is of sound mind and it goes without saying that it is most difficult when the senior has passed before the impact of a decision made beforehand is subject to scrutiny”.
Dr Fleming said: “If there is documented proof that a person is non compos mentis — that is, lacking mental clarity — then that documentation can be used as a basis of evidence for civil action. However, without such proof it will be very difficult to substantiate claims, as perhaps Ms Charles has discovered.
“It is heart-wrenching to believe an injustice has occurred yet not be able to have your claim substantiated. We are empathetic to the strain and adverse consequences that these type of events can cause for seniors and their family members.”
Ms Charles was at first represented in the probate case by the law firm Marshall Diel & Myers and then by Rick Woolridge.
After she ran out of money in the wake of significant legal bills, she represented herself.
She complained about her legal representation, and about Trott & Duncan and Mr Harshaw, to the Bar Council’s professional conduct committee.
The complaint against MDM was dismissed. The outcome of the other complaints is not known.
Jeffrey Elkinson, chairman of the committee, said he was not in a position to comment because he was off island and without access to the files. No one else at the Bermuda Bar Association responded to a request for comment.
Mr Harshaw said: “I have no instructions to discuss Elaine Charles or her case, and I really do not expect to get any such instructions. The judgment should be self-explanatory.”
In response to specific questions, he added: “Unfortunately, each of the matters you raise is either confidential or impossible for me to answer.”
Mr Duncan shared the 2014 judgment and said it set out “everything I could assist you with”.
Michael Smith did not respond to an e-mailed request for comment nor did Kim Wilson or Katie Tornari, the lawyer at MDM who handled Ms Charles’s case.
Ms Pearman declined to comment and her husband could not be contacted. Nor could Albert Taylor or Ms Davis.
No one at Abercorn Lodge could be contacted for comment.
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