Lucien Joseph v Delia Daniel

• Jurisdiction: Caribbean States
• Judge: ‘Henry JA’
• Judgment Date: 14 October 2024
• Judgment citation (vLex): [2024] ECSC J1014-2
• Court: Court of Appeal (Saint Lucia),Eastern Caribbean Supreme Court
• Docket Number: SLUHCVAP2023/0026

Between:

Lucien Joseph

Appellant

and

Delia Daniel

Respondent

Before:

The Hon. Mde. Vicki-Ann Ellis Justice of Appeal

The Hon. Mr. Trevor M. Ward Justice of Appeal

The Hon. Mde. Esco Henry Justice of Appeal

SLUHCVAP2023/0026

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Notarial will — Whether a notarial will satisfies the requirements of a deed — Civil Code — Code of Civil Procedure — Non Contentious Probate Rules — Whether the learned judge erred by not considering whether the appellant being a beneficiary under the will was entitled to inspect it as an interested party — Whether the learned judge failed to have regard to the relevant principles of statutory interpretation such as the Vagliano Rule and ignored other material considerations such as the likely prejudice to the interested party

The appellant, Mr. Lucien Joseph, filed a petition in the High Court on 8 ^th August 2022 for an order directing legal practitioner and notary royal, Ms. Delia Daniel, to permit him to view and inspect the original of the Will executed in her presence on 18 ^th April 2019 (‘2019 will’), by his mother Hester Joseph (also known as Ann Joseph, Ann Hester Joseph and Esther Joseph). The petition was made pursuant to Article 978 et seq of the Code of Civil Procedure (‘CCP’).

The testatrix made two wills, the first on 23 ^rd October 2015. In that first will, she named Lucien Joseph as her executor. She made her daughter Marie Louis née Joseph the executrix of the 2019 will, which is the subject of this appeal. The second will differs from the first will in material respects. Mr. Joseph is a named beneficiary under both wills. The testatrix died in March 2022. The 2019 will was probated two months later. After probate was granted, Mr. Joseph caused his lawyer to write to Ms. Daniel requesting permission to view and inspect the original 2019 will. Mr. Joseph asserted that he wished to see it to examine the testatrix's signature and determine whether he should challenge it.

Ms. Daniel refused Mr. Joseph's request to view and inspect the 2019 will. She insisted that she was not obliged to accede to his request in the absence of a court order. In her affidavit in response to the petition, she asserted that probate having been granted, it was registered at the Office of Deeds and Mortgages on 2 ^nd June 2022 in Volume 175 as No. 224968 and a copy was served on Mr. Joseph. She averred that Mr. Joseph had not shown any proof of right or interest to demand to view the will, which by law forms part of her notarial records.

The learned judge heard the matter on 19 ^th September 2023 and reserved her decision. On 23 ^rd September 2023, the learned judge determined that in light of the express terms of Articles 978 – 982 of the CCP and the legal principles highlighted in the referenced authorities, that a testamentary instrument ought not to be treated as a deed even when drawn up with the formalities of a deed and made under seal. She noted further that at common law, a deed evidences a transaction while a will does not provide evidence of a transaction. The learned judge ruled that the petition must fail because the 2019 will did not meet the requirements of a deed under the CCP or at law and could not be considered a deed. Having found that the notarial will is not a deed the judge refused to grant the order sought.

Being dissatisfied with the decision of the learned judge, Mr. Joseph appealed to this Court. He advanced five grounds of appeal. At the hearing before this Court on 4 ^th July 2024, Mr. Joseph abandoned his 5 ^th ground of appeal (that is, the failure of the learned judge to consider the overriding objective). The remaining grounds of appeal may conveniently be condensed into two main grounds, namely: a) whether the learned judge erred by failing to consider and make a determination about Mr. Joseph's entitlement as a beneficiary to view and inspect the original will; and b) whether in construing his entitlement to inspect the original will under Article 978 of the CCP she erred in law by failing to consider relevant principles of statutory interpretation such as the Vagliano Rule or other material factors.

Held: allowing the appeal on all grounds except the fourth ground of appeal; setting aside the learned judge's order made at subparagraphs 1 and 2 of paragraph 14 and directing that Ms. Daniel permit Mr. Joseph to view and inspect the 2019 will, that:

• 1. The learned judge did not address Mr. Joseph's claim to be entitled to inspect the will purely as a beneficiary under the will. This was a live issue in the matter and ought to have been resolved. The learned judge erred in not considering it. It therefore fell to this Court to do so. It is established and universally accepted that the Supreme Court has exclusive jurisdiction over the issuance of grants of probate and all related matters pertaining to the administration of a deceased's estate. This includes determining questions on the validity of a testamentary instrument, interpretation of the same and by extension access to relevant records. It is settled law that as part of the Court's exclusive jurisdiction in respect of probate proceedings and in the exercise of its inherent jurisdiction, it is empowered to make orders as necessary to fulfil its mandate in advancing the course of justice and thereby uphold the rights of litigants including beneficiaries.

  Sections 11 and 22(3) of the Supreme Court Act Cap. 2.01 of the Revised Laws of Saint Lucia 2021 applied; Halsbury's Laws of England Vol. 11 (2020) para. 23 applied.

• 2. Articles 782 and 795 of the Civil Code clearly and expressly vest ultimate custody of the original notarial wills in the primary or sole notary who witnessed the execution of a notarial will. The Non-Contentious Probate and Administration of Estates Rules (‘NCPR’) contemplates that the grant of probate and the original will are recorded and registered in the court's registry and also made available to the public for inspection or extraction of copies. This rule (which constitutes subsidiary legislation) is made and must be interpreted subject to any contrary provision in the Civil Code, CCP or other primary legislation. It permits no derogation from the strict letter of Articles 782 and 795 of the Civil Code that a notarial will is to remain in the executing notary's custody and does not become or form part of the physical record or documentation in the Probate registry. With respect to access to original testamentary instruments by a beneficiary, the NCPR has in rule 60 codified the right limited to non-notarial wills and lends tacit acknowledgment to the reality that all probate-related proceedings are inherently judicial and must necessarily uphold the highest standards of probity and be conducted under the court's perpetual scrutiny if the system and its processes are to maintain any credibility. It follows ineluctably that the Court in its inherent jurisdiction is empowered to compel a notary to permit inspection of the original will to any interested party including a beneficiary under the will, or other member of the public in appropriate cases. This authority achieves nothing more than the ends of justice contemplated by and effected in respect of non-notarial wills by rule 60 of the NCPR.

  Articles 782 and 795 of the Civil Code of Saint Lucia Chapter 4.01 of the Laws of Saint Lucia Revised Edition 2014 applied; Rule 60 of the Eastern Caribbean Supreme Court ( Non-Contentious Probate and Administration of Estates) Rules (‘NCPR’) Statutory Instrument 104/2017 considered.

• 3. Neither Article 782 nor Article 795 of the Civil Code prohibits the grant of permission to a beneficiary (by a notary or by court order) to inspect the original notarial will in the hands of a notary or discourages such a practice. Furthermore, the absence of express provision in the Civil Code or CCP stating that a beneficiary is entitled to such permission neither constitutes a prohibition against inspection of the original will by him nor renders the Court impotent to make such an order. In this case, it is incumbent on the court to give recognition to the parallel entitlement of Mr. Joseph as a beneficiary under a notarial will to inspect the original 2019 will. Thus Mr. Joseph by reason of him being a beneficiary is entitled to this access.

  Articles 782 and 795 of the Civil Code Chapter 4.01 of the Laws of Saint Lucia Revised Edition 2014 applied; Article 978 of the Code of Civil Procedure Chapter 4.01A of the Laws of Saint Lucia Revised Edition 2014 applied; Quebec Code of Civil Procedure Chapter C-25.01 considered.

• 4. An analysis of the language and context of the use of a term or expression in the Civil Code is the primary and an indispensable tool of interpretation in construing the statute. In essence, the Civil Code should be interpreted internally or by reference to the language in it without additions or deletions or the use of external aids, unless there is a valid or cogent reason for doing so. This rule of statutory interpretation is called the Vagliano rule. While the learned judge addressed her mind in some way to the codal context principle, she stopped short of conducting a full examination as required to give effect to the Vagliano Rule and the codal context principle of interpretation, because she did not look at the Civil Code for any definition of ‘deed’; or at the other provisions of the CCP for contextual assistance in interpreting the term ‘deed’. The learned judge therefore erred in law by not fully considering and applying the Vagliano Rule in this exercise.

  Bank of England v Vagliano Brothers[1891] A.C. 107 applied; Revue général de droit – The Interpretation of the Civil Code of Saint Lucia by Sir Vincent Floissac (1983) considered.

• 5. The appellant's contention that because ‘will’ as defined in the Civil Code to mean a testamentary instrument, that definition...