Juan v Juan et Al

JurisdictionBelize
CourtCourt of Appeal
JudgeSosa, P.,Morrison, J.A.
Judgment Date22 May 2012
Neutral CitationBZ 2012 CA 7
Date22 May 2012
Docket NumberCivil Appeal No 10 of 2010

Court of Appeal

Sosa, P.; Morrison, J.A.; Alleyne, J.A.

Civil Appeal No 10 of 2010

Juan
and
Juan et al
Appearances:

Mrs. Melissa Balderamos-Mahler for the appellant.

Rodwell Williams SC and Mrs. Julie-Ann Ellis-Bradley for the respondents.

Will - Validity — Revocation of will by marriage.

Sosa, P.
1

I concur in the reasons for judgment and orders proposed in the judgment of Morrison, J.A., which I have been privileged to read in draft. It needs to be added, in view of the lengthy delay in the delivery of this judgment, that, with his usual diligence and keen sense of duty, my learned brother passed me what was then his final draft judgment (but to which paras [34] and [35] have since had to be added), which I read and concurred in with all possible promptness, as long ago as the October 2011 sitting of the Court. Most regrettably, however, delays (caused primarily by factors outside not only his control but also mine) subsequently crept in.

Sosa, P. Morrison, J.A.
INTRODUCTION
2

This is a family story. It is also the story of a great and life-long love, between Santiago Juan (‘Santiago’), late of San Ignacio Town in the Cayo District of Belize, who died on 27 April 2001, and his wife, Carlota Galvez de Juan (‘Carlota’), who died on 3 April 2004. The appellant (‘Rodolfo’) and the respondents (‘Trinidad’, ‘Maria’ and ‘Iris’) are the children of that union. Santiago and Carlota, who were not married to each other when the children were born, were married on 13 May 1993, after having lived together as man and wife for close to 50 years. This case is in essence a dispute between their offspring as to the disposition of Santiago's considerable estate.

3

What is not in dispute is the fact that Santiago made a will, which was dated 1 July 1986 (‘the will’), and of which the Rodolfo and Trinidad are the named executors. In an action filed in the Supreme Court on 10 August 2005, Rodolfo sought an order from the court pronouncing for the force and validity of the will in solemn form of law, and for a grant of probate to himself of the will and estate of Santiago. He also sought a declaration that he was entitled to and had an interest in a portion of Santiago's estate, known as ‘San Lorenzo Farm’, by virtue of a document (“Agreement between Father and Son”) executed by Santiago on 10 July 1997. The claim was opposed by Trinidad and his sisters, who contended that the will had been revoked by Santiago's marriage to Carlota on 13 May 1993. They therefore counterclaimed for an order that the court pronounce in solemn form against the will and declare that Santiago died intestate. They also challenged Rodolfo's claim that the document dated 10 July 1997 vested San Lorenzo Farm in him.

4

The main issue before the trial judge (Awich, J.) was whether the will was revoked by the marriage of Santiago and Carlota on 13 May 1993, or whether it was saved by virtue of having been made in contemplation of that marriage, within the meaning of section 16(1) of the Wills Act (‘section 16(1)’). A related, but subsidiary, issue had to do with the nature of the interest, if any, created in Rodolfo's favour by the document dated 10 July 1997. On 12 November 2009, after hearing evidence of the origins and growth of the family built by Santiago and Carlota, Awich, J. pronounced for the force and validity of the will and made an order that Probate of the will be granted to Rodolfo and Trinidad, as the named executors, with a power reserved to Trinidad to renounce the grant if he so wishes. The judge also ordered that the document dated 10 July 1997 was ineffective to convey any interest in San Lorenzo Farm to Rodolfo and that the property accordingly fell into intestacy.

5

Neither side being completely satisfied by this outcome, Awich, J.'s judgment was challenged by Rodolfo, by a notice of appeal dated 10 March 2010, and by his siblings, by way of a respondents' notice dated 23 March 2010. At the outset of hearing of the appeal, learned counsel for the respondents, Mr. Williams SC, conceded the single point raised by Rodolfo's appeal. That point was that the judge had erred in making an order that San Lorenzo Farm fell into intestacy, the contention being that if, as the judge found, the property had not been successfully alienated by Santiago in his lifetime, it was therefore covered by the residuary clause in the will. The appeal therefore proceeded on the single issue raised by the respondents' notice, that is, whether Awich, J. was correct in finding that the will was made in contemplation of marriage within the meaning of section 16(1).

THE BACKGROUND
6

Before coming to the grounds advanced by the respondents’ notice, I must give a brief account of the background to the case (which I have for the most part extracted, with gratitude, from Awich, J.'s detailed written judgment). On 5 November 1939, Carlota, who was then a single woman of 23 years, married the 29 year old Jorge Hegar (‘Jorge’). In that same year, the second great war of the last century was launched and, shortly after the wedding, Jorge left for the United Kingdom with the intention of enlisting for service in the army. Carlota, who remained in Belize, soon gave birth to the son of this marriage, Antonio Hegar (who plays no further part in this story), but she would hear nothing of Jorge again in his lifetime. A few years later, Carlota, as the judge put it (at para. 9 of his judgment), “started or renewed a relationship” with Santiago and in due course they commenced living together as man and wife. Rodolfo, their eldest child, was born on 27 July 1947, followed by Trinidad, Maria and Iris.

7

Rodolfo's pleaded case was that Carlota and Santiago underwent a ceremony of marriage at their house in San Ignacio Town in November or December 1980. He also gave evidence to this effect at the trial, supported by the evidence of his wife, Margaret Mary Juan. However, Rodolfo was unable to produce a copy of a marriage certificate or any other document in relation to this “marriage” and, when he was cross-examined, it turned out that he had not even tried to obtain a copy of the marriage certificate from the appropriate registry. Both Trinidad and Maria, who also gave evidence at the trial, disputed Rodolfo's claim in this regard, telling the court that all that had happened in 1980 was that, on the advice of their parish priest, Carlota and Santiago had obtained the blessing of the church to enable them, despite the fact that Carlota was still a married woman and they were not married to each other, to receive holy communion. The judge found (at para. 25) that “the ceremony in November or December 1980 was not proved to be a celebration of marriage” and there is no appeal from that finding. In the will, Santiago twice described Carlota as “my common-law wife Carlota Galvez de Hegar” (a fact which the judge, in my view, correctly took into account in concluding that, whatever it was that had actually taken place in December 1980, it was not a ceremony of marriage — see para. 25 of the judgment).

8

In or about July 1992, Maria, to use her words, “decided to investigate the life and whereabouts of Jorge”. For this purpose, Maria and Carlota engaged the services of an attorney-at-law, who, in the last week of April of the following year, was able to obtain a certified copy of an extract of an entry in a Register of Deaths for the United Kingdom, which indicated that Jorge Hegar had died on 5 March 1986, at the Isle of Bute in Scotland. Thus it was that, some 53 years after Jorge's departure from Belize, it now turned out that Carlota was a widow and was accordingly free to marry Santiago. In short order, a date for the wedding was set and it is common ground that Carlota and Santiago did in fact go through the ceremony of marriage on 13 May 1993 at the Sacred Heart Church in San Ignacio Town. The witnesses were Maria and Rodolfo, through whom a certified copy of the marriage certificate was tendered and accepted by the court as an exhibit in the case.

WHAT THE JUDGE FOUND
9

The question which Awich, J. was required to determine at the trial called for a consideration of the meaning and effect of section 16(1), which provides as follows:

“A will shall be revoked by the subsequent marriage of the testator except a will expressed to be made in contemplation of that marriage.”

10

As I have already indicated, the judge found that no ceremony of marriage had taken place between Carlota and Santiago in December 1980. However, he also found, on what was plainly irresistible evidence, that the ceremony which took place on 13 May 1993 was a valid marriage. The question that therefore arose for his decision was whether, pursuant to section 16(1), the marriage had the effect of revoking the will, or whether its validity was preserved by virtue of it having been made in contemplation of that marriage. In approaching this question, Awich, J. considered (at para. 31) that the question whether a particular marriage was in contemplation when a particular will was made is “a matter of construction of the will, based on the meaning of the words of the will in the first place, and secondly if necessary, based on the meaning of the words taking into consideration the circumstances, that is, the facts prevailing”. He also took the view that “evidence of surrounding circumstances is admissible provided the meaning from the words used in the will is first sought”.

11

Despite his “immediate view', as the learned judge put it (at para. 30), that the will had been revoked by the marriage of Santiago and Carlota on 13 May 1993, after having considered the terms of the will, as well as the surrounding circumstances, he concluded as follows (at paras 35–36):

“In this claim Santiago knew that Carlota was married to Hegar and that he could not marry her until she divorced Hegar. In 1980, after some fourty [sic] years of living...

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