Daphne Gumbs v Administrator of the Estate of James Fahie

JurisdictionBritish Virgin Islands
JudgeEllis J
Judgment Date06 March 2020
Neutral CitationVG 2020 HC 16
CourtHigh Court (British Virgin Islands)
Docket NumberClaim No. BVIHCV 2013/0070
Date06 March 2020



Claim No. BVIHCV 2013/0070

Daphne Gumbs
Claimant/Defendant to Counterclaim
Administrator of the Estate of James Fahie


First Defendant/Counterclaimant


Frankie Fahie, Administrator of the Estate of Howard James Fahie


Second Defendant

Ms. Marie Lou Creque, Counsel for the Counterclaimant

Mr. David Penn and Ms. Sheryl Rosan, Counsel for the Defendant to the Counterclaim

Ms. Ruthilia Maximea and Ms. Nellien P. Bute, Counsel for the Second Defendant

Ellis J

Daphne Gumbs, the Claimant herein (now deceased) brought her claim against the First and Second Defendants in which she contended that she was the caretaker of Howard James Fahie (“the Testator”) during his lifetime. The Claimant sought the following relief:

  • a) That her name be entered on the land register as proprietor, with absolute title, on the portion of the land demarcated as Lot 1 of subdivision plan # CA-2940B-025-T located at East Central Registration Section, Block 2940B Parcel 38 where the house was built.

    • i. Relief through promissory and proprietary estoppel;

    • ii. Ownership of the house.

    • iii. The market value of the house.

    • iv. Legal and beneficial interest to the demarcated share of land on which thehouse is built.

  • b) Legal costs; and

  • c) Further or other relief as the court deems fit.


The factual background to that Claim discloses that the Testator died leaving a Will in which he appointed his son Frankie Fahie as the executor of his estate. In clause 10 of the Will, the Testator devised the small two-storey building located at Long Trench to the Claimant. Unfortunately, as at the date of the Testator's death, the land on which the house was built (Block 2940B Parcel 38 located in the East Central Registration Section) was registered in the name of the Testator's father, James Fahie (deceased). James Fahie died intestate and upon his death, his children, Hyacinth Hodge (nee Fahie) and the Testator (who were also beneficiaries under the estate of James Fahie) were granted letters of Administrators in their father's Estate. The administrators' names were thereafter added to the land register as proprietors by transmission. Both administrators are now deceased; however, on 28 th September 2012, Patsy Lake and her mother, Otencia Fahie were appointed as administrators de bonis non in the estate of James Fahie. Otencia Fahie later died leaving Patsy Lake as the sole Administrator. The estate of James Fahie is yet to be fully administered.


The Claim was vigorously defended by both the First and Second Defendants who contended that while the Testator may have had a beneficial interest in the land as at the date of his death, he had no legal title to the land upon which he purported to construct the two storey building. By way of Counterclaim, the First Defendant/Counterclaimant (“the Counterclaimant”) also claimed:

  • a) An injunction restraining the Claimant from collecting any rents on behalf of the estate of James Fahie.

  • b) An account of all rents collected on behalf of the estate of James Fahie, deceased.

  • c) Possession of the property which forms part of the estate of James Fahie, deceased and which the Claimant's (daughter) occupies.

  • d) Costs, and;

  • e) Further relief as the court deems fit.


Both the Counterclaimant and the Second Defendant relied extensively on the decision of Rawlins J. in Doreen Fahie v Frankie Fahie and Sharmaine Fahie (in their capacity as executors of the will of James Howard Fahie) and Daphne Gumbs. 1 In that case the claimant, who was the widow of the Testator sought to challenge the devises made in his Will. She argued that they were defective because she had an equitable interest in the relevant properties. She sought a declaration that the properties which those clauses purport to devise (including the property which is the subject of this Counterclaim), are her properties. She further prayed for an order that Daphne Gumbs give an account for all rents collected from the property from 7 th December 2001.


In that case, the administrator, Hyacinth Hodge (nee Fahie) advanced that the land on which the disputed houses stood comprised about 8 acres which were owned by her father James Fahie, who gave directions prior to his death that the land was to be divided between his 5 children. The land was never divided but remained registered in the name of the administrators of James Fahie's estate.


At paragraph 19 of his written judgment, Rawlins J (as he then was) found as follows:

“The land is registered in the names of the testator and Hyacinth Hodge, his sister. They are holding it for the beneficial owners. Since the land has not been sub-divided, the true beneficiaries of the land and the houses thereon are the heirs of James Ferdinand Fahie. When, therefore the testator purported to devise the disputed houses on that land by clauses 8 and 10 of the Will, he was giving that in which he did not have a defined interest at that time. It may be definitively determined when the estate of his father is administered.”


However, later, at paragraph 20 of the judgment Rawlins J held:

“Initially, I found that the result of the foregoing was that the devises contained in these clauses of the Will fail, are invalid and fall into the residue for the benefit of the residuary legatees under clause 11 of the Will. However, in submissions that I entertained today, I agreed with Mr. Carrington that the issue who takes the beneficial interests under clauses 8 and 10 of the Will in the circumstances of this case have not been fully ventilated. A Court may or may not be able to give effect to the stated intention of the testator in those clauses. The issue should arise for consideration under Part 67 of the Rules prior to the grant of probate. I urge the executors of the Will of the testator to issue a claim under part 67.4 of the Rules at the earliest convenient time.”


With regard to the claim for an account of rents, Rawlins J. held at paragraph 22:

“No sufficient evidence has been adduced to prove that Daphne Gumbs collected rents to warrant an order for Daphne Gumbs to account for rents allegedly collected by her. My advice is that only the executors should collect any rents or other monies that come to the estate of the testator from the disputed properties. They should hold those monies on an interest bearing account in their joint names. Withdrawals should only be made from that account on both signatures and should only be used for the purpose of the upkeep of the properties or to assist with the administration of the estate as far as legally permitted. The monies in the account should be held on trust for the eventual beneficiaries of the disputed properties.”


In an application filed on 1 st July 2014, the Counterclaimant sought to have the Claimant's Claim and her Reply and Defence to Counterclaim struck out. The Counterclaimant's application was successful. However, the Counterclaim remained extant. By application filed 18 th November 2014, the Counterclaimant applied for summary judgment on the Counterclaim. However, as summary judgment is not available in proceedings commenced by way of Fixed Date Claim Form, that application was unsuccessful. The Counterclaim was instead set down for trial. The Court notes that in the interim, Daphne Gumbs passed away and by order of the Court Denise Carey was appointed to carry on proceedings.

The Parties' Cases

The Counterclaimant freely admits that the estate of James Fahie has not been completely administered on behalf of its beneficiaries. She agrees that the Testator is a beneficiary of the estate of James Fahie, but she contends that the two-storey building and the land on which it sits (“the Property”) forms part of the estate of James Fahie. She further submitted that the Daphne Gumbs (now herein referred to as “the Defendant to the Counterclaim”) is not the legal owner or a beneficiary of same and that her admitted collection of rents is unlawful since she is not the beneficiary or the administrator of the estate of James Fahie, deceased.


In her Defence to the Counterclaim, the Defendant to the Counterclaim pleaded that it is an established fact that the Testator was a legally appointed personal representative of his father James Fahie's estate and that the Testator constructed and owns the 2 storey-building. She reiterated that the Testator promised her the Property and subsequently devised the same to her. Following this, Hyacinth Hodge attempted to honour this promise when she directed the subdivision of the land so that the Testator's portion could be demarcated and vested in the Defendant to the Counterclaim. She further contended that she had paid for this subdivision and that she was permitted by one of the then administrators (Carmen Fahie) to enter and reside in the Property.


The issues to be determined in this Counterclaim therefore continue to revolve around the status of the Property which was devised in clause 10 of the Will of the Testator. This requires the Court to first consider whether the Counterclaimant has the locus standi to bring this Counterclaim.

Does the Counterclaimant have the relevant locus standi?

In order to commence an action as an administrator of the intestate estate, the administrator must have been issued with a grant of letters of administration. 2 In the case at bar, the Counterclaim was brought by the administrator de bonis non administratis, Patsy Lake on behalf of the estate of James Fahie. Such a grant arises where a sole or last surviving executor or administrator to whom a grant has been made dies without having fully administered the deceased's estate and the chain of representation does not apply. In those circumstances, it is necessary to appoint under a second grant, an administrator to deal with that...

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