Eileen Papone & Lourie Anthony v James Anthony [Eastern Caribbean Supreme Court]
| Jurisdiction | British Virgin Islands |
| Judge | HARIPRASHAD-CHARLES J |
| Judgment Date | 28 July 2011 |
| Court | High Court (British Virgin Islands) |
| Docket Number | Claim No. BVIHCV2010 / 0113 |
| Date | 28 July 2011 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
Claim No. BVIHCV2010 / 0113
Mr. Lewis Hunte QC and Mr. Richard W. Arthur Snr of Hunte & Co. Law Chambers for the Claimants
Mr. Glenroy Forbes of Forbes Hare for the Defendant
Administration of intestate estates — contentious probate — claim to remove an administrator — whether administrator a trustee — whether breach of trust — return of proceeds of sale — res judicata — limitation of actions — laches and acquiescence
The claimants and the defendant are three of the five surviving children of the same mother and father, both deceased. The defendant was duly appointed administrator of the estates of their parents. Subsequently, a dispute arose over his administration and in 2009, litigation commenced. Following a mediation settlement agreement, by consent order the claimants were added as joint administrators of the estates with the defendant. Since that time, the claimants depose that the defendant has refused to discuss his prior handling of the estate with them, and refused to render an account of any moneys received. The claimants allege that the defendant made two dispositions of land from their father's estate and seven dispositions from their mother's estate without the beneficiaries' consent. Six of the dispositions from the mother's estate took place in 1991 and 1992. In 2010, the claimants brought this action, seeking orders that the defendant pay over to them four-fifths (4/5) of the proceeds of the sale of lands which belonged to the estates of their parents which he [the defendant] disposed of without the consent of any of the beneficiaries and that he [the defendant] be removed as administrator.
The defendant denies any improper dealings on his part. He says that the beneficiaries were all aware of and agreed to all the disputed transactions and that the claims against him are ill-founded. The defendant also argues that the claimants' claim must fail for because (1) The claimants brought substantially the same action before the courts in the previous claim and are therefore precluded from prosecuting this one by the doctrine of res judicata, or cause-of-action estoppel; (2) this claim is an abuse of the process of the court; (3) the majority of claims for account are time-barred; and (4) the claimants were aware of the sale of the parcels of land for many years and are thus estopped from bringing these proceedings. The defendant also says any proceeds of sale received were expended towards the administration of estate land.
On whether the defendant should be removed for committing a breach of trust by failing to administrate the estates,
[1] The claim is not barred by res judicata. The terms of the consent order in no way address the lawfulness or otherwise of the disputed dispositions, or the defendant's liability to account or make compensation: Bank of Montreal v. Jarjoura [2007] A.J. No. 1394 followed.
[2] In addition, the claimants are not barred from bringing the claim in their capacity as administrators of the estates because as administrators, they maintain a different interest than they do as beneficiaries: Pentland-Clark v Macelhose [2009] ScotCS CSOH_153 followed.
[3] There has been no previous decision upon the facts in issue and thus there is no re-litigation upon the issues sufficient to ground an abuse of process: Arthur JS Hall v Simons, Barratt v Ansell (t/a Seddon (a firm)), Harris v Schofield Roberts Hill (a firm) [2003] 3 All ER 673 followed.
[4] The claimants succeed in establishing a clear breach of trust in the administration of their father's and mother's estates. The defendant failed to secure any formal written agreement between the beneficiaries to vary the statutory trusts, his first act was to distribute to persons who had no claim over the interests of the beneficiaries and he evidences an unwillingness or inability to protect the assets of the estates for the purposes of the beneficiaries. Accordingly, he is liable for the losses to the estates: Halsbury's Laws of England, Vol. 48, para. 935 and will be removed as the administrator of both estates: Letterstedt (1884) 9 App. Cas. 371 followed.
[5] The Limitation Act has no application to a claim to remove an administrator, nor does limitation provide a defence to a claim by a beneficiary against a trustee who has committed fraud or holds trust assets in his possession: Green v Gaul [2006] EWCA 1124, (CA). The defendant fails to prove that he has not received monies for six dispositions from his mother's estate into his possession and is liable to reimburse the estate for the proceeds of sale.
[6] The defences of acquiescence and laches fail. The defendant cannot show any agreement between the parties which he relied on to his detriment, therefore, in the circumstances it is not unconscionable for the claimants to assert their right to recover the value of these assets for the estate: Green v Gaul [2006] EWCA Civ 1124 (CA).
[7] The court cannot order the defendant to reimburse 4/5 of the proceeds of sale to the relevant estate. The proper class of beneficiaries must be determined by the administrators upon application of the rules of succession: Intestates Estates Act, Cap 34, section 4–6. The defendant is liable to reimburse the relevant estate, minus his proper share as a beneficiary.
[8] The claimants do not dispute the intention to subdivide per se, nor do they dispute the receipts or the amounts submitted as sums expended towards the subdivision and excavation of roads on the estate land or that the roads have been cut. Accordingly, these costs were incurred by the defendant in the performance of his duties and the sum of $69,200 is payable as an administration expense of the estate: Williams, Mortimer and Sunnucks Executors, Administrators and Probate 17 th ed., p. 634.
This claim is a familial contest over the administration of two intestate estates. The claimants and the defendant are three of the five surviving children of Abraham Anthony and Clarita Anthony, both deceased. The defendant was duly appointed administrator of the estates of their parents. Subsequently, a dispute arose over his administration. Following a mediation settlement agreement, on 18 November 2009, the claimants were added as joint administrators of the estates with the defendant. The claimants now bring this action, seeking principally that the defendant pay over to them the proceeds of the sale of lands which belonged to the estates of their parents which he [the defendant] disposed of without the consent of any of the beneficiaries when he was the sole administrator and that he [the defendant] be removed as administrator.
Abraham Anthony died intestate on 26 October 1974. His lawful wife, Clarita Anthony and the defendant were appointed administrators of his estate.
The claimants allege that the defendant, while he was sole administrator of their deceased father's estate, sold Parcel 232 of Block 2637B, Sea Cow's Bay Registration Section (‘Parcel 232’) to Felicia Jardine, Kimberly Jardine and Gabrielle Jardine for $45,000 and gave Parcel 234 of Block 2637B, Sea Cow's Bay Registration Section (‘Parcel 234’) to his god-daughter in consideration of natural love and affection.
The defendant admits that Parcel 232 was sold for $45,000 and states
‘….Following several discussions among the parties as well as other siblings it was agreed that a portion of land measuring approximately 1.25 acres would be taken out from the property belonging to the estate of Abraham Anthony and sold. As agreed, the proceeds of the sale would be used to survey and cut roads etc, all in preparation to subdivide and later distribute the real property to the beneficiaries. 1
He then exhibits five receipts for survey, excavation and other works from 5 June 2007 through 21 May 2010 for a total of $69,200. He claims that this sum was expended on the estate in pursuit of the abovementioned plan.
The claimants deny the existence of any agreement for the sale of Parcel 232.
With respect to Parcel 234, gifted to his god-daughter, the defendant says he has already given an undertaking to take 1/4 acre less than that which would have been his share of his father's estate when the land is divided and distributed to the beneficiaries. 2 The claimants say that gifts to other persons do not take priority over the defendant's duty to distribute the estate to the beneficiaries. The claimants ask that Parcel 234 be valued and the defendant, as trustee of the estate, be ordered to return four-fifths of the value to the estate.
Clarita Anthony died on 6 March 1991. The defendant was appointed Administrator with Will Annexed of the estate of his deceased mother. In her will, the deceased devised to her seven children the following real property namely: (a) an undivided 1/4 share in Parcel 36, Block 2836B Road Town Registration Section; (b) an undivided 1/4 share in Parcel 47, Block 2876B Road Town Registration Section; (c) the land at Tom Humphrey, also known as Nibbs Estate, Joe's Hill, Tortola; and (d) ALL THE REST and residue of her estate real and personal…in equal shares’.
The claimants allege that while the defendant was sole administrator of the said estate, he disposed a 1/4 share of the following lands without their consent:
| Block | Parcel | Date of Transfer | Consideration |
| 2836B | 140 | 1991, November 19 th | $16,300 |
| ″ |
To continue reading
Request your trial
-
Estate Administration In The British Virgin Islands: The Relevant Factors For The Removal Of An Administrator Or Executor
...removal of the Personal Representative. footnotes 1 Eileen Papone & Lourie Anthony v James Anthony [Eastern Caribbean Supreme Court] [2011] 7 JBVIC 2801, paragraph 2 BVI Civil Procedure Rule 67.5(2). 3 See generally Section 2 BVI Trustee Act 2020. 4 Wroe v Seed (1863) 66 ER 773. 5 Freeman v......