Paulette Maduro v Elliot Walwyn Brewley

• Jurisdiction: British Virgin Islands
• Judge: Ellis J.
• Judgment Date: 07 June 2018
• Neutral Citation: VG 2018 HC 4
• Court: High Court (British Virgin Islands)
• Docket Number: Claim No. BVIHCV 2016/0147
• Date: 07 June 2018

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Ellis, J.

Claim No. BVIHCV 2016/0147

Between:

Paulette Maduro

Claimant

and

Elliot Walwyn Brewley Purported Executor under the Will of Gene Schubert Maduro [Deceased]

Defendant

Appearances:

Ms. Elizabeth Ryan and Ms. Ruth-Ann Richards, for the Claimant

Ms. Pauline Mullings, for the Respondent

Trusts - Constructive trust — Common intention — Whether express common intention that claimant would have proprietary interest in matrimonial home — Whether claimant successfully established she acted to her detriment in reliance on common intention — Claim dismissed.

Ellis J.

1 This Claim concerns the estate of Gene Schubert Maduro who passed away on 1 ^st April 2015 (Mr. Maduro). There followed contentious probate proceedings which commenced with BVIHCP No. 48 of 2015, in which the Defendant in these proceedings applied for a grant of probate in Mr. Maduro's estate. The Claimant lodged a caveat and following the issuance of a warning, the Defendant filed a Fixed Date Claim Form BVIHCV No. 33 of 2016, seeking a grant of probate in Mr. Maduro's estate.

2 The Claimant applied for a stay of these proceedings, alleging that she holds a legal or equitable interest in Mr. Maduro's estate and that her interest in the estate should properly be separated from the Estate before the grant of probate can be issued.

3 After protracted legal proceedings, the Application for a stay was dismissed and the Fixed Date Claim Form was withdrawn and discontinued. The Court directed that the Defendant be allowed to make the necessary application for the Estate to be admitted to probate, thus enabling the Defendant to take up representation in the Estate.

4 By a further Fixed Date Claim Form filed in 2016, the Claimant now seeks the following relief:

• i. A declaration that she has an interest in the matrimonial home.

• ii. A declaration that Mr. Maduro held the matrimonial home on a constructive trust for himself and the Claimant. iii. A declaration that the Claimant has in interest in the Mr. Maduro's estate.

• iv. A declaration that Mr. Maduro's estate is held in trust for the Claimant.

• v. An order that the Claimant's interest in Mr. Maduro's estate be determined and valued.

• vi. Costs.

5 The factual grounding of this Claim is heavily contested. However, it is not disputed that on 21 ^st November, 1979, the Claimant and Mr. Maduro were lawfully married. The Claimant petitioned for divorce on 18 ^th August, 2014. She later discontinued her Petition in November, 2014. However, Mr. Maduro initiated divorce proceedings in October, 2014 on the ground that the Parties had lived separate and apart for a period of 5 years. Both the Claimant's petition and Mr. Maduro's petition alleged that the Parties had lived separate and apart since 1984. This Petition was uncontested and on 19 ^th February, 2015, the Court pronounced decree nisi.

6 Sadly, on 1 ^st April, 2015, prior to the grant of the decree absolute and the resolution of ancillary relief proceedings and the division of the matrimonial assets, Mr. Maduro passed away. The Claimant contends that at his death, his Estate comprised of 9 parcels of land in the Territory, bank accounts, vehicles, yachts, boats, fixtures and furnishings and china. 1

7 Save for these agreed matters, the Parties maintain very different views of the relevant factual background. These very divergent positions inform the issues which arise in this case and are summarized below.

THE CLAIMANT'S CASE

8 At the time the couple began their union in 1979, Mr. Maduro worked as a civil servant and also engaged in construction work on a part-time basis. In the early years and due to Mr. Maduro's express wishes, the Claimant was confined to performing the duties of a house wife. She asserts that she provided moral and other support in the construction business as well as in the management and maintenance of the assets of the said business.

9 The Claimant contends that at the time of their marriage, the matrimonial home consisted of land and a building which housed a 2 bedroom, 1 bathroom apartment. They continued to live in the home which was gradually developed and extended such that it now houses various apartments.

10 The Claimant asserts that the assets acquired during the marriage were used for their mutual benefit and that at all times, Mr. Maduro promised to make her happy and to “give her everything”. 2 As a result of this expressed intention, the Claimant abided by Mr. Maduro's wishes when he stymied all her attempts to improve herself and to earn her own living. As a result, she accepted the role of house-wife and support for her husband and she relied on his word that she would be part owner of all they acquired.

11 The Claimant asserts that they both worked together for the betterment of the marriage and, by reason of their collaboration, their business flourished, the matrimonial property was further developed and they enjoyed a life of luxury marked by frequent travel and luxury items.

12 The Claimant asserts that there came a point in the marriage when they chose to enjoy an open marriage. With the full knowledge of the Claimant, Mr. Maduro enjoyed the company and favors of

various mistresses. The Claimant contends that at all times, she was introduced to his mistresses and was aware of their status. Mr. Maduro always introduced the Claimant to them as his wife and, compelled them to acknowledge their subordination her as his wife. She asserts that although Mr. Maduro enjoyed the sexual favors of his mistresses, he continued to treat her as his wife, periods of frostiness notwithstanding. In fact, the Claimant maintains that until August 2014, Mr. Maduro continued to enjoying the benefits of married life to the Claimant but because of his unpredictability, she chose to work to support herself. 3

13 Mr. Maduro set the tone for the contributions that he desired from her from the very beginning of their relationship. She was always relegated to the position of home-maker and supporter of her husband as he preferred to be the sole bread-winner and so their fortunes were tied together. The Claimant states that they continued to mutually enjoy the assets of the marriage and to collaborate concerning same.

14 The Claimant submits that the Court has jurisdiction to grant the orders sought pursuant to its statutory and/or inherent jurisdiction and the jurisdiction conferred upon it by the Rules. The Claimant contends that all of the ingredients for constructive trust have been established and she invites the Court to declare her interest in the matrimonial assets as ranging between 25% and 50%.

15 Counsel for the Claimant pointed to the Claimant's evidence that at the very beginning of their union, Mr. Maduro made it plain that he would “give her the world and do everything to make her happy.” She also maintained that Mr. Maduro told her that he was working for both of them, and that what he had was hers. She alleged that some of these representations were made at the very beginning of the union, during and prior to the intervention of third parties in marriage.

16 Counsel urged the Court to accept the Claimant's evidence that Mr. Maduro made certain promises to her concerning his property. She pointed out that notwithstanding his proclivities; there is

evidence that the couple enjoyed their properties together consistent with Mr. Maduro's express oral declarations

17 Counsel concluded that the manner in which Mr. Maduro conducted himself throughout the marriage is consistent with an intention to share the interest in the matrimonial assets with the Claimant. Counsel for the Claimant adopted the formulation cited in the case of Abbott v Abbott [2007] 2 ALL ER 432 and submitted that “ independently of any interference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there was [at any time] prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially.”

18 Counsel submitted that the fact that the Parties both took lovers and had children outside of the marriage is of no consequence since Mr. Maduro maintained his ties to the Claimant, irrespective of his mistresses. Notwithstanding the volatility of the relationship, he ensured that the Claimant was abreast of all acquisitions during the marriage and enjoyed the fruits of their marriage with him. She submitted that such conduct is consistent with the intention he expressed at the very beginning of relationship that “he would give her everything and make her happy.”

19 Counsel further argued that even if the Defendant wished to posit that the Claimant was no wife to Mr. Maduro after the first 5 years of their union, he has at least conceded that they had a 5 year union which further buttresses the general submissions of the Claimant. The Claimant concedes that the degree and nature of the support required by her husband would have evolved over time but what remains certain, is that she remained faithful to the role relegated to her.

20 The Claimant submits that her claim is not defeated by reason of the fact that she enjoyed a life of luxury with her husband initially and, at various points, throughout the marriage or by the fact that she was not living under the matrimonial roof at all times. She argued that she contributed to the development of the matrimonial property, which was a major income earner for Mr. Maduro. In legal submissions filed on 2 ^nd March 2017, Counsel argued that on this basis and applying the ratio in the case of Paul Webster v Lois Dunbar AXAHCV No. 62 of 2009, the Court can safely find that the Claimant's interest in the matrimonial assets to be no less than 25% but no greater than 50%. In her closing arguments...