Bellamy v Jones and Bellamy
| Jurisdiction | Barbados |
| Judge | Chandler, J. |
| Judgment Date | 16 October 2014 |
| Neutral Citation | BB 2014 HC 39 |
| Court | High Court (Barbados) |
| Docket Number | 188 of 2011 |
| Date | 16 October 2014 |
High Court
Chandler, J.
188 of 2011
Beverley Lady Walrond Q.C., with Ms. Nailah Robinson, Attorneys-at-Law for the plaintiff.
Ms. Sharon Parris, Mrs. Marvalee Franklyn and Ms. Debra Gooding, Attorneys-at-Law for the first and second defendants.
Probate - Whether the plaintiff's claim discloses a cause of action or a reasonable cause of action — Whether the court can rectify the will of the testator to place the address of the devised property — Whether the gift to the second defendant under the will failed due the inaccurate description of the property — Falsa Demonstratio rule.
The plaintiff is the daughter of Caswell Arenas Reece (the Testator) who died in this Island on the 20th June 1996 having made his last will and testament (the will) dated 18th July 1994 in which he appointed the first defendant, his brother-in-law, the sole Executor thereof. She is also the residuary legatee under the will.
The first defendant is the duly qualified and acting executor of the estate of the Testator, a grant of probate to the said estate having been made to him on the 4th day of October 1996.
The second defendant is the grandson of the Testator and one of the beneficiaries under the will. He is the son of the plaintiff.
The plaintiff filed a writ of summons endorsed with a Statement of Claim on the 28th day of November 2008 for, inter alia:
“(1) a declaration that she is entitled to the beneficial ownership and possession of the property situate at Skeete's Road, Bank Hall in the parish of Saint Michael under the Will of Caswell Arenas Reece (the testator) dated the 18th day of July, 1994 and “(i) a declaration that she is entitled to the beneficial ownership and possession of the property situate at Skeete's Road, Bank Hall in the parish of Saint Michael under the Will of Caswell Arenas Reece (the testator) dated the 18th day of July, 1994 and
(2) rescission of the Deed of Assent dated thel5th day of March 2001, made by the first named defendant as executor of the estate of Caswell Arenas Reece, deceased vesting the said property in the second named defendant.”
She also claimed various kinds of injunctive relief which are not the subject matter of this decision.
The second named defendant applied by summons filed the 22nd January 2009 for an order that the plaintiff's writ of summons be struck out as having disclosed no reasonable cause of action and that the cost[s] of and occasioned by this application be bourne [sic] by the plaintiff.
On the 1st December 2011 the first and second defendants filed another application by way of summons for orders in the following terms:
- That the statement of Claim filed herein on the 24th November 2008, on behalf of the plaintiff, be struck out as having not disclosed a cause of action or reasonable cause of action against the defendants. 2. Further and/or alternatively that the defendant be declared in law to be the fee simple owner of the said land being a dwellinghouse with land attached situate at Skeete's Road, Bank Hall in St. Michael (hereinafter called the said dwellinghouse). 3. That the plaintiff and all persons occupying the said dwellinghouse do vacate the same on or before the expiration of three (3) months from the date of the Order. 4. That the second defendant do have damages assessed in respect of the plaintiff's failure/neglect to upkeep and/or maintain the said dwellinghouse. 5. That the plaintiff do pay the second defendant a reasonable sum for her use and occupation of the said dwellinghouse situate at Skeete's Road, Bank Hall in St. Michael. 6. That the plaintiff do pay the second defendant's costs to be agreed and or taxed.
The Testator made the following devises, the first of which is the subject matter of this suit:
“I GIVE and DEVISE my stone dwellinghouse situate at Applegrove, Black Rock in the parish of Saint Michael together with its contents to my grandson Julian Royston Bellamy absolutely.”
“I GIVE and DEVISE my parcel of land situate al Bridge Gap, Goodland in the parish of Saint Michael together with the chattel dwellinghouse standing thereon to my son Charles Arenas Reece of Applegrove, Black Rock, St. Michael absolutely.”.
The will contained a residuary clause in the following terms:
“ALL the rest residue and remainder of my estate real or personal wheresoever and whatsoever I give devise and bequeath to my daughter Andaline Marketta Bellamy of Applegrove, Black Rock, St. Michael absolutely.”
Under and by virtue of a deed of assent executed under hand on the 15th day of March 2001 and recorded in the Land Registry of Barbados on the 23 rd March 2001 the Executor assented to the vesting in the second named defendant of “ALL THAT land (formerly part of a larger area of land containing by admeasurements Twenty-four thousand nine hundred and eight square feet or thereabouts) erroneously stated in the last Will and Testament of the said CASWELL ARENAS REECE, deceased as being situate at Applegrove, Black Rock in the parish of Saint Michael in this Island but in fact situate off Bank Hall Cross Road in the parish of Saint Michael in this Island containing by estimation 295.05 square metres which represents a metric conversion from Three thousand one hundred and seventy-six square feet or thereabouts (inclusive of 33.44 square metres being a metric conversion from three hundred and sixty square feet in the area of a Road formerly a roadway twelve feet wide but now a Public Road) ABUTTING and BOUNDING on lands of Wilbert A Cadogan et ux on lands of one Mrs. Denner on lands now or late of W C Skeete and on lands now or late of B Price and separated therefrom by a Road formerly a roadway twelve feet wide but now a Public Road or however else the same may abut and bound together with the dwellinghouse thereon.” (the property).
The plaintiff filed an affidavit on the 24th November 2008 in support of the injunctive relief in which the plaintiff deposed that she had been residing on the premises with the full knowledge of the first named defendant and had carried out works on the property on the understanding that the property was hers. She also deposed that the first named defendant had, by the deed of assent, purported to vest the property in the second named defendant despite the residuary clause in the will devising the residuary estate (which included the property) to her and despite the fact that the property was not devised to the second named defendant.
In her affidavit filed on the 3rd February 2012 the plaintiff deposed at paragraph 11 that:
“I do not deny that for many years, I thought the house rightfully belonged to the second defendant. Because we had a good relationship, I still thought of it as a family home, but I obtained his permission before making any modifications. These included: replacing the entire roof tiling the entire house, fixing the kitchen sink and completely repainting the house. My sister also made changes. The second defendant always told me that I could do whatever I liked with the house and that he would give it to me. My daughter Gail also assisted in the maintenance.”
The plaintiff resided at the property with the consent of the second defendant for a period of time. During that time the plaintiff and the second defendant got on well. The relationship deteriorated and the second defendant withdrew his consent, serving a notice to quit upon the plaintiff. The plaintiff filed an urgent application by way of writ of summons for injunctive relief. She disputes the second defendant's ownership of the property. Neither affidavit speaks specifically to the nature of the dwellinghouses owned by the Testator.
On the 25th November 2008 the plaintiff obtained an order by consent restraining the second defendant, his servants or agents or otherwise from withholding or doing any act calculated to withhold the water supply and/or the supply of any utility to the residence of the plaintiff at Skeete's Road, Bank Hall in the parish of Saint Michael.
The Court also ordered that the plaintiff's Writ of Summons would be continued as if commenced by way of an Originating Summons.
Affidavits were filed by the first and second defendants and witnesses on behalf of the second defendant which will be considered later in this decision.
The issues that arise for the Court's determination are:
1. Whether or not the plaintiff's claim discloses a cause of action or any reasonable cause of action.
2. Whether the Court can rectify the will of the testator to replace the words “Applegrove, Black Rock” with “Skeete's Road, Bank Hall”.
3. Whether upon the proper construction of the will, the stone dwellinghouse passed to the second defendant despite the inaccurate description or whether it formed part of the residuary estate of the deceased.
Whether or not the plaintiff's claim discloses a cause of action or any reasonable cause of action. The written submissions filed on the plaintiffs behalf on the 28th October, 2013 did not address this issue.
The defendants submitted that the plaintiff ought to have commenced her action by originating summons instead of a writ of summons. Ms. Parris contended that the writ merely presented a prayer for relief and that, since the writ was issued, the plaintiff failed neglected and/or refused to amend the originating process to reflect clearly and properly the cause of action against the defendants. In consequence, the defendants had to garner what they could from the affidavit filed in support by the plaintiff. This was prejudicial to the defendants since it was by way of the originating process that the plaintiff's claim...
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