The Succession Act Cap. 249 of the Laws of Barbados
| Jurisdiction | Barbados |
| Judge | Dr. the Honourable Justice Olson DeC. Alleyne |
| Judgment Date | 19 January 2022 |
| Neutral Citation | BB 2022 HC 1 |
| Docket Number | No. 1128 of 2015 |
| Court | High Court (Barbados) |
Dr. the Honourable Justice Olson DeC. Alleyne, Judge of the High Court
No. 1128 of 2015
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Ms. Trena A. Kellman for the Claimant
The Claimant, Elise Williams (“Ms. Williams”) is the Executrix and, as such, the Personal Representative of the estate of Sylvan Carl Shannon deceased (“the deceased”). By her fixed date claim form (“FDCF”), she seeks the following relief:
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1. An Order granting leave to presume dead George Moss the named beneficiary in the Last Will and Testament of Sylvan Carl Shannon also known as Sylvan Shannon deceased dated the 29 th day of November, 2001 for the purposes of distributing the estate of the deceased.
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2. An Order that the Applicant, Elise Williams also known as Elise Shannon, the Executor of the Will of the deceased shall proceed to distribute the estate of the deceased where applicable amongst the surviving named beneficiaries, namely, Henderson Shannon, Shawn Shannon also known as Sylvester Martin Shawn Shannon, Steve Brathwaite and herself in accordance with the terms of the Will.
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3. Such other orders or relief this Honourable Court deems fit ( sic).
The deceased died in Barbados on 22 July 2009. He left a Will which he executed in the United States of America on 29 November 2001 (“the Will”). The Will was admitted to probate in Barbados on 7 February 2012 and Letters Testamentary were issued to Ms. Williams on 17 February 2012.
Mr. George Moss (“Mr. Moss”) is one of seven beneficiaries named in the Will. The others are Ms. Williams, Steve Brathwaite, Henderson Shannon, Shawn Shannon, Adolphus Shannon and Albertha Brathwaite. All of them are accounted for except Mr. Moss. Albertha died on 5 March 2005 and Adolphus on 21 January 2010.
Ms. Williams asserts that Mr. Moss cannot be found. She and the other surviving beneficiaries desire that the estate be distributed without further delay. That is the background against which she has made her application to this Court.
Excepting clauses 8 and 11 which are not material for present purposes, the substantive provisions of the Will are in these terms:
I, SYLVAN SHANNON, residing at 15 Clearview Heights Stage 3, Clermont, St. Michael, Barbados, West Indies, which I declare to be my domicile, do make, publish and declare this to be my Last Will and Testament.
FIRST: I revoke all wills and codicils heretofore made by me.
SECOND: I direct my executor to pay the expenses of my funeral and the administration of my estate as soon after my demise as may be practicable.
THIRD: I give and devise any and all interest I may have in the real property located at 4318 Flatlands Avenue, Brooklyn, New York, to ELISE WILLIAMS also known as ELISE SHANNON, per stirpes.
FOURTH: I give and devise any and all interest I may have in the real property located at 15 Clearview Heights Stage 3, Clermont, St. Michael, Barbados, West Indies to STEVE BRATHWATTE and GEORGE MOSS, in two equal shares or all to the survivor of them. In the event both STEVE BRATHWATTE and GEORGE MOSS predecease me, then I direct that this gift shall lapse.
FIFTH: I give and devise any and all interest I may have in the real property located in St. Barnabas Heights, St. Michael, Barbados, West Indies, to HENDERSON SHANNON and SHAWN SHANNON, in two equal shares or all to the survivor of them. In the event both HENDERSON SHANNON and SHAWN SHANNON predecease me, then I direct that this gift shall lapse.
SIXTH: I give and devise any and all interest I may have in the real property located at No. 5 Two Mile Hill Housing Area, St. Michael, Barbados, West Indies, to ADOLPHUS SHANNON, SHAWN SHANNON, STEVE BRATHWAITE, HENDERSON SHANNON and ALBERTHA BRATHWAITHE, five equal shares, ( sic) or all to the survivors of them.
SEVENTH: I give, devise and bequeath all the rest, residue and remainder of my estate to ELISE WILLIAMS, STEVE BRATHWAITE, GEORGE MOSS, HENDERSON SHANNON, SHAWN SHANNON, ADOLPHUS SHANNON and ALBERTHA BRATHWAITE, in seven equal shares or all to the survivors of them.
EIGHTH: ….
NINTH: I appoint ELISE WILLIAMS … to be executor of this will….
TENTH: I give said executor the fullest power and authority in all matters and questions and to do all acts which I might or could do if living, including, without limitation, complete power and authority to sell, mortgage, lease and dispose of, and distribute in kind all property, real and personal, at such times and upon such terms and conditions as they may determine all without court order. I give my executor the power to make capital gains election as to any stepped-up basis on property that may pass through my estate, whether through this Will or otherwise.
ELEVENTH:….
The issues raised on Ms. Williams' application and the related submissions are (i) whether there is a legal presumption that Mr. Moss is dead; (ii) whether the Court should infer that Mr. Moss is dead; (iii) whether the Court should grant the applicant leave to distribute the deceased's estate on the footing that Mr. Moss is dead and that he died before the deceased; and (iv) whether Ms. Williams can proceed to distribute the estate among the surviving beneficiaries Henderson Shannon, Shawn Shannon, Steve Brathwaite and herself in accordance with the terms of the Will.
Ms. Williams and the other surviving beneficiaries swore affidavits in support of the application. I have no reason to doubt the veracity of their evidence. Ms. Williams deposed as to the familial relationships between them and the deceased. She is his niece. Henderson Shannon is his brother, and Steve Brathwaite and Shawn Shannon are his nephews. She stated that they are his closest surviving relatives.
Steve Brathwaite, Shawn Shannon and Henderson Shannon each deposed that they have no knowledge of Mr. Moss or his whereabouts. Ms. Williams deposed to her lack of knowledge of or about Mr. Moss and the futile efforts she made to find him. She deposed that she found no family members that knows of him and that the deceased's closest friends are dead and, therefore, unable to assist her.
In response to a query from Ms. Williams' Counsel Ms. Trena Kellman, the law firm that prepared the Will indicated that the only address they have on file for Mr. Moss is 15 Clearview Heights, Stage 3, Clermont, St. Michael. That is the deceased's address as shown on the Will and the property devised to Steve Brathwaite and Mr. Moss by clause 4 (“the Clermont property”).
However, Ms. Williams is unaware that Mr. Moss ever lived at that address. As far as she knows, the deceased lived there alone. However, she resided in the USA prior to his death. She has occupied the Clermont property subsequent to that event and her neighbourhood inquiries led to no information about Mr. Moss.
Ms. Williams' efforts to find Mr. Moss or persons who would likely know of him included the publication of notices in Barbados, the Bahamas, New York, and Florida, places where, to her knowledge, the deceased lived or was known to frequent. She caused two types of notices to be advertised.
In March 2012, notices were published in Barbados pursuant to section 31 of the Trustee Act Cap. 250 inviting claims against, or expressions of interest in, the deceased's estate by 6 May 2012. Other advertisements which were intended to call on Mr. Moss to contact Ms. Kellman were placed in newspapers in Barbados in 2012 and in the Bahamas, New York, and Florida in 2015.
Erroneously, Mr. Moss' surname was stated as “Morris” in the latter set of advertisements, though his forename was correctly stated and the deceased's estate clearly identified. Ms. Kellman deposed that corrected advertisements were placed in Barbados and the Bahamas in 2016, the places which ranked highest on Ms. Williams' list of considerations. I saw those advertisements along with the earlier ones and the section 31 notices.
Section 31 of the Trustee Act reads:
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31. (1) With a view to the conveyance to, or distribution among, the persons entitled to any real or personal property, the trustees of a settlement or of a disposition on trust for sale or personal representative may give notice by publishing advertisements once in the Official Gazette and twice in each of the local newspapers, and by publishing such other like notices, including notices outside Barbados, as the court may direct in any special case, of their intention to make conveyance or distribution as aforesaid, and requiring any person interested to send to the trustees or personal representatives within not less than 2 months of the publication of the last of the notices, particulars of his claim in respect of the property or any part thereof to which the notice relates.
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(2) At the expiration of such time as aforesaid the trustees or personal representatives may convey or distribute the properly or any part thereof to which the notice relates to or among the persons entitled thereto, having regard only to the claims, whether formal or not, of which the trustees or personal representatives then had notice, and shall not, as respects the property so conveyed or distributed, be liable to any person of whose claim the trustees or personal representatives have not had notice at the time of the conveyance or distribution; but nothing in this section
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(a) prejudices the right of any person to follow the property, or any property representing the same, into the hands of any person, other than...
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