Ann Marie Llewellyn Young v Louise Hilda Llewellyn

• Jurisdiction: Jamaica
• Judge: Anderson K., J.
• Judgment Date: 05 July 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2017 HCV 01302
• Date: 05 July 2019

[2019] JMSC Civ 129

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2017 HCV 01302

Between

Ann Marie Llewellyn Young

1 ^st Claimant

and

Louise Hilda Llewellyn (also known as Michelle)

2 ^nd Claimant

and

Louise Hilda Llewellyn (Executrix of the Estate of Messiah Llewellyn)

1 ^st Defendant

and

Loreen Llewellyn

2 ^nd Defendant

and

Avril Reindollar

3 ^rd Defendant

Jean M. Williams, instructed by DunnCox, for the claimants

Yolande Magnus-Mullings, instructed by Abendana and Abendana, for the defendants

Will — Construction — Testamentary Intention — Rectification of Wills — Court is Requested to Interpret and Make Orders Regarding Unclear or Inconsistent Provisions Under a Will — Whether Inventory and Account Regarding Management of Estate Should be Provided by Defendants — Effect of Power of Attorney — Delay — Laches

IN CHAMBERS

Anderson K., J.

BACKGROUND

1 Messiah Llewellyn (hereinafter referred to as ‘the deceased’), and the 1 ^st defendant, Louise Hilda Llewellyn were married on March 29, 1967. They had six (6) children of the marital union, which included the claimants, Ann Marie Llewellyn Young and Louise Hilda Llewellyn (also known as Michelle), the 2 ^nd and 3 ^rd defendants, Loreen Llewellyn and Avril Reindollar as well as Junior Messiah Llewellyn and Valerie Parline Llewellyn.

2 The deceased executed a valid last will and testament on May 14, 1976. When that will was executed, all of the children were under the age of eighteen years, save and except for one child. The deceased died testate on June 8, 1985.

3 The 1 ^st defendant, the widow of the deceased was the appointed executrix of the estate of the deceased. The 1 ^st defendant had obtained a grant of probate on October 3, 1986 from the Supreme Court of Judicature of Jamaica.

4 The deceased's only son, Junior Messiah Llewellyn died intestate on May 4, 1986. He had no spouse and/or children. Junior Messiah Llewellyn died prior to the issuance of the grant of probate of the deceased's estate. One of the deceased's daughters, Valerie Parline Llewellyn also died intestate on June 1, 2001 without leaving a spouse, but she had two (2) children, Kyle and Daniel Smith.

5 The claimants, both of 81 Marine Gardens, Ocho Rios in the parish of Saint Ann, brought a claim against the defendants, under the provisions of the Interpretation Act and Wills Act, on the basis that under the terms of the deceased's will, the property with address at 80 Main Street, Ocho Rios, in the parish of Saint Ann (hereinafter referred to, as, ‘the disputed property’), was gifted to the 1 ^st defendant and all of his six (6) children. Since the death of the deceased, the claimants have not received any benefit from said estate. The 2 ^nd Defendant and 3rd Defendant are being sued in their capacity of attorneys, having assumed power of attorney on January 28, 2013.

6 Under the terms of the deceased's will, a provision was made, which is as follows:

‘I give and bequeath To my wife, Louise Hilda Llewellyn of St. Ann's Bay, 4 Park Ave, All my Estates, In St. Ann's Bay Ocho Rios, and Priory, 80 main Street Ocho Rios, Cash in Bank, Furniture 46 Main Street St. Ann's Bay, 25 Musgrave Street, St. Ann's Bay, 14 Musgrave Street, St. Ann's Bay, 4 Park Ave St. Ann's Bay, Main Street Priory, All for her own use, and her Six children Ann Marie Llewellyn, Valerie Parline Llewellyn, Loreen Llewellyn, Junior Messiah Llewellyn, Louise Hilda Llewellyn and Avril Maude Llewellyn, 80 Main Street Ocho Rios to go to Junior Messiah Llewellyn.’

7 All the real properties devised under the clause for interpretation were jointly held by the deceased and the 1 ^st defendant as joint tenants, save and except for the disputed property.

THE FIXED DATE CLAIM FORM AND AFFIDAVITS FILED

8 The claimants filed a fixed date claim form on April 19, 2017 and an amended fixed

date claim form on October 22, 2018 and supporting affidavits on the basis that, since the death of the deceased, the claimants have not received any benefit from the disputed property. Given the written terms of the deceased's will, this court is requested to interpret and make orders regarding the relevant provision under said will, which touches and concerns the disputed property.

9 The claimants sought the following orders:

• 1. ‘A Declaration that pursuant to the last will and testament of Messiah Llewellyn, deceased, the Claimants hold an interest in situated at 80 Main Street, Ocho Rios and is described as all that parcel of land part of Little Buckfield known as Rocky Ridge, Ocho Rios in the parish of Saint Ann containing by survey Two Roods Fifteen Perches and five-tenths of a Perch of the shape and dimensions and butting as appears by the Plan thereof hereto annexed and being the land contained in Certificates of Title registered at Volume 1084 Folio 669;

• 2. An Order that said defendants Louise Hilda Llewellyn, Loreen Llewellyn and Avril Reindollar provide a detailed account of the income derived from the estate of Messiah Llewellyn to the beneficiaries of the estate of Messiah Llewellyn;

• 3. That the Registrar of the Supreme Court be empowered to sign any and all documents to make effective any and all orders;

• 4. Liberty to apply;

• 5. Costs;

• 6. Further and other relief as the Court may deem fit.’

10 Ann Marie Llewellyn Young filed an Affidavit on April 19, 2017. Exhibited to that affidavit were:

• i. Copies of the last will and testament of the deceased and probate of said will;

• ii. Copy of the Certificate of Title registered at Volume 1084 Folio 669 regarding the property known as 80 Main Street, Ocho Rios, described as all that parcel of land part of Little Buckfield known as Rocky Ridge, Ocho Rios in the parish of Saint Ann containing by survey Two Roods Fifteen Perches and five-tenths of a Perch of the shape and dimensions and butting as appears by the Plan;

• iii. Copies of the Certificate of Title registered at Volume 528 Folio 14 regarding the property known as 4 Musgrave Street, St. Ann's Bay;

• iv. Letter dated September 11, 2012 from Murray & Tucker Attorneys-at-law & Notary Public, exhibited as ALY-4.

11 In said affidavit, Ann Marie Llewellyn Young, averred that she is unemployed and that since the death of the deceased, she has not received any benefit from the estate of the deceased. As a result, she had instructed counsel to write to the 1 ^st defendant requesting an account in relation to the estate of the deceased and no response was forthcoming.

12 Ann Marie Llewellyn Young also alleged that the disputed property is on a long term lease to Singer Sewing Machine Company and is endorsed on the Certificate of Title as Lease No. 732806. There are also eight other businesses on the said property.

13 She contended that the deceased had made adequate provisions for the 1 ^st defendant, his wife, when he purchased the property situated at 1 Newly Street, Ocho Rios in the parish of Saint Ann, which is a commercial property, containing an upstairs and downstairs and which houses eight shops on the upstairs and a meat shop on the entire downstairs.

14 A further affidavit of Ann Marie Llewellyn Young was filed on April 9, 2018, which provided the date of birth of all the children born to the deceased and the 1 ^st defendant. It also referred to a ‘half-blood sister’, by the name of Albertha Laucher, who is a daughter of the deceased, from a prior marriage.

15 On October 22, 2018 a further, further affidavit was filed by Ann Marie Llewellyn Young. Exhibited to that affidavit was:

i. A copy of a power of attorney granted by the 1 ^st Defendant to the 2 ^nd and 3 ^rd Defendant on January 28, 2013.

16 By virtue of the foregoing, the 1 ^st claimant contended, that subsequent to the filing of the fixed date claim form, it came to her attention that the 1 ^st defendant had granted a power of attorney to the 2 ^nd and 3 ^rd defendants. As a result, the 2 ^nd and 3 ^rd defendants have intervened in the estate of the deceased and are obliged to provide an account of their stewardship.

17 The 1 ^st defendant, also known as Michelle, filed an affidavit on April 19, 2017. In said affidavit she averred that, she is a safety officer and that since the death of the deceased, she has not received any benefit from the estate of the deceased. As a result, she also instructed counsel to write to the executrix requesting an account in relation to the estate of the deceased and no response was forthcoming.

18 She also surmised that the disputed property is on a long term lease to Singer Sewing Machine Company and is endorsed on the Certificate of Title as Lease No. 732806. There are also eight other businesses on the said property. It was also alleged by her, that the deceased had made adequate provisions for the 1 ^st defendant when he purchased the property situated at 1 Newly Street, Ocho Rios in the parish of Saint Ann.

19 The 1 ^st defendant also deponed that, she had expended approximately two million dollars ($2,000,000.00) on the property at 1 Newlyn Street, Ocho Rios in the parish of Saint Ann, to renovate same, as it was then, in a poor state of repair.

20 She further deponed, that she occupied a shop on the ground floor, in which she operated a meat shop and consequently the business failed, due to the actions of the 1 ^st defendant.

21 In response to the claimants' affidavit evidence, a response of the 1 ^st defendant, who is the executrix of the estate of Messiah Llewellyn, was filed on October 18, 2017. Exhibited to that affidavit were:

• i. A copy of certificate of title for the property at 25 Musgrave Street, Saint Ann's Bay, registered at Volume 1291 Folio 314 of the Register Book of Titles. This depicted that the premises was newly registered in the 1 ^st claimant and her children's names.

• ii. Copy of a letter dated February 25, 2005, to the 2 ^nd claimant from Michelle Movery, a copy of the Moverys' deposit receipt and copies of some of...