Campbell (Harold) (Executor estate John McTernan deceased v Claudette Robinson, Dereck McTernan, Joan McTernan, Jacqueline McTernan, Mayo McTernan and Alvin Ranglin (Executor of the estate John Elisha McTernan

• Jurisdiction: Jamaica
• Judge: HARRISON J
• Judgment Date: 18 May 2000
• Judgment citation (vLex): [2000] 5 JJC 1801
• Date: 18 May 2000
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN PROBATE

IN THE MATTER of the Construction of the Will of JOHN ELISHA MCTERNAN deceased

AND

IN THE MATTER of Section 532 (G) of the Judicature (Civil Procedure Code) Law

BETWEEN

HAROLD CAMPBELL (Executor Estate John McTernan deceased)

PLAINTIFF

AND

CLAUDETTE ROBINSON

1 ^ST DEFENDANT

AND

DERECK MCTERNAN

2 ^ND DEFENDANT

AND

DONALD MCTERNAN

3 ^RD DEFENDANT

AND

JOAN MCTERNAN

4 ^TH DEFENDANT

AND

JACQUELINE MCTERNAN

5 ^TH DEFENDANT

AND

MAYO MCTERNAN

6 ^TH DEFENDANT

AND

ALVIN RANGLIN (Executor of the Estate John Elisha McTernan)

7 ^TH DEFENDANT

^{st th th}

^{nd rd th th}

WILLS - Probate contested - Determination of true construction of will - Distribution of estate - Whether beneficiary a life tenant

1 IN CHAMBERS

HARRISON J

2 The Application

3 By his last will and testament, the deceased, John Elisha McTernan made the following devise:

"I direct that Claudette Robinson shall have the right to reside rent free for the rest of her life in my premises at 14 Ritchie Avenue aforesaid on the understanding that she pays all outgoings on the premises. Should she wish to remove and rent the premises she must obtain the consent of my four children Derek McTernan, Donald McTernan, Joan McTernan and Jacqueline McTernan and should my said four children wish whenever they happen to visit Jamaica be permitted to stay at the premises without charge. SUBJECT to the above direction I GIVE DEVISE AND BEQUEATH all my estate of whatsoever nature whether real or personal as to fifteen percent thereof to my daughter MAYO OPAL MCTERNAN and as to the remaining eighty-five percent to be divided equally among my four children Derek McTernan, Donald McTernan, Joan McTernan and Jacqueline McTernan."

4 The plaintiff, who is one of the Executors of the will, is uncertain as to the interest created in favour of Claudette Robinson and how the estate is to be distributed so, he seeks firstly, a determination of the true construction of the will and in particular whether:

• (a) Clause 4 of the will devises to Claudette Robinson a life interest in respect of 14 Ritchie Avenue, Kingston 8, St. Andrew.

• (b) If no life interest has been created what is the nature of the bequest to the said Claudette Robinson.

• (c) Upon the sale by the executor of the said land what interest if any would the said Claudette Robinson have in the net proceeds of sale.

5 He also seeks:

• 2. An Order that the Executors to be directed to recover from Claudette Robinson the duplicate Certificate of Title registered at Volume 1025 Folio 487 of the Register Book of Titles and deliver same to Messrs Nunes Scholefield Deleon and Co., Attorneys at Law.

• 3. An Order that the premises known as number 14 Ritchie Avenue, Kingston 8 in the Parish of Saint Andrew be sold by Public Auction or Private Treaty and that the Registrar of the Supreme Court be empowered to sign any Agreement for Sale, Instrument of Transfer or other such documents as are required to give effect to this Order should any of the Executors refuse so to do.

• 4. An Order that all monies advanced to the estate by the abovementioned Harold Campbell be repaid to him with interest at the rate of twenty-two percent (22%) per annum.

• 5. An order that the remaining proceeds of sale be divided among the beneficiaries of the estate in accordance with the terms of the said will as well as the directions of this Honourable Court deems just.

• 6. An order that the payment of the costs of this application be made from the estate.

6 ..."

7 Summary of the Affidavit Evidence

8 Probate of the will was granted to the plaintiff on the 18 ^th day of April 1997, with power reserved for the other named Executor, Alvin Ranglin, to come in and apply for a similar grant. The co-executor did apply for and secured grant of a double Probate on the 18 ^th day of January, 1999. The records disclose that the Originating Summons seeking the abovementioned orders, was filed on the same date that Ranglin obtained the double grant of Probate. This is the reason therefore, why the application has been made by the plaintiff alone.

9 The Ritchie Avenue property is the only asset in the deceased's estate and the plaintiff deposes that the estate has no cash to defray testamentary expenses. Some of the expenses have been met by one of the beneficiaries, Jacqueline McTernan and himself and he has had to borrow monies in order to meet them. Interest is payable on the sums loaned.

10 On the 16 ^th day of July, 1998 the plaintiff filed a plaint in the Resident Magistrate's Court for the Corporate Area, in order to recover the duplicate certificate of title for the premises 14 Ritchie Avenue, from Claudette Robinson. However, as a result of the grant of double Probate, the plaint against Claudette Robinson was adjourned sine die. He also deposed that as a result of the instructions from his co-executor to Robinson regarding the delivery up of the title to him, he felt obliged to apply to the Court for guidance regarding administration of the estate. The court was informed by Counsel for the defendants that the title was now in the possession of Ranglin.

11 The plaintiff said he had kept Claudette Robinson informed all along that he would make this application to the Court and although he had spoken to her about it, he had not sought the permission and consent of Robinson and the other beneficiaries to commence the proceedings.

12 Alvin Ranglin deposed inter alia, that he was advised by his Attorney at Law, on a number of issues which included the executors' commission, the value of the estate, and the proposed claim against the estate for Attorneys fees to be paid for the preparation of an Assent to devise and register the beneficiaries. He was further advised by his Attorney at Law that the proposed work was wholly unnecessary and that there was "great hurry to pile up costs" against the estate. He felt that having regards to the foregoing matters, it was prudent for him to be joined as a defendant in order to protect the estate and the deceased's...