Cooper (Bertram) as Executor in the Estate Lucille Adela Coleman) v Linford Coleman

• Jurisdiction: Jamaica
• Judge: McDONALD-BISHOP. J (Ag.)
• Judgment Date: 15 June 2007
• Judgment citation (vLex): [2007] 6 JJC 1502
• Court: Supreme Court (Jamaica)
• Date: 15 June 2007

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

Mrs. Hilma McNeil instructed by Hilma McNeil & Co. for the claimant.

Mr. Carlton Williams instructed by Williams, McKoy & Palmer for the defendant.

BETWEEN

BERTRAM COOPER (As Executor in the ESTATE LUCILLE ADELA COLEMAN)

CLAIMANT

AND

LINFORD COLEMAN

DEFENDANT

MATRIMONIAL PROPERTY - Division of property

REAL PROPERTY - Joint tenancy - Severance - Declaration for

McDONALD-BISHOP. J (Ag.)

1 This claim involves the question as to whether a joint tenancy has been severed for the purposes of succession. This action is brought by the claimant as executor in the estate of Lucille Adela Coleman (the deceased) for, inter alia, a declaration that the joint tenancy ownership by the deceased and Linford Coleman (the defendant) in a parcel of land being part of Garden Hill in the parish of St. Catherine was severed during the lifetime of the deceased and that the deceased's estate is entitled to a half interest share in the said land.

2 The defendant, in his defence, avers that any bequest purportedly made by the deceased with respect to this land fails as the principle of jus accrescendi applies and so he is the sole owner of the property.

THE FACTS

3 The deceased and the defendant were husband and wife having been married in England in 1962. In or around 1962, they purchased the plot of land in dispute with the intention to build their matrimonial home for them to occupy when they returned to Jamaica. They returned to Jamaica in or around 1967. In 1967, by Deed of Conveyance, the property in question was conveyed to both parties and the father of the deceased, Raymond Cooper (his name added as a matter of convenience) as joint tenants. Upon the death of Raymond Cooper in 1972, the deceased and the defendant became the undisputed proprietors of the property by virtue of the right of survivorship.

4 The deceased and the defendant lived together on the property until around 1994 when the defendant left the matrimonial home. The deceased, who by this time had become ill, remained in the matrimonial home.

5 On February 15, 2001, the deceased wrote to the defendant, through her attorneys-at-law, Hilma McNeil & Co., indicating her desire to purchase his interest in the property. Given the pivotal role this letter plays in these proceedings, it is necessary that its full terms be disclosed. It reads as follows:

February 15, 2001

BY HAND

Mr. Lynford Hugh Coleman

Browns Hall District

Point Hill P.O.

St. Catherine

Dear Sir,

Re: Division of Matrimonial Property

Our Client- Lucille Adela Coleman

We represent Mrs. Lucille Adela Coleman who has instructed us that she, along with yourself are joint owners of unregistered property at Garden Hill, on which the matrimonial home stands.

Our client has further instructed us that she has been living in the home for years but that you have vacated same and have been living elsewhere. Our client is desirous of buying your one half interest in the property. However, in order that an acceptable purchase price be fixed, it will be necessary to have the property assessed by a reputable valuer. You are therefore asked to agree one of the following valuers.

1) V. B. Williams Realty Co. Ltd Real Estate Dealers & Valuers 7 Tangerine Place Kingston 10

2) Allison Pitter & Co. Chartered Valuation Surveyors 1 Tremmain Road Kingston 6

3) C. D. Alexander & Co. Realty Ltd. 164 Harbour Street Kingston

Please indicate at your earliest convenience which of the above you will agree to provide a Valuation Report, so that we can move forward without delay. You will then be paid one half of the value of the property net of necessary deductions.

Yours faithfully,

HILMA McNEIL & CO.

PER: (sgd):.........................

HILMA McNEIL

6 On March 21, 2001, the defendant replied through his attorneys-at law, Williams, McKoy & Palmer. Again, the terms of the reply are critical to my deliberations and so it is absolutely necessary that the terms of this letter also be disclosed. It reads:

March 21, 2001

Hilma McNeil & Company

Attorneys-at-Law

77 Knutsford Boulevard

Kingston 5

ATTENTION: MRS. HILMA McNEIL

Dear Madam,

Re: Division of Matrimonial Property Our Client- Lucille Adela Coleman

We act for Mr. Lynford Coleman who has instructed us to indicate to you that Allison Pitter & Company is his choice of valuators.

You may proceed to order the valuation report with a view to entering into an agreement for the sale to your client of our client's interest in the premises.

Yours truly,

WILLIAMS, McKOY & PALMER

PER (sgd).................................

CARLTON G. WILLIAMS Attorney-at-Law

7 On June 20, 2001, the deceased's attorneys- at- law wrote to the defendant's attorneys indicating the following:

BY FAX

June 20, 2001

Messrs. Williams McKoy & Palmer

Attorneys-at-Law

1 Eureka Crescent

Kingston 5

ATTENTION: MR. CARLTON WILLIAMS

Dear Sirs:

Re: Divorce- Lucille Adela Coleman vs. Lynford Coleman- Suit No. F/ 2001 C-028

We refer to your letter to us dated March 21, 2001 regarding division of Matrimonial Property between captioned parties. However, the issue of Divorce is to be addressed. We have filed Petition and have in hand the copy for service on the Respondent.

Would you be good enough to get your client's instructions as to whether you can accept service of the copy Petition on his behalf. We would be grateful.

Yours faithfully,

HILMA McNEIL & CO.

PER: (sgd)..........................

For HILMA McNEIL

8 This letter signaled the end of correspondence between and on behalf of the parties. On July 25, 2001 the deceased died. She left a will dated March 9, 2001 in respect of which probate was granted by this Court. By this will, she purports to devise her one- half interest in the property to her three sons.

9 It is contended on the claimant's behalf that the intention expressed by the deceased to purchase the interest of the defendant and the defendant's choice of a valuator towards that end was sufficient to sever the joint tenancy and therefore oust the operation of the right of survivorship in favour of the defendant. Accordingly, it is argued, there was a severance of the joint tenancy during the lifetime of the deceased and so the estate is entitled to half- share interest in the property

10 The defendant, in his defence filed, denies that the letter dated February 15, 2001 by the deceased was an offer by the deceased to purchase his interest in the property. According to his averments, there was no offer to sell; there was no acceptance and no agreement between them. The letters were no more than to seek consensus as to the preference of a valuator for the purpose of having the property valued. He also avers that, in any event, the deceased had brought to an end any further discussions or intention to entertain any transaction as regards the matrimonial home by the letter of her attorneys-at-law dated June 21, 2001 (the last letter). Curiously, although this was pleaded, the defendant gave no evidence of what the dealing was between the deceased and himself or of his intention pertaining to the joint tenancy. The resolution of the case rests purely then on the interpretations to be accorded to the written documents exchanged between the parties and the inferences to be drawn, if any, from their conduct in relation to the common property.

THE ISSUE

11 The ultimate question that falls for determination is whether there was a severance of the joint tenancy with the parties entering into negotiation for the sale of the defendant's share in the property to the deceased.

12 I must confess from the outset that this is a question that does not admit of an easy answer without a thorough examination of the relevant law on the question of severance of a joint tenancy. The authorities on the question, as will be demonstrated, are themselves conflicting and are not readily reconcilable one with the other. This is primarily because, ultimately, the resolution of the question as to whether there is a severance hinges substantially on a finding of fact.

THE LAW

13 It is well established that the essence of joint tenancy is that each joint tenant is wholly entitled to the whole of the estate which is the subject of the co-ownership. In joint tenancy, no joint tenant holds any specific or distinct share himself, but each is, together with the other joint tenant or tenants, vested with the entire interest in the property in question. In the words of Bracton, 'each joint tenant totum tenet et nihil tenet: each holds everything and yet holds nothing." They hold as one single owner as against the whole world. It is, therefore, characterized by the presence of the four unities- unity of time, possession, interest and title.

14 It has, however, been said that the right of survivorship (or jus accrescendi) is the 'grand and distinguishing incident of joint tenancy'. By the right of survivorship, the entitlement of each joint tenant is eliminated on his death. This right takes precedence over any testamentary disposition made by a joint tenant. This is the core of the defendant's contention.

15 The right of survivorship, however, may be destroyed by severance of the joint tenancy during the lifetime of the joint tenants. This would mean a severance of at least one of the essential unities. When this occurs, the joint tenancy becomes a tenancy in common and each party is entitled to a distinct share. With severance, the right to survivorship is totally and irrevocably destroyed and so testamentary dispositions may take effect. This is the core of the claimant's contention.

16 It is no bar to severance that the joint tenants are husband and wife: Bedson v Bedson [1965] 2 Q.B. 666. So, there can be severance in a case of this nature where the...