Louis Lambie and Others v Marve Lambie and Another

• Jurisdiction: Jamaica
• Judge: E. Brown, J
• Judgment Date: 11 April 2014
• Neutral Citation: [2014] JMSC Civ 44
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2007 HCV 01249
• Date: 11 April 2014

[2014] JMSC Civ 44

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2007 HCV 01249

Between

Basil Louis Hugh Lambie (Also known as Louis Lambie)

1st Claimant

and

Hugh Levy (Representative of the Estate of Leroy Lambie, Deceased)

2nd Claimant

and

Sonia Lambie-Davidson (Through her Attorney Basil Louis Hugh Lambie)

3rd Claimant

and

Marva Lambie (Administrator Ad Litem for the Estate of Max Lambie, Deceased)

1st Defendant

and

Lisa Lambie (Administrator Ad Litem for the Estate of Max Lambie, Deceased)

2nd Defendant

Ms. Camille Wignal and Ms K. Michelle Reid instructed by Nunes, Scholefield, DeLeon & Co. for the claimants

Mr. Keith Bishop instructed by Bishop & Partners for the defendants

Administration of estate — Probate — Interpretation of Will — Doctrine of lapse — Exhibition of inventory and accounts — Delay and the duty to account — Revocation of Probate — Chain of representation — Grant de bonis non — Wills Act — Trustee Act — Limitation of Actions Act 5.28

OPEN COURT

E. Brown, J

BACKGROUND

1 The events which form the genesis of this claim are coloured by tragedy. Edith Ethline Lambie, mother of the claimants and the defendant, Max Lambie died tragically in a motor vehicle accident on the 31 ^st October 1964. That tragic passing came in the wake of the passing of her husband, Sydney Augustus Lambie, about two months earlier after a short period of illness. At the time of their deaths the first claimant was a boy of seventeen years, the second claimant and second child for the couple, Leroy Lambie, was already a married man with children and the third claimant and the third child Sonia Lambie-Davidson, was a student at university in Canada. The defendant himself, the primogenital child, was residing in Canada at the time of these events. Indeed, as it was in the beginning so it is in the end as the 2 ^nd claimant and the defendant himself both died before the trial took place.

2 The defendant's primogeniture and the tragedy of their father predeceasing Mrs Edith Lambie coincided to catapult the defendant to the position of head of the siblings and personal representative of the estates of both parents. By her will of the 7 ^th May 1960, Mrs Lambie appointed her husband as her sole executor, with a provision for the defendant to “assume responsibility” in the event that the vicissitudes of life unfolded as they in fact did. Sydney Augustus Lambie was also named as the beneficiary of Mrs Lambie's entire estate and the children as residuary beneficiaries in equal shares. In furtherance of this testamentary appointment, the defendant was granted probate of Mrs Lambie's will on the 24 ^th March 1965.

THE STATEMENTS OF CASE

THE CLAIM

3 By amended Fixed Date Claim Form, the claimants commenced their claim against the defendant on the 2 ^nd April 2007. They sought the following orders:

1

That the defendant be required to furnish and verify accounts in the Estate of Edith Ethline Lambie, deceased. 2. That the defendant do pay over to the claimants, the beneficiaries of the said deceased's estate, any sums found due to the said beneficiaries as per the account and in accordance with the terms of the Last Will and Testament of Edith Ethline Lambie together with interest thereon at a rate of 1% above the commercial bank's prime lending rate. 3. That the defendant be directed to transfer to the claimants title to all properties, both real and personal, comprised in the estate of Edith Ethline Lambie. 4. That the grant of probate to the defendant of the estate of Edith Ethline Lambie on March24, 1965 be revoked. 5. Costs of this action be awarded to the claimants

4 In paragraph 7 of the amended Particulars of Claim, the claimants averred that the defendant as executor was under a fiduciary duty to them as beneficiaries to exercise six functions. First, the defendant was to carry out the instructions of the deceased as specified in her Last Will and Testament. Secondly, the defendant was obliged to take all reasonable steps to ensure that the assets of the deceased's estate are distributed in accordance with the terms of her Last Will and Testament. Thirdly, the defendant was under a duty to act prudently and properly in the management of the estate of the deceased as a whole. Fourthly, the defendant was duty bound to keep proper accounts and to comply with all reasonable requests of the beneficiaries for the details of same. Fifthly, the defendant's fiduciary duty extended to the exercise of reasonable care to ensure that the assets of the deceased's estate are as far as possible preserved for distribution to the beneficiaries, and not wasted. Lastly, as a fiduciary, he was not to deal with or dispose of the assets of the deceased's estate in any way prejudicial or damaging to the beneficiaries' interest.

5 The claimants, in paragraph 8 of the Particulars of Claim, alleged that the testatrix, Mrs Lambie, died possessed of the following assets:

• i. Family house, Edge Hill Road, St. Ann's Bay

• ii. Hardware store, Main Street, St. Ann's Bay

• iii. 35 acre farm, Chesterfield, St. Ann

• iv. 15 acre pasture land, Forrest, St. Ann

• v. Small house, Salem, St. Ann

• vi. Two (2) lots, Bucksfield, St. Ann

• vii. Two (2) lots Salem, St. Ann

• viii. Four acres, Greenside, Trelawny

• ix. 40 acres, Dundee, Salt Marsh, Trelawny, contained in Certificate of Title registered at Volume 969 Folio 304 x. Bank accounts

6 It was the claimants' further averment, at paragraph 9 of the Particulars of Claim, that, except for the four acres at Greenside, Trelawny, the defendant has failed and, or, refused to properly wind up the estate and distribute the assets. Further that, the defendant has imprudently and, or, fraudulently sold and, or, otherwise dealt with and disposed of the assets in a prejudicial manner. Additionally, the defendant has failed and, or, refused to provide them with any, or any proper account.

7 The claimants asserted at paragraph 11 of the Particulars of Claim that the property at Dundee, Salt Marsh, Trelawny, has been up for subdivision and sale for the sole benefit of the defendant. Consequently, the first claimant lodged a caveat against the title in 2005. That notwithstanding, the defendant continued to take steps to dispose of the property in a prejudicial manner and without accounting to the claimants.

8 By virtue of the foregoing, the claimants contended that the defendant has acted improperly, fraudulently and in breach of his duties as executor. The defendant's breach of duty and, or, fraud was particularised as set out below:

• i. Failing to carry out all the instructions of the deceased as set out in her Last Will and Testament;

• ii. Failing to conclude the administration of the deceased's estate in a reasonable time or at all;

• iii. Failing to effect the requisite transfers and dispositions of the assets of the deceased's estate in accordance with her Last Will and Testament;

• iv. Failing to render a true and full account of the properties comprised in the deceased's estate;

• v. Fraudulently and, or, negligently disposing of the assets of the deceased's estate with a view to depleting same and to deprive the claimants of their interests;

• vi. Fraudulently and, or, negligently dealing with and disposing of the assets of the deceased's estate to suit his personal interests solely;

• vii. Mortgaging the assets of the deceased's estate for his personal benefit and without any regard for the interests of the claimants as beneficiaries;

• viii. Offering for sale and, or, selling the assets of the deceased's estate for his personal benefit and without any regard for the claimants' interests as beneficiaries.

9 As a result of the defendant's breach of duty and, or, fraud, the claimants said they have been deprived of the benefits of the assets of the deceased's estate. They pleaded an entitlement to two things. First, they said they are entitled to a full and proper account from the defendant concerning his dealings with the assets. Secondly, it was the claimants' assertion that they are entitled to the due transfer to them of their interests in those assets.

THE DEFENCE

10 Although the defendant admitted paragraph 5 of the amended Particulars of Claim, he denied ever seeing the will of his late father. There the claimants had averred that Mr Sydney Augustus Lambie predeceased Mrs Edith Ethline Lambie on or about the 18 ^th day of August 1964. He further denied ever applying for probate of Sydney Augustus Lambie's estate. To his knowledge and belief, Mrs Lambie was the named executrix of his father's estate and instructed solicitor Douglas Moyston accordingly.

11 The defendant said that he also appointed Douglas Moyston, by power of attorney, to administer the estate of Edith Lambie. He averred that the circumstance which gave rise to that was the fact of his then living abroad. Upon his return to the island in 1975, the defendant said he was advised by Douglas Moyston that he had presented to each of the claimants a copy of the closing statement on the estate in August 1971.

12 Issue was joined with paragraph 7 of the Particulars of Claim. The defendant contended that the probate rules do not require the preservation of the assets of the estate for distribution to the beneficiaries. The advice received from Douglas Moyston was that the Executor is only required to distribute the residual proceeds of the estate after paying off mortgages and liabilities. Further, that the Executor may sell any asset of the estate to settle those liabilities and distribute the remaining proceeds to the beneficiaries.

13 In response to paragraph 7 (i) of the Amended Particulars of Claim the defendant averred that the testatrix made no request for assets to be distributed in ‘realty’ or ‘chattels to the beneficiaries as the will contained no specifics...