Marjorie Morrison v Marjorie Morrison (Legal Guardian of James Morrison)

• Jurisdiction: Jamaica
• Judge: Rattray, J.
• Judgment Date: 28 May 2021
• Neutral Citation: [2021] JMSC Civ 95
• Docket Number: CLAIM NO. 2016HCV02499
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2016HCV02499

In the Matter of the Estate of Harold Eustace Melville Morrison, Deceased

and

In the Matter of Sections 4 and 6 of the Inheritance (Provision for Family and Dependants) Act

Between

Marjorie Morrison

1 ^st Claimant

and

Marjorie Morrison (Legal Guardian of James Morrison)

2 ^nd Claimant

and

Sjaun Morrison (Mother And Next Friend of Zoe Morrison)

3 ^rd Claimant

and

Sjaun Morrison (Mother And Next Friend of Zara Morrison)

4 ^TH Claimant

and

Lourice Morrison (Executor of the Estate of Harold Eustace Melville Morrison, Deceased)

Defendant

IN CHAMBERS

Mr. Maurice Manning Q.C., Ms. Sherry Ann McGregor and Ms. Camille Wignall instructed by Messrs. Nunes, Scholefield, Deleon & Co. for the Claimants

Ms. Amanda Montaque, Mr. Litrow Hickson and Mr. James-Earle Kirkland instructed by Myers, Fletcher & Gordon for the Defendant

Sections 4, 5, 6 and 7 of The Inheritance (Provision for Family and Dependants) Act — Whether grandchildren are applicants under the Act — the factors which the Court must consider in exercising its jurisdiction.

Cor: Rattray, J.

Introduction

1 The Claimants seek the following orders:

• 1. A Declaration that the 1st Claimant, the former wife of the deceased, Harold Eustace Melville Morrison, is entitled to receive reasonable financial provision from the deceased's estate.

• 2. A Declaration that James Morrison, the child of the deceased, Harold Eustace Melville Morrison, is entitled to receive financial provision from the deceased's estate.

• 3. A Declaration that Zoe and Zara Morrison, the children of James Morrison, and grandchildren of the deceased, are entitled to receive financial provision from the deceased's estate.

• 4. An Order that the Defendant make such lump sum payment or other provision form the deceased's net estate to the 1st Claimant in her capacity as the former wife of the deceased as this Honourable Court deems just.

• 5. An Order that the Defendant make such lump sum payment or other provision from the deceased's net estate to the 2nd Claimant in her capacity as the Legal Guardian of James Morrison as this Honourable Court deems just.

• 6. An Order that the Defendant make such lump sum payment or other provision from the deceased's net estate to the 3rd and 4th Claimant, Sjaun Morrison, in her capacity as the Mother and Next Friend of Zoe and Zara Morrison as this Honourable Court deems just.

• 7. Costs of this action be paid out of the estate of Harold Eustace Melville Morrison, deceased.

• 8. Such further and/or other relief as this Honourable Court deems just.

Background

2 Harold Morrison ( the testator) died on the 4 ^th of March 2016. He was survived by his children and his spouse Lourice Morrison ( the Defendant). The testator left a will in which he devised two personal assets to his son James Morrison and the remainder of his estate to the Defendant. The Defendant is also the sole executor of the will. His former wife Marjorie Morrison has brought this action against the testator's estate on behalf of herself and her son James. Sjaun Morrison is the mother of James's two children Zoe and Zara Morrison, and acts as next friend on their behalf. They are all seeking an order from the court under the Inheritance (Provision for Family and Dependants) Act ( The Act). The essence of their claim is that the testator failed to make reasonable provision for them in his will and as a consequence of that failure, they are entitled to a share of his estate.

3 Prior to his death the testator was a successful Architect and a partner in the firm Harold Morrison and Robert Woodstock and Associates Limited. In response to this claim the Defendant averred that the estate consisted only of the testator's 51% shares in the said firm. The shares were sold by her, subsequent to the filing of the suit, and she received the sum of Thirty Million Dollars. It is her contention that the Claimants are not entitled to any part of the estate.

Issues

4 There are three main issues for determination.

• a) Are the Claimants “applicants” under the Act?

• b) Did the testator make reasonable provision for the Claimants in his will?

• c) Whether the court should exercise its discretion under the Act?

The Law

5 It is now settled law that there are certain circumstances where the court may interfere with a testator's right to dispose of property as he chooses. An application can be made by a named person, in accordance with the provisions of The Act, where it can be shown that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the maintenance of the applicant. 1

“The application must be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out”. 2 No issue was taken as to this point in this matter.

6 An application under the Act can be made by the following persons:

• (a) the wife or husband of the deceased;

• (b) a child;

• (c) a parent of the deceased who was being maintained wholly or partly or was legally entitled to be maintained wholly or partly by the deceased immediately before his death;

• (d) a former wife or former husband of the deceased, who was being maintained wholly or partly or who was entitled under an existing order of a court of competent jurisdiction or under an agreement between the parties

  to be maintained wholly or partly by the deceased immediately before his death. 3

Submissions on Behalf of the Claimants and the Defendant

Claimants

7 The claimants submit that there are two issues to be resolved. Firstly, are the claimants proper parties to this action, and secondly, what is the true value of the deceased's net estate. In answer to the first question it was submitted that Marjorie Morrison was the former wife of the testator. She had obtained a court order giving her the sum of One Hundred Thousand Dollars ($100,000.00) per month as maintenance for life. It was therefore the duty of the testator to make reasonable provision for her in his will, in light of the existing court order.

8 James Morrison although an adult child, was a proper party to the claim as he was a child suffering from a mental disability. James was, subsequent to the death of the testator, declared a mental patient by the court.

9 The submissions in respect of Zoe and Zara Morrison were somewhat different. It was acknowledged that they were not children as defined by the statute. The argument however was that they fell to be maintained by the deceased because of the incapacity of their father. Counsel relied on the Maintenance Act and opined that grandparents were obligated to take care of their grandchildren in circumstances where their parents could not do so.

10 In submitting on the second issue Counsel suggested that the court ought not to be misled by the Defendant as to the paltry sum of Thirty Million which she put forward as the value of the estate. There was evidence to suggest that based on the nature of the testator's business, his real estate holdings and lavish lifestyle, his estate was worth far

more than the Defendant put forward to this court. They relied on the evidence of the court appointed expert who valued the testator's architectural firm. They also submitted that the Defendant by her actions was less than forthcoming with the court as to the assets which made up the estate. Due to her dual role as executor and sole beneficiary of the estate the Defendant was able to sell the shares in the firm in an effort to avoid this action

11 The shares, it was argued, were grossly undervalued and as such the estate made a loss. The actions of the Defendant were deliberate as this was done subsequent to the filing of the claim and was in an effort to thwart the claim. It was submitted that the court in reliance on the evidence of the expert should make a finding that the estate provides Marjorie Morrison with the sum of Fifteen Million ($15,000,000), James Morrison with the sum of Thirty Million ($30,000,000) and Zoe and Zara Morrison with the sum of Five Million ($5,000,000). In the event that the court is of the view that the estate's true value is Thirty Million Dollars ($30,000,000) then they request on behalf of Marjorie Morrison Ten Million Dollars ($10,000,000), for James Morrison Fifteen Million Dollars ($15,000,000) and on behalf of Zoe and Zara Morrison the sum of Two Million Five Hundred Thousand Dollars ($2,500,000).

Defendant

12 Counsel for the Defendant at the commencement of the matter raised a preliminary point. It was submitted that the grandchildren are not applicants under the Act. It was later further submitted in closing, that the matter was commenced without a certificate of next friend so that, in any event, the grandchildren were not properly a party to the claim.

13 In relation to Marjorie Morrison they submitted that she was not entitled to anything at all. The former Mrs. Morrison had received a significant cash settlement on divorce and was not in need of any assistance. Her evidence was that she resides with one of her daughters and pays no bills, it was argued that she is able to maintain herself for the remainder of her days.

14 It was also submitted that James Morrison failed to qualify as a child with special needs. James it was contended, did not suffer from a mental disorder but instead had a drug habit which was unlikely to be resolved if he was financially supported in this habit by his parents or other relatives. The purpose of The Act was to provide maintenance for qualified persons who are incapable of maintaining themselves. James is married and is the father of two children. At some point he held a job and was able to provide for his family. What he needed according to medical...