Nicholas v Nicholas and Nick's Haulage Contractor's Ltd

• Jurisdiction: Jamaica
• Judge: Thompson-James, J
• Judgment Date: 25 September 2017
• Neutral Citation: [2017] JMSC Civ 132
• Docket Number: CLAIM NO. 2016 HCV 02218
• Court: Supreme Court (Jamaica)
• Date: 25 September 2017

[2017] JMSC Civ 132

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

THE CIVIL DIVISION

Thompson-James, J.

CLAIM NO. 2016 HCV 02218

Between

In the Matter of the Estate of Neville Nicholas

and

In the Matter of an application by the wife of the deceased pursuant to the Inheritance (Provision for Family and Dependents) Act

and

In the Matter of the Property (Rights of Spouses) Act

and

In the Matter of Nick's Haulage Contractor's Limited

Lystra Nicholas

Claimant

and

Everald Nicholas

(Executor in the estate of Neville Nicholas)

1 ^st defendant

and

Nick's Haulage Contractor's Ltd

2 ^nd defendant

Mrs. Carol Davis and Mr. S Hanson instructed by Seyon T. Hanson & Co. for the Claimant.

Ms. Vivienne Washington for the 1 ^st Defendant.

Dr. M. Anderson for the 2 ^nd Defendant.

CIVIL PROCEDURE — APPLICATION FOR COURT ORDERS — APPLICATION FOR EXTENSION OF TIME PURSUANT TO SECTION 4, 5 AND 6 OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDENTS) ACT

IN CHAMBERS

Thompson-James, J

1 This is an application by the Claimant for the court to extend time to make an application under the Inheritance (Provision for Family and Dependants) Act (hereinafter referred to as the ‘ Inheritance Act’).

2 May 30, 2016, the Claimant, who at the time was 70 years old, initiated a claim by way of Fixed Date Claim Form against the Defendants, seeking several reliefs in relation to the estate of her deceased husband, Neville Nicholas. He died testate May 24, 2009. The Claimant contends, among others, that the deceased failed to make provision for her in his Will and she is in need of maintenance. The Claimant and the deceased were married February 12, 1972.

3 The 1 ^st Defendant is the executor of the deceased's estate. The 2 ^nd Defendant is a company duly incorporated under the Laws of Jamaica October 19, 1978. The deceased was majority shareholder (85%) and director. The Claimant is a minority shareholder in the 2 ^nd Defendant company, holding 5% of shares. The 1 ^st Defendant avers that he is a director of the 2 ^nd Defendant company and Chairman of the board, having been initially appointed February 21, 2012, replacing the deceased who was the managing director of the company. In evidence is a copy of a company status letter dated June 23, 2017 from the Companies Office of Jamaica indicating same. However, the Claimant disagrees that this is so, on the basis that no resolution was passed appointing him as such.

4 Probate was granted in the deceased's estate November 12, 2010. July 6, 2016, the Claimant filed a Notice of Application for Court Orders seeking several orders, some of which were made pursuant to the Property Rights of Spouses Act (hereinafter referred to as ‘ PROSA’), and the Inheritance Act. It is apparent that the contents of the Notice are the same as the Fixed Date Claim Form.

5 When the matter came up before this court for hearing April 7, 2017, two other applications had also been filed, one being filed jointly by both Defendants August 15, 2016, and the other filed by the 2 ^nd Defendant only; January 31, 2017. These applications seek, inter-alia, an injunction restraining the Claimant from dealing with company property, disclosure in relation to company property and accounts, and recovery of possession of company property.

6 It is not disputed that an application of the type that the Claimant seeks to make pursuant to the Inheritance Act shall ordinarily be made within six (6) months of the date on which the grant of administration in the deceased's estate is taken out. It is also undisputed that the Claimant is well past this deadline, almost 6 years having passed since the 1 ^st Defendant took out the grant. She therefore requires the permission of the court.

7 April 7, 2017, the court was only concerned with hearing the application in relation to the following order in the Notice:

• xvii) An order granting leave of this Honourable Court extending the time for the making of this application by the Claimant under the Property (Rights of Spouses) Act and the Inheritance (Provision for Family and Dependants) Act.

8 At the hearing, the Claimant conceded that an application could not ordinarily be made under PROSA after the death of a spouse (section 3 of PROSA), hence that aspect of the application was withdrawn by the Claimant.

9 The sole issue for the court's determination is whether time to make an application under the Inheritance Act should be extended.

10 August 2, 2016, an interim injunction was granted against both Defendants, and extended on several occasions; from selling or entering into any agreement for sale in respect of the properties at 7 and 9 Beechwood Avenue, both belonging to the 2 ^nd Defendant, as well as the property at 46 Aqua Avenue held jointly by the Claimant and the deceased; preventing the 1 ^st Defendant, along with his servants/agents from withdrawing funds from the accounts of the 2 ^nd Defendant except for the purpose of ordinary business expenses; and from disposing of any and all assets of the 2 ^nd Defendant company. Up to the time of hearing, this interim injunction was still in force.

11 The Claimant and the deceased did not have any children together; however, they each had three children prior to the marriage.

12 The net estate of the deceased primarily consists of his shares in the 2 ^nd Defendant, his half share in the matrimonial home at 46 Aqua Avenue, and property at Danvers Pen in St. Thomas. The deceased devised these assets to his three children in his Last Will and Testament dated September 20, 1999, along with the residue of his estate (both real and personal). In his Will, the deceased also purported to devise assets of the company, by directing that his children, to whom he gave all his shares in the company, should transfer certain assets to the persons specified. These assets include the property at 7 Beechwood Avenue and a truck. No provision was made in the Will for the benefit of the Claimant.

13 The Claimant operates a business called “Capricorn Guesthouse” (initially registered under the Business Names Act November 15, 2010) along with Andre Damian Shim, at 7 Beechwood Avenue. The property is owned by the 2 ^nd Defendant.

14 The parties have filed a total of seven (7) affidavits prior to the hearing of the application. Whilst some of these affidavits were not filed with particular reference to the aspect Notice of Application being dealt with at this time, I find it necessary and useful to consider them in coming to a decision.

THE CLAIMANT'S SUBMISSIONS

15 The Claimant submits that the court has the power to grant permission for an extension of time within which claims may be brought pursuant to the Inheritance (Provisions for Family and Dependents) Act and relies on sections 4, 5, and 13.

16 It is submitted that the Claimant should be granted such permission in light of the following:

• i. There is merit to the claim;

• ii. There would be no prejudice to the Defendants;

• iii. There is a reasonable explanation for the delay;

• iv. The Claimant was unaware of the limitation period despite retaining the services of various Attorneys none of which advised her regarding same;

• v. The delay on the Claimant's part was not intentional;

• vi. It is in the interest of the administration of justice that the Claimant be granted leave to pursue her claim;

• vii. The estate has not yet been wound up and sums collected have not been distributed, nor have the properties comprising the real estate been sold;

• viii. The Claimant through her Attorneys has been in negotiations with the Attorney for the 1 ^st Defendant and the 1 ^st Defendant was always aware of her concerns regarding his handling of the estate and the division of same as contained in the will of the Claimant's deceased husband.

17 It is further submitted that the Claimant has a strong case with a real prospect of success and that she has a reasonable explanation for her delay in applying pursuant to the relevant act.

18 Her explanation for the delay is to be found in her affidavit filed July 6, 2016 in support of the Notice of Application, in which she essentially states that she was unaware of the time limit for making application, as she was not so advised by three (3) attorneys that she had consulted with prior to her current attorney, who subsequently advised her of the time limit. The relevant paragraphs of the aforementioned affidavit read as follows:

• “37) That I have been advised by my Attorneys-at-Law that this action should have been brought under the Property (Rights of Spouses) Act within a period of twelve months of the termination of cohabitation, and under the Inheritance Provisions for Family and Dependants) Act within a period of six months from the date representation with respect of the estate of the deceased is taken out.

• 38) That I am aware that my claim has exceeded the period stipulated under both acts and I wish to state that immediately after my Husband's death I went to Mr. Gilroy English Attorney-at-Law however he was ill and his daughter who is also an Attorney had my files for some time without initiating any action or advising me of any time limits within which to do same.

• 39) That I eventually proceeded to recover my files and took them to Mr. Anthony Pearson and he proceeded to enter into communication with an Attorney representing the estate of my deceased husband however the matter was not resolved and I eventually took my files to Mr. Pearnel Charles Jr. who also had some communication with the 1 ^st Defendant's Attorney-at-Law.

• 40) That Mr. Charles eventually referred me to my current Attorney with whom I did a consultation, and it was during the said consultation that my Attorney advised me that there were time limits on the applications which I am now making, and that in the event that applications are done outside of that period the leave of the court would have to be sought...