Parchment (Judith) v Marrion Genus (Executor, estate Alpheus Parchment)

• Jurisdiction: Jamaica
• Judgment Date: 19 September 2006
• Judgment citation (vLex): [2006] 9 JJC 1901
• Docket Number: CLAIM NO HCV 00920 OF 2005
• Date: 19 September 2006
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO HCV 00920 OF 2005

BETWEEN

JUDITH PARCHMENT

CLAIMANT

AND

MARRION GENUS (Executor, estate Alpheus Parchment)

DEFENDANT

CLAIM OF BENEFICIAL INTEREST IN HOUSE FORMING PART OF DECEASED'S ESTATE-EVIDENCE - WHEN DECLARATIONS MADE DURING LIFETIME OF PERSON, SINCE DECEASED, ADMISSIBLE-INHERITANCE ACT- CLAIM BY SPOUSE- WHETHER DECEASED JUSTIFIED IN EXCLUDING CLAIMANT AS A BENEFICIARY

REAL PROPERTY - Beneficial interest

1 Mrs. Judith Parchment feels hard-done by her late husband Alpheus Parchment. After his death she discovered that he had bequeathed the house that he lived in, to Miss Marrion Genus. Mrs. Parchment says that although the property was registered in his name only, she is, by contract, a co-owner. He was therefore not entitled to dispose of it as he has attempted.

2 Miss Genus on the other hand asserts that Mrs. Parchment should not be surprised by Mr. Parchment's decision. Miss Genus says that the spouses had been estranged for some time. Mrs. Parchment lived in the United States of America while Mr. Parchment lived in Jamaica. Miss Genus goes further to say that Mr. Parchment was ill and Mrs. Parchment had abandoned him. It was she, Miss Genus, who cared for him. Miss Genus resists Mrs. Parchment's claim under the Inheritance (Provision for Family and Dependants) Act on this basis. She also denies that Mrs. Parchment has any interest in the house. Finally, Miss Genus asserts that the bequest to her arises from Mr. Parchment's contract with her.

3 The questions which arise are firstly which contract, if any, is enforceable, and secondly, what, if anything, is Mrs. Parchment entitled to under the Inheritance Act. I shall first examine the evidence so as to determine the facts. Thereafter I shall examine the law as it applies to claims of beneficial interests in property, the admissibility of statements said to have been made by Mr. Parchment during his lifetime, and the Inheritance Act claim. In conclusion, I shall apply the law to facts as I find them in order to arrive at a decision.

4 Mrs Parchment's Case

5 Mr. and Mrs. Parchment commenced their union on 11 ^th March, 1985, in the United States of America. He sponsored her entry to that country. It is common ground that Mr. Parchment owned land at Great Bay in the parish of St. Elizabeth (the property) prior to the marriage. The property is now the subject of the dispute between the parties. It is Mrs. Parchment's case that a development in 1992 changed Mr. Parchment's sole ownership. On her case, Mr. Parchment, in that year, "suggested to (her) that (they) pool (their) resources together to build a retirement home on (the property)". In her witness statement, her evidence is that Mr. Parchment told her:

"If I agreed to build the said house together with him we would become equal joint owners of the said property, including the land and the house".

6 She says that she acted upon Mr. Parchment's proposal and pooled monies with him in the construction of a house on the property. She says that she also purchased a number of items for the house. In her words:

"If (Mr. Parchment) had not represented to me in 1992 that I would be given half of the land and building thereon, I would not have invested so much of my personal funds in the construction of the said building."

7 It is important to note that nowhere in her evidence, either in her witness statement, or in cross-examination, does Mrs. Parchment say that Mr. Parchment, at any stage, acknowledged that she was a part owner of the property. I shall make further reference to this aspect anon.

8 For the claim under the Inheritance Act, the logical starting point would be a reference to Exhibit 1. This is the will dated 15 ^th April 2004 executed by Mr. Parchment (he died on 4 ^th September 2004). After appointing Miss Genus his sole executrix, Mr. Parchment went on to make the following gifts in his will:

"I give and devise to Marion Genus all that parcel of land situate and lying at Great Bay in the parish of Saint Elizabeth registered at Volume 1369 Folio 20 of the Register Book of Titles with dwelling house situate thereon absolutely.

I give and bequeath to Marion Genus all my furniture and household effects absolutely.

Marion Genus is to be responsible for taking care of me up until the time of death

And I give all the rest and residue of my real or personal property of what nature or kind soever not herein otherwise disposed of to the said Marion Genus."

9 Clearly Mrs. Parchment is excluded as a beneficiary. She asserts that it is unreasonable for Mr. Parchment not to have made a financial provision for her in his will. She states that the property is valued at $5,000,000.00, but there is nothing by way of a professional or other valuation to support this figure. There does not seem to be much else in this estate.

10 Juxtaposed against the value of this asset is Mrs. Parchment's testimony to the effect that she is in need. She asks that the court remedies the imbalance. She therefore desires an order in her favour pursuant to the Inheritance Act. Her testimony is that she is unemployed and suffers from a number of serious illnesses which have prevented her from working since January 2004. In any event she is now sixty years old and would, in the normal course of events, be looking-toward retirement. She does not receive a widow's pension. Though she does not express it in this way, it is evident from her testimony, that she would have been presently better off financially if she had not invested her money in the property. Among the things she said that she did was to liquidate three insurance policies and contribute the proceeds (US$10,000.00) directly toward the construction of the property. There is a receipt (Exhibit 6) issued by a Mr. Joshua Roberts, dated 25/5/93, indicating that she paid him the sum of $152,000.00 advance on "roofing at Great Bay St. Elizabeth". These are not contradicted in any way.

11 In addressing the matter of their living separate and apart, Mrs. Parchment testified that on 28 ^th December, 2001, her husband left home in the United States in order to come to Jamaica for four weeks. She says he did not return home up to the time of his death. She said that she, on the other hand, could not come to live in Jamaica because their son Chase was, at least initially, still in high school. She did, however, visit Jamaica:

"In January 2003, Chase and I visited the deceased in Jamaica. (Mr. Parchment) agreed that he would come to the United States of America and spend half of the year until Chase finished school. I returned to Jamaica in December 2003 and I found the Defendant and her son living in our house. I put her out and I returned to the United States on the 10 ^th day of January 2004."

12 In cross-examination, Mrs. Parchment agreed that she had been seeking to enforce maintenance orders secured in legal proceedings instituted against Mr. Parchment. The maintenance was for their son, then in college. She explained that she took "steps to have the court apply (Mr. Parchment's) social security payments to the maintenance because that was the only money he was earning apart from the rent he was collecting".

13 Despite these legal proceedings, Mrs. Parchment, in an amplification of her witness statement, said:

"The relationship between me and Alpheus Parchment was very good, I would say.... While he was living in Jamaica I would call him daily."

14 On the matter of rental, Mrs. Parchment asserts that her husband had rented a portion of the property to Miss Genus. She produced receipts (Exhibit 4) made out by Mr. Parchment to that effect. It is surprising therefore that she would put out a legitimate tenant, but no reason has been provided for her action.

15 Miss Genus' Case

16 Save for the alleged limitation to Mr. Parchment's interest in the property, there is no contest concerning the validity of the testamentary gifts to Miss Genus. She also asserts that these bequests to her were not out of the goodness of Mr. Parchment's heart, but a matter of...