Thompson (Gloria) v Igbinedion (Cherry) (Executrix of the estate of Lyndell Allister Thompson, deceased)

JurisdictionJamaica
CourtSupreme Court
Judge SYKES J.
Judgment Date17 December 2008
Judgment citation (vLex)[2008] 1 JJC 0701
Date17 December 2008
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. HCV 000119/2004
BETWEEN
GLORIA THOMPSON
CLAIMANT
AND
CHERRY IGBINEDION (Executrix of the estate of Lyndell Allister Thompson deceased)
DEFENDANT
IN CHAMBERS
Ingrid Clarke Bennett and Pamela Shoucair Gayle instructed by Pollard Lee-Clarke and Bennett for the claimant
Dr. Lloyd Barnett and Maurice Frankson instructed by Gaynair and Fraser for the defendant

INHERITANCE - Will - Whether deceased failed to make reasonable provision for claimant - Inheritance (Provision for Family and Dependants Act, S. 4, 6, 7 and 19 - Registration of Titles Act S. 70 and 71

SECTIONS 4, 6, 7 AND 19 OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT, SECTIONS 70 AND 71 OF THE REGISTRATION OF TITLES ACT

SYKES J
1

This is an application under section 6 of the Inheritance (Provision for Family and Dependants) Act ("the Act") made by Mrs. Gloria Thompson, the widow of the deceased, Mr. Lyndell Thompson, who died on September 3, 1995. The couple met in 1978, began living together in February of 1980 and were married on August 17, 1985.

2

It is the contention of Mrs. Thompson that her husband, by his will, failed to make reasonable financial provision for her out of his estate. She has come to this conclusion because of what I am about to describe. There is a will dated July 12, 1994. The will has been probated and no issue is raised as to its validity. By that will Mr. Thompson appointed his daughter, Lady Cherry Igbinedion, and Mr. Kenrick Thompson, his son, executors and trustees. Under the will, Mr. Thompson devised 28 Halifax Avenue, Kingston 6, to his daughter and another property located at 2 Fairdene Avenue, Kingston 19 to his son. The residuary clause left real and personal estate to his wife absolutely. On the evidence, there was no real estate in the residuary estate. The residuary estate consists of furniture, a motor car that has now been stolen and two bank accounts. One of these accounts is said by Mrs. Thompson to be exhausted. She has not provided any proof of this. The state of the other account is not known.

3

Mrs. Thompson seeks to remedy this failing by her husband by a fixed date claim form in which she is asking for the following declaration and orders:

  • a. A declaration that:

    i .The disposition of the estate of Lyndell Thompson deceased, the claimant's late husband, effected by his will is such as not to make any or any adequate financial provisions for the maintenance of the claimant.

  • b. an order that:

    • i. The claimant be granted specific permission by the court to make application under section 6 of the Inheritance (Provision for family and Dependants) Act.

    • ii. Adequate provision be made for the claimant out of the assets of her deceased husband to wit: she be given one half interest in property situate at 28 Halifax Avenue, Kingston 6 by the deceased at the date of his death.

    • iii. The court makes such further or consequential order as shall be necessary and equitable in the circumstances.

    • iv. The estate of the deceased bears the costs of this application.

4

Lady Igbinedion responded with her application for court orders in which she wants these orders:

  • a. The claimant be ordered to pay to the defendant the sum of fifty thousand dollars ($50,000) per month being mesne profits pending the claimant's occupancy of the premises situate at 28 Halifax Avenue, Kingston 6 in the parish of St. Andrew and registered at volume 1057 folio 418 of the Register Book of Titles from 9 th day of April 2001.

  • b. The claimant quit and deliver up possession of the said property to the defendant within ninety days of the date hereof.

  • c. The claimant whether by herself or her servants and agents be restrained from renting or letting any part, portion or section of the property.

  • d. The claimant deposit all rental collected by her from the property in a bank account in the defendant's account.

  • e. The claim made by the claimant be dismissed for want of prosecution.

  • f. Such further or order as this Honourable Court deems just; and

  • g. Costs of this application and costs thrown away to be the defendants.

5

Lady Igbinedion is not pursuing her application to dismiss for want of prosecution. I should say as well that the claimant was granted permission to pursue her claim out of time by another judge of this court and that is no longer an issue be decided.

6

Mrs. Thompson filed an additional affidavit on the morning of October 18, 2007, the date the hearing commenced. Dr. Barnett objected to the affidavit and the objection was upheld. These are the reasons for upholding the objection.

7

The hearing of this matter was set for October 18, 2007. It was scheduled to last the entire day. The date was set on May 1, 2007 by Campbell J. At the time the date was set, the claimant was represented by counsel as was the defendant. The defendant does not live in Jamaica. She lives in Nigeria and maintains a home in London, England. She flew to Jamaica specifically for this hearing. According to Mrs. Ingrid Clarke Bennett, counsel for the claimant, the affidavit serves three purposes. The first is to update the figures given in the 2004 affidavit. Second, to disclose things that needed to be disclosed and third, to respond to the defendant's affidavit.

8

There is no affidavit evidence explaining this very late filing of the affidavit. Mrs. Clarke Bennett submitted that permission to bring this claim was granted only in February 2006. That may be true but the defendant filed her affidavit in response to the claimant's as well as her own notice of application for court orders on February 9, 2007. Lady Igbinedion served her affidavit on Mrs. Thompson on February 13, 2007. Therefore when the matter came before Campbell J. on May 1, 2007, the defendant's application and supporting affidavit were already on the file and there is no complaint that it was not served. In other words when the matter came before Campbell J., Lady Igbinedion's affidavit had been filed at least ten weeks before. That is more than sufficient time to respond to the contents of Lady Igbinedion's affidavit. There is no evidence that the claimant did not know of the defendant's affidavit before now.

9

Mrs. Clarke Bennett said that her client left the island on March 25, 2007, and returned to the island on October 3, 2007, that is to say, approximately six weeks after she was served with the defendant's affidavit. If she chooses to leave the island without responding to the affidavit that is her choice but it has consequences. She had an opportunity to respond to the affidavit before she left. She chose not to do so. Even after she left Jamaica she could have responded to the affidavit. While abroad she could have given her attorneys instructions. She could have communicated by post or by courier or even by email. She could have returned to Jamaica earlier. She chose none of these possibilities. Even after her return on October 3, 2007, knowing that the hearing was set for October 18, 2007, she did not rouse herself to complete her affidavit by, for example, October 10 so that the defendant may have had the ability to hear of its contents and instruct her attorneys accordingly before her arrival in Jamaica.

10

It was also said that Mrs. Thompson's ailing condition prevented her from giving instructions. I am not impressed by this submission since ailing is not a synonym for inability. The fact that one is ailing, in itself, cannot mean that it is impossible or even difficult to give instructions.

11

I see no good reason to admit an affidavit that contains new information that may precipitate an adjournment in circumstances where the defendant has come to the island from Nigeria at significant expense. She may need time to respond if the affidavit were admitted which may add to the costs. I do not believe a costs order against the claimant would be appropriate. There is no evidence that either Mrs. Thompson or the estate of Mr. Thompson has liquid assets to pay the costs of the defendant.

12

The claimant next applied for an adjournment which was refused. Tardiness in preparation or lack of instructions to one's attorney when the capacity and the means to give such instructions exist is not a reason to grant an adjournment. I go to the law on the matter.

General observations on the law

13

It is obvious that the Jamaican Parliamentarians were influenced greatly by the English statute, The Inheritance (Provision for Family and Dependents) Act, 1975 as well as the ancestor of that legislation, namely, the Inheritance (Family Provision) Act, 1938. The original English legislation was amended several times between 1938 and 1975. Influence, however, is not a synonym for reproducing. The Jamaican legislation does not make a distinction between spouses and other applicants - a distinction that is made by the 1975 English Act. I say this to say that I do not believe that counsel for the applicant took sufficient note of the difference in the statutory wording regarding spouses. This distinction limits the effectiveness of English cases that deal with spouses. The cases that would be of greater assistance are those cases not involving spouses.

14

The court in Jamaica cannot make an order for anything greater than maintenance in respect of spouses whereas the English courts, in respect of spouses (and spouses alone), may make an order that goes beyond what is strictly required for the maintenance of the spouse. The English statute has a definition of reasonable financial provision (which is not in the Jamaican Act). The definition states in the material part of section 1 (2) (a): "such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her...

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