Williams (Louise) v Stephen Mavaou and Elaine Barbara Williams (Executors of the estate John Basil Williams dec'd)

• Jurisdiction: Jamaica
• Judge: HARRISON J
• Judgment Date: 17 May 2000
• Judgment citation (vLex): [2000] 5 JJC 1701
• Court: Supreme Court (Jamaica)
• Date: 17 May 2000

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

LOUISE WILLIAMS

APPLICANT

AND

STEPHEN MAVAOU

AND

ELAINE BARBARA WILLIAMS (Executors of the estate John Basil Williams dec'd)

RESPONDENTS

IN THE MATTER OF JOHN BASIL WILLIAMS Late of 3 Hellshire Drive, Independence City in the Parish of St. Catherine, Deceased, Testate.

IN THE MATTER OF AN APPLICATION BY LOUISE WILLIAMS UNDER THE INHERITANCE(PROVISIONS FOR FAMILY AND DEPENDENTS ACT)

WILLS - No provision for applicant in will - Order for reasonable financial provision for maintenance of applicant - Inheritance (Provision for Family and Dependents) Act

HARRISON J

1 On February 15 ^th , 2000 I completed hearing the evidence in this matter and reserved judgment. I was unable to hand down the judgment before so, I apologise for the delay.

2 Introduction

3 Prior to the coming into operation of the Inheritance (Provisions for the Family and Dependants) Act in 1993(hereinafter referred to as the Act), the position in Jamaica was that the courts did not have the power to vary or disturb testamentary dispositions or succession rights on testacy and therefore a member of the family of the deceased or a person who was dependent upon him, who is unprovided for, was left without a remedy in law. The Act now makes provision for a court to make orders on application for reasonable financial provision to be made for maintenance of the family and dependants of a deceased person out of the estate of that person where 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 his family and dependants.

4 The Application

5 Louise Williams, the applicant in this matter, has alleged that her late husband. John Basil Williams, made no provision for her in his will dated 14 ^th June 1995 and which was probated on the 9 ^th September, 1997. She therefore seeks an order under section 4 of the Act that the deceased failed to make reasonable financial provision for her maintenance. The will contains the following clauses:

"I give devise and bequeath property situated at 3 Hellshire Drive, Independence City Saint Catherine to my uncle Stephen Westley Mavour and my daughter Barbara Elaine Williams to be held as Joint Tenants.

The rest and residue and remainder of my estate both real and personal whatsoever and wheresoever situated I give and bequeath to Stephen Westley Mavour and Elaine Barbara Williams in equal shares."

6 THE AFFIDAVIT EVIDENCE

7 The facts are set out in several affidavits and I have summarized them as best as I can.

8 The Applicant

9 The applicant has stated inter alia, in her affidavit sworn to on the 5 ^th January, 1998, that the deceased and herself had been married for twenty-four years and had been living together prior to their marriage in 1972. After some fourteen years of marriage they adopted a child, Christopher Williams. (Elaine Barbara Williams, the second-named respondent is the daughter of the deceased but not of the marriage).

10 The applicant further deposed that in 1973 the deceased and herself purchased property at 3 Hellshire Drive, Independence City in the Parish of St. Catherine which is registered at Volume 1097 Folio 358 of the Register Book of Titles. Her name was not placed on the title but she states that the deceased had assured her that as his wife she had nothing to worry about because her interest in the property was secure. She has also stated that he told her that he had nobody else to come for anything and she was the only person he had. Upon his death she discovered however, that her husband had done nothing to secure her interest in the property.

11 The property is the only asset of the deceased exhibited in the Inventory for the Probate application. She also said that at the time of his death he held a saving's account at the Bank of Nova Scotia, Victoria Avenue Branch and to the best of her knowledge that account had a balance of over Three Hundred Thousand Dollars ($300,000.00) prior to his death. She states that it was through their joint efforts and throughout their marriage that they pooled their resources to maintain and improve the said property at Hellshire Drive. They had added two (2) bedrooms, a bathroom and an additional kitchen from which they both operated a small grocery shop on the property. She would work the shop whilst the deceased went out to do work as a driver and they would use the proceeds of the earnings from the shop to improve the property, maintain themselves and young Christopher. Save for a small income which she derives from the rental of a portion of the property, she has no other source of income or support for herself and the child. She is approximately fifty-three years of age and due to hypertension she has to visit the Doctor regularly on account of this condition. She contends that they had for the most part "a reasonably good marriage and had supported each other financially and morally."

12 Stephen Mavou

13 Stephen Mavou is a builder by occupation and is the first respondent. He is one of the Executors and beneficiaries under the will of the deceased. He has deposed that the deceased was his nephew and that he had used money he received for compensation arising from injuries he received, to purchase the property. He said that the deceased had advised him that he had used his money to carry out additions to the house at Hellshire Drive.

14 He has also deposed that during the marriage and in particular during the last ten (10) years of the life of the deceased, the relationship between the applicant and the deceased was "extremely bad". The deceased had complained to him that the applicant had mistreated him and at some point in time of the relationship she had ceased cooking and carrying out other domestic duties for him. This he said, resulted in the deceased leaving the matrimonial bed-room. He also deposed that just before the death of the deceased, the deceased had removed from the matrimonial home and rented accommodation for himself. In addition he had also squatted and built a single-room dwelling house on a parcel of land along the Dyke Road in Portmore, St. Catherine. In 1995 the applicant had taken the deceased before the Resident Magistrate's Court for maintenance but that case was adjourned sine die.

15 As to the making of the will he has stated:

"25.That in or about the month of June 1995, the Applicant asked me to accompany him to Spanish Town, in the Parish of Saint Catherine and he directed me to the offices of Messrs. H.G Bartholomew & Company where he advised me that he wished to make a will in which he wanted to make provision for his only daughter ELAINE BARBARA WILLIAMS as he was of the view that if he did not do so, only the applicant would obtain the benefit from his house in Independence City.

25(sic).That he advised me that he would also make me a beneficiary under his Will and that I would be appointed a Executor of same as he trusted me to ensure that his daughter's interest under the said will would be protected."

16 Barbara Williams

17 Barbara Williams in her affidavit of the 15 ^th April 1998 has stated that she is the only natural child of the deceased. She is a businesswoman and resides at 1 Homestead Drive, Port Maria, St. Mary. She has also stated that in late 1974 and until 1976, she had lived with the deceased and the applicant at 3 Hellshire Drive. During this period, she did not see the applicant cook for the deceased. She went to live with a grandmother in St. Mary since 1976. According to her, she would visit her father during the summer holidays and was a witness to several quarrels between the applicant and the deceased which would become violent and each other threatening to kill the other. She recalls that during 1996, the deceased began spending as much as two weeks out of every month at the grandmother's home in St. Mary and he would tell her he could no longer take the treatment being meted out to him by the applicant.

18 She has further stated that on the 16 ^th day of June, 1995, the deceased took her to the Bank of Nova Scotia, Victoria Avenue Branch where he closed the joint account with himself and the applicant. He used the sum of $195,296.28 to reopen an account in both of them names. She had not withdrawn any sums from this account but when she received the pass book from the deceased's cousin Norma, the account had only $78,930.56 to its credit. This sum was used to meet the funeral expenses for the deceased. She finally deposed that she had advised the applicant as to the date and time of the deceased's funeral but she never attended it.

19 Marcus Kamtha

20 Marcus John Kamtha has sworn in his affidavit of the 16 ^th April, 1998 that he is a neighbour of the applicant. He has known the deceased and applicant since 1972.There was constant quarrelling and bickering between the deceased and the applicant and the deceased often times complained to him that the applicant did not treat him well. He said she had refused to cook for him and wash his clothes. Kamtha said that due to the several and frequent quarrels between the applicant and the deceased, he formed the impression that they were not happily married.

21 Keith Thompson

22 Keith Thompson has sworn that he was well acquainted with the deceased and that he worked as a mason during the 1960's. He recalls that after an accident, the deceased had ceased working with his former employer and that he had been compensated for injuries he had received. He was informed by the deceased that he had used a portion of the compensation to pay down on a house in Marverley, St. Andrew but due to the fact that the vendors were taking too long to complete he had deposited on the house in Independence City, St. Catherine.

23 Issued joined

24 The applicant joined...