Francis v Francis et Al

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman, J.
• Judgment Date: 20 July 2007
• Neutral Citation: AG 2007 HC 35
• Court: High Court (Antigua)
• Docket Number: ANUHCV 0359 of 2002
• Date: 20 July 2007

High Court

Blenman, J.

ANUHCV 0359 of 2002

Francis

and

Francis et al

Appearances:

Mr. Gerald Watt QC and Dr. David Dorsett for the claimant.

Mr. Ralph Francis in person.

Mr. Jason Martin for the second and third defendants.

Administration of estates - Reconstruction — Accounting — Distribution — Agreement of beneficiaries — Residual clause — Apportionment of estate was agreed to by beneficiaries — Agreement was a lawful variation of the trust — Claim dismissed.

Limitation of action - Administration of estates — Deceased died 20 years prior — Portions of estate had been disposed of — Whether action for distribution and accounting was statute barred — Claim dismissed.

Blenman, J.

1 This is a claim for the reconstruction, accounting and proper distribution of the Estate of Claude Earl Francis.

2 Mr. Maxwell Francis (Mr. Maxwell), Mr. Ralph Francis (Mr. Ralph), Ms. Claudia Francis (Ms. Claudia) and Mr. Anthony Francis (Mr. Anthony) are brothers and sister (and they are all very intelligent). Mr. Maxwell is a dentist, Mr. Ralph is a lawyer, Mr. Anthony is a doctor and Ms. Claudia's profession has not been stated. Their father, Mr. Claude Earl Francis (Mr. Claude, who is also referred to as the father) was a well known and a successful lawyer and he was married to their mother Thirza Hayden Francis deceased (Ms. Thirza).

3 Over the years, Mr. Claude accumulated substantial wealth and owned a large amount of real property situated in Antigua and Barbuda. He died in 1978 leaving a will in which he appointed Ms. Thirza as the sole executrix; he devised the residue of his estate to Ms. Thirza and his (four) 4 children in equal shares. Mr. Maxwell alleges that Mr. Claude by this devise intended that Ms. Thirza (also referred to as his mother and their mother) and the other beneficiaries (the children) were entitled to share the estate in equal shares (that is 20% each). Mr. Maxwell says that Ms. Thirza never carried out Mr. Claude's instructions and/or never completely and properly distributed the estate; while Ms. Thirza distributed part of the estate it was not done in accordance with the will and in any event a part of the estate remains undistributed.

4 Further, Mr. Maxwell alleges that Mr. Claude's estate was the subject of litigation and based on the agreement of all of the beneficiaries part of the lands, owned by the estate namely: Yeptons, was transferred into Mr. Ralph's name (as trustee), for the benefit of all of the beneficiaries. He, further, alleges that Mr. Ralph has subdivided part of Yeptons and sold portions of it contrary to the agreement that the beneficiaries had reached. Mr. Maxwell admits that he and the other beneficiaries have benefited from Ms. Thirza's distribution of Mr. Claude's estate he nevertheless complains that it was improperly distributed and that substantial portions of the estate have been dealt with without his knowledge. Further, he fears that the estate will be frittered away and that he will never receive his just and proper entitlement unless a reconstruction, accounting and proper distribution is done.

5 Mr. Maxwell says, further, that Ms. Thirza died on 10th September 2001 and left a will in which she purported to devise property to Ms. Claudia, Mr. Anthony, Mr. Ralph, and to various grandchildren, she also gave several items of personalty to him. However, he complains that Ms. Thirza could not lawfully devise the property, as she did, since they did not form part of her estate but rather they properly formed part of the undistributed part of Mr. Claude's estate. In all of these circumstances, Mr. Maxwell has filed the present claim against Mr. Ralph, Ms. Claudia and Mr. Anthony.

6 Mr. Ralph, Mr. Anthony and Ms. Claudia oppose the application for a reconstruction, accounting and a proper distribution of Mr. Claude's estate since they allege, that, after Mr. Claude's death in 1978, a meeting was convened between Ms. Thirza and their four children (who are all beneficiaries under his will) at which the distribution of Mr. Claude's estate was agreed upon (the agreement). Further, Mr. Ralph, Mr. Anthony and Ms. Claudia contend that all of the children including Mr. Maxwell had agreed that the welfare of their mother was to take priority over the interest of the children and with this in mind the children agreed to have Mr. Claude's estate dealt with by Ms. Thirza in a manner which was agreed to by all of the beneficiaries. Based on the agreement reached by all of the beneficiaries, Mr. Claude's estate was distributed by Ms. Thirza (to the beneficiaries) and Mr. Maxwell received his share in accordance with that agreement. Mr. Maxwell has taken and occupied the properties that he selected and which were agreed by the beneficiaries should be given to him. They therefore contend that it is improper for Mr. Maxwell to now seek an accounting, reconstruction and proper distribution of Mr. Claude's estate when he was one of the beneficiaries who agreed to its distribution which has been effected.

7 Further, for his part, Mr. Ralph maintains that Yeptons was transferred to him for his sole benefit in accordance with the agreement. He denies that the transfer of Yeptons to him was made in trust and says that he finds it strange that after several years of his being in possession of Yeptons Mr. Maxwell is now seeking to lay a claim to Yeptons. Ms. Claudia for her part, contends that Ms. Thirza transferred part of the property owned by Mr. Claude's estate to her with the consent and approval of the other beneficiaries; it is therefore disingenuous for Mr. Maxwell to seek an order of the Court for Mr. Ralph, Mr. Anthony and Ms. Claudia to account, distribute and reconstruct Mr. Claude's estate; this is particularly so since Mr. Maxwell has obtained benefits in accordance with the agreement and parcels of land that formed part of Mr. Claude's estate were apportioned to him and he has exclusive ownership and use of those parcels that were apportioned to him by agreement.

8 Finally, both Ms. Claudia and Mr. Ralph contend that due to the fact that all of the beneficiaries have received and dealt with various parts of Mr. Claude's estate which were allocated to them for in excess of 20 years it would be impossible for a reconstruction or proper accounting to be achieved. In any event, Mr. Claude's estate has already been distributed.

ISSUES

9 The issues to be determined are as follows:

• (a) Whether Mr. Claude's residuary estate was distributed in accordance with his will or by agreement between all of the beneficiaries;

• (b) Whether Mr. Ralph holds Yeptons on trust;

• (c) Whether Ms. Thirza was lawfully entitled to devise Crawl Bay in her will;

• (d) Whether Mr. Maxwell can properly institute a claim against Mr. Ralph, Ms. Claudia and Mr. Anthony for reconstruction and proper distribution and accounting; alternatively

• (e) Whether the Court should order Mr. Ralph, Ms. Claudia and Mr. Anthony to reconstruct, account and redistribute Mr. Claude's estate.

THE LAW

10 I find it convenient to deal with the relevant statutory provisions at this juncture I will commence with the Limitation Act, 1997 Laws of Antigua and Barbuda.

Section 17 of the Limitation Act provides as follows:

• (1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

Section 23(1) of the Limitation Act states as follows:

“No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action–

• (b) to recover from the trustee trust property, or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use.

• (2)(a) where a trustee who is also a beneficiary under the trust receives or retains trust property or its proceeds as his share on a distribution of trust property under the trust, his liability in any action brought by virtue of subsection (1)(b) to recover that property shall be limited to the excess over his proper share.

11 The next statute is the Real Property Limitation Act, Cap 367 of the Laws of Antigua and Barbuda. Section 2 of the Real Property Limitation Act provides a limitation period of 12 years for the recovery of land.

12 The next relevant statute is the Real Representative Act, Cap 368 of the Laws of Antigua and Barbuda.

Sections 2, 3 and 4 of The Real Representative Act provide as follows:

• “2.(1) Where real estate is vested in any person without a right in any other person to take by survivorship it shall, on his death, notwithstanding any testamentary disposition devolve to and become vested in his personal representatives or representative from time to time as if it were a chattel real vesting in them or him.

• 3.(1) Subject to the powers, rights, duties and liabilities hereinafter mentioned, the personal representatives of a deceased person shall hold the real estate as trustees for the persons by law beneficially entitled thereto, and those persons shall have the same power of requiring a transfer of real estate as persons beneficially entitled to personal estate have of requiring a transfer of such estate.

• 4.(1) At any time after the death of the owner of any land, his personal representatives may assent to any devise contained in his will, or may convey the land to any person entitled thereto as heir, devisee or otherwise and may make the assent or conveyance, either subject to a charge for the payment of any money which the personal representatives are liable to pay, or without any such charge, and on such assent or conveyance, either subject to a charge for the payment of any money which the personal representatives are liable to pay or without any and on such assent or conveyance, subject to a charge for...