Harrygin Singh et Al v Harrygin

• Jurisdiction: Trinidad & Tobago
• Judge: Rajkumar, J.
• Judgment Date: 24 January 2012
• Neutral Citation: TT 2012 HC 24
• Docket Number: CV 1371 of 2010
• Court: High Court (Trinidad and Tobago)
• Date: 24 January 2012

High Court

Rajkumar, J.

CV 1371 of 2010

Harrygin Singh et al

and

Harrygin

Appearances:

Mr. Ramesh Lawrence Maharaj S.C, Mr. Prem Persad-Maharaj, Mr. Walesby instructed by Ms. Shaheera Allahar for the claimants.

Mr. Ronnie Bissessar, Ms. Maicoo instructed by Dipnarine Rampersad & Co. for the defendant.

Trust and Trustees - Whether Fully Secret Trust existed — Beneficiaries.

Rajkumar, J.

1 The deceased by his will, (the will), named the defendant, his brother, his sole beneficiary. His estate included 4 properties, (the subject properties). He did not make provision in that will for his wife or his four children by her), (the children) or for the other children he fathered out of wedlock (the other children).

2 The claimants' claim that, despite the express language in the will, their father, the deceased, created a secret trust, under which they were to benefit, with which his will must be impressed. The sole surviving witnesses to that alleged agreement/secret trust were the first named claimant – (the wife of the deceased), and the defendant.

3 The claimants claim to enforce that alleged secret trust, and in the alternative, claim that the first named claimant has an interest in the family home by virtue of a constructive trust arising from the joint contributions made by her and the deceased to its acquisition. They claim in the further alternative for reasonable provision to be made for them out of the estate of the deceased.

4 The issue of whether a secret trust was created is primarily one of fact, and depends to a significant extent on whether the evidence of the first named claimant or the defendant is to be preferred. The children of the deceased were not directly privy to the creation of the trust or the deliberations that went into the making of the will.

ISSUES

• (a) (i) Whether there existed a Fully Secret Trust, with which the will of the deceased was impressed, and the terms of the defendant had accepted and agreed to implement, (the alleged agreement) before the deceased executed his Will.

• (ii) If so, what were the terms of the alleged agreement or trust?

• (iii) Whether the defendant holds the four properties, the subject properties, which comprised the estate of the deceased, as trustee for the benefit of the second to fifth named claimants pursuant to the Fully Secret Trust and the alleged Agreement made between the deceased and the defendant.

• (iv) Whether the Court ought to enforce the alleged trust and /or agreement by the defendant with the deceased, by requiring the defendant to inter alia register the four Deeds of Gift, (already executed by the defendant but not registered), in favour of the second, third, fourth and fifth claimants.

• (b) Alternative to the existence of a secret trust, whether the defendant holds the four subject properties in trust as a Constructive Trustee solely for the benefit of the first claimant or in such proportions as may be deemed just.

• (c) In the further alternative whether the claimants are entitled to relief under the Succession Act Ch.9:02 Part VIII (the reasonable provision claim).

ISSUES

DISPOSITION

5 I find that there came into being a secret trust when the defendant on or about the 8th day of July, 2004 agreed with the deceased and the first named claimant that he be appointed Trustee/Executor of the Will of the deceased and be named as the sole beneficiary thereunder, on the terms and clear understanding that he hold the four subject properties in trust for the children of the deceased with the first named claimant, (the second, third, fourth and fifth named claimants), and that he would divest himself of those properties and vest them in the second, third, fourth and fifth named claimants, upon the youngest claimant, Chris, attaining the age of 21 years.

6 I find that there is clear evidence of a secret trust to this effect coming into operation, as claimed by the first named claimant, and I accept the claimants' evidence to this effect. Accordingly I find that the defendant holds the subject properties solely as trustee for the second, third, fourth, and fifth claimants.

7 I find that the defendant, a trusted brother, uncle, and brother in law, cynically betrayed that trust by his insistence that the properties vested in him by the will, were his to do with as he pleased, when he well knew that this was not the case, and, by his attempt to extract concessions from the claimants. In those circumstances I find that the trust must be enforced by the court.

8 His case, to a significant extent, hinged on explaining the gift to him under the will as the result of the deceased's wish to punish the claimants – his wife and children, for their alleged ill treatment of him. In fact the evidence was that they were the ones who looked after the deceased when he became blind, diabetic, and dependant on dialysis. This attempt to malign the deceased's whole family only serves to make his betrayal even more reprehensible. No sense of grievance over the entirely separate disposition of another property, (the Montrose property), could justify that breach of trust.

9 The properties were left to him by will in accordance with the agreement between him and the deceased that the defendant would hold them in trust for the children of the deceased. They were left to him for him to protect and preserve them in the event of the demise of the first named claimant, and because both the deceased and the first named claimant trusted him implicitly, probably even more than they trusted each other. As it turned out, the defendant was the one from whom the children of the deceased required protection, resulting in the instant action.

10 Alternatively I would have found, if not for the secret trust being proved, that, on established principles of law, the four subject properties were held on trust for the first named claimant, on the basis of her substantial contributions to their acquisition, over her lengthy marriage to the deceased. It is not necessary however, in light of my findings on the existence of a secret trust to consider what the extent of the first claimant's interest was, save that it would have been no less than fifty percent.

11 In light of my findings of fact and law above it is not considered necessary to deal with the alternative issue of whether the claimants are entitled to relief under the Succession Act, Ch.9:02 Part VIII.

ORDERS

13. It is ordered that

• (i) The defendant as Executor under the Last Will and Testament of the deceased Deodath Harrygin Singh do transfer at the expense of the Deceased's Estate to the 2nd to 5th named claimants (as specified in the four unregistered deeds of gifts) within 21 days of the order of this Court the following properties namely:–

  • (a) ALL AND SINGULAR that certain piece or parcel of land situate at Hermitage Village Claxton Bay in the Ward of Pointe-a-Pierre in the Island of Trinidad comprising ONE LOT measuring 50 feet in frontage on the Public Road and 100 feet in depth being a portion of 6 Acres 1 Rood and 2 Perches and bounded on the North by lands of Gopiechand and Baskallia on the South by the Public Road on the East by lands of Trinidad Leasehold Limited and on the West by lands of Gopiechand and Baskallia (“the Home Property”) for Chris Harrygin Singh.

  • (b) ALL AND SINGULAR that certain piece or parcel of land situate in the Ward of Pointe-a-Pierre in the Island of Trinidad comprising FIVE TWO EIGHT POINT ONE SQUARE METRES more or less (being portion of the lands described in the first Parcel of the first Schedule to Deed registered as No. 25916 of 1999) and bounded on the North by Hermitage Road and partly by a Driveway on the South partly by a wall partly by a Drain Reserve and partly by a Ravine on the East partly by a Ravine and partly by a Driveway and on the West partly by Hermitage Road and partly by a wall or howsoever the same may be bounded abutted or described and which said piece or parcel of land is shown coloured pink on the plan annexed and marked “A” to the said Deed registered as No. 25196 of 1999 (“the Bar Property”) for Merisa Harrygin Singh.

  • (c) ALL AND SINGULAR that certain piece or parcel of land situate in the Ward of Pointe-a-Pierre in the Island of Trinidad comprising FIVE HUNDRED AND SEVEN POINT FIVE SQUARE METRES and bounded on the North partly by Lot No. 3 and partly by a Road Reserve seven point six two metres wide on the South partly by Hermitage Road and partly by Lot No. 1 on the East partly by a Road Reserve seven point six two metres wide and partly by Hermitage Road and on the West partly by Lot No. 1 and partly by Lot No. 3 which said piece or parcel of land is delineated and shown coloured pink as Lot No. 2 on the plan annexed to Deed registered as No. 2690 of 1996 (“the Parking Lot Property”) for Crystal Harrygin Singh.

  • (d) ALL AND SINGULAR that certain piece or parcel of land situate at Hermitage in the Ward of Pointe-a-Pierre in the Island of Trinidad comprising ONE LOT more or less measuring 50 feet in frontage on a trace and 100 feet in depth (being the South-Eastern portion of 6 Acres 1 Roods and 2 Perches of land firstly described in Deed registered as No 708 of 1928 less approximately 6 Lots sold by Deed registered as Nos. 5762 of 1946, 8643 OF 1950 and 2840 of 1954 and also 5853 of 1954 and bounded on the North and West by other portions of the said lands belonging to Gopiechan and Baskallia on the South by a portion of lands sold to Goberdhan and Bhagman and on the East by lands of Trinidad Leaseholds Limited forming a Trace or howsoever otherwise the same may be known bounded butted or described together with the buildings therein and the appurtenances thereto belonging (“the Back House Property”) for Trishana Harrygin Singh.

    In default of the defendant executing same, the Registrar of the Supreme Court is hereby empowered to execute the said conveyances on...