La Roche v La Roche
| Jurisdiction | Trinidad & Tobago |
| Judge | Rajkumar, J. |
| Judgment Date | 01 January 2012 |
| Neutral Citation | TT 2012 HC 3 |
| Docket Number | CV 534 of 2010 |
| Court | High Court (Trinidad and Tobago) |
| Date | 01 January 2012 |
High Court
Rajkumar, J.
CV 534 of 2010
Mr. Sagar instructed by Mr. Ahmed for the claimant.
Mr. Haynes for the defendant.
Will - Interpretation — Whether will created two life tenancies or one life interest.
By his Claim Form and Statement of Case the claimant claims that he is the freehold owner of a parcel or lot of land, situate at Covigne Road, Diego Martin, and (hereinafter called “the said property”).
The claimant claims to have become the freehold owner of the said Lands in the following manner.
Wilson Auguste (“Wilson”) by Deed Registered as No. 2291 of 1938 became the Owner of the said property.
Wilson died on the 17th October 1959, intestate, leaving his wife Ambrosine Agnes Auguste (“Ambrosine”) the only person entitled to share in his estate.
Ambrosine was granted Letters of Administration of Wilson's estate on the 1st April 1970.
On the 6th May 1971 Ambrosine made her last will (hereinafter called “the Will”). The claimant claims that she thereby left the said property for Ulwin Charles, her son, for life, and after his death to her niece Daphne La Roche (hereinafter called “Daphne”), and after her death to the claimant.
The material clause in Ambrosine's will is as follows:–
“I direct my Executor to give my Tapia mixed with Concrete House standing on 1 Lot of free-hold land at Covigne Road, Diego Martin, to ULWIN CHARLES, my son of Covigne Road, Diego Martin, for his use during his lifetime. Upon his death I will that my house and land be given to MRS. DAPHNE LA ROCHE. In the event of her death I will that this property be given to IAN LA ROCHE her son, of St. Lucien Road, Diego Martin.”
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(i) The Will is dated 6th May, 1971.
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(ii) Ambrosine died on the 21st January 1975.
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(iii) Ulwin Charles died on the 16th March 1990, and
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(iv) Daphne died on the 6th October 2006.
On the 16th May 2008 the claimant was granted Letters of Administration with will annexed of the Estate of Ambrosine.
On the 13th January 2009 the claimant, in his capacity as Legal Personal Representative of Ambrosine, was granted Letters of Administration de Bonis Non of the Estate of Wilson.
By Deed of Assent dated 1st May 2009 the claimant conveyed the said Lands to himself as Legal Personal Representative and Beneficiary under the Estate of Ambrosine.
By Deed of Rectification and Confirmation dated 27th January 2010 and registered as No. DE201000207880 the claimant purported to assent, convey and confirm the said property to himself absolutely. The defendant contends this deed is of no effect and seeks a declaration to this effect.
On the 11th February 2010 the claimant then brought this action against the defendant, his brother, alleging the defendant had been wrongfully allowed into the said Lands by Daphne, their mother, and wrongfully allowed to build a house on a part of the said lands and to occupy the same with his family.
The claimant claims possession of the said Lands and damages for trespass.
The defendant contends, via his defence and submissions that on the proper construction of the will of Ambrosine, upon which the claimant's alleged title is based, the said property never devolved to the claimant.
Accordingly the defendant denies that the claimant is the freehold owner of the said lands and contends that consequently he is not entitled to bring this action and to the reliefs claimed.
The defendant contends that on the clear and unambiguous provisions or terms of the will Ambrosine left a life interest in the said Lands to her son Ulwin Charles, and upon his death, the freehold interest in the property was to vest in her niece Daphne.
The will then went on to provide, by way of contingency that if Daphne were dead the property would go to the claimant.
In fact as Daphne was not dead when Ulwin's life interest was extinguished, the said property went to her absolutely, with nothing left to go to the claimant.
The defendant asks that the claimant's claim be dismissed and, by way of counterclaim, asks for a Declaration that the claimant's deed of Rectification and Confirmation Registered as No. 201000207880 in void and of no effect for the purpose of conveying any interest in the said lands to the claimant in his personal capacity and asks that the said Deed be removed from the Protocol of Deeds.
By way of Reply the claimant contends that the wording of Ambrosine's will is clear and unambiguous in that the said property was left to Ulwin Charles for life, and then to Daphne for her life, and after her death to the claimant.
That is — the will created two life interests, one in Ulwin, and then one in Daphne.
In addition to the claimant's reply that the will is clear and unambiguous, the claimant submits that other, extrinsic facts should be considered to ascertain Ambrosine's intention in the will.
At the trial the defendant elected not to reply on issues of limitation, adverse possession or equitable estoppel.
Both parties agreed that resolution of the primary issue required the meaning of the Ambrosine's will to be ascertained, and in particular:–
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a. Whether the will created two life tenancies, one in Ulwin Charles (also called “Ulwin”) and then one in Daphne,-(in which case the claimant would succeed as the property would have passed to him on Daphne's death), or
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b. Whether the will created one life interest in Ulwin Charles, with the freehold going to Daphne, (or to the claimant, but only if Daphne were already dead when Ulwin's life interest expired). In that case the defendant would succeed as the said property would be vested in the estate of Daphne and not solely in the claimant).
The construction given to this devise will determine the devolution of the property. If the devise vests in Daphne the fee simple then her subsequent dealing with the property will be as owner, (not merely life tenant), during her life time and will be sufficient to bind her estate on her death.
It is clear that the claimant had a close relationship with Ambrosine. He regarded her highly and was of the view that she felt the same way. This is natural and understandable he lived with her for 11 years. His assistance to her as pleaded was somewhat overstated, as revealed in cross examination. For example, as a 5 year old child his ability to assist would have been limited. This does not detract from the fact that I find him to have been fundamentally, an honest witness.
I equally find that that to be true of the defendant, and in fact all the witnesses who testified. Such differences as existed in their evidence were at heart a difference of perspective. Considering that much of it involved an assessment of human relationships between Ambrosine, the claimant, the defendant, and Daphne, it would have been surprising if such subjective evidence did not contain substantial differences of perspective.
I find that, ultimately, it makes no difference. I find that the relationship between Ambrosine and the claimant was good. The relationship between Ambrosine and her niece Daphne was also good. It must have been more than the simply casual one the claimant attempted to portray, as the will specifically ensured that the bequest to Daphne, whether absolute bequest of the fee simple, or life interest alone, took effect before any bequest to the claimant.
I find that there is nothing in the evidence to suggest that the relationship between Ambrosine and the claimant was such that she must have intended that he alone, and not the heirs of Daphne after her death, were to benefit.
I find that such evidence, in the context of this case is irrelevant. The will is clear and unambiguous in its terms as the testatrix knew how to, and did, create a life interest for Ulwin, and could have done the same easily by use of the same words, in relation to Daphne — if that were her intention.
I accept the submissions of the defendant, and find that, based upon
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a. the clear wording of the will and
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b. the presumption in the Wills Act- section 58.
The device has not been cut down by any words of limitation. (Daphne) was not granted a life interest as contended. Based on the clear and unambiguous provisions of the will of Ambrosine Auguste — it left the life interest in the property to her son Alwyn Charles, and, upon his death, the freehold interest in the property was to vest in Daphne La Roche absolutely.
I accept that the will did not give a life interest to Daphne la Roche.
I accept that on, the face of the will, it was clear that the testatrix knew how to create a life interest, and she did so within almost the same paragraph in respect of another party (that is her son Ulwin Charles).
I find that upon the death of Aldwin Charles, when Daphne La Roche was alive, by provisions of the will the entirety in the property passed to her, and when Daphne la Roche died on the 6th October 2006 the entirety of the beneficial interest in the property passed into her estate and not to the claimant solely, as alleged.
In those circumstances the claimant's claim is dismissed and the Counterclaim of the defendant is granted, in that:
1. A declaration is granted, that the deed of rectification and confirmation dated 27th January 2010 is void and of no effect for the purpose of assenting or conveying or confirming the freehold interest in the property to the claimant.
It is further ordered that —
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1. The Registrar General do remove the said deed from the Protocol of Deeds.
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2. The claimant do pay the defendant's costs of the claim and Counter Claim in the sum of $14,000.00.
(I decline to award separate costs on the claim and the Counter claim because the material in the claim and the Counter Claim is the same).
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