Re Hollis, deceased; Hollis v Hollis

• Jurisdiction: Bermuda
• Judgment Date: 27 May 2011
• Date: 27 May 2011
• Docket Number: Civil Jurisdiction 2004 No. 185
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2004 No. 185

In the Estate of Barbara Eloise Hollis, deceased

BETWEEN:

Winslow Hollis

Plaintiff

and

Lisa Hollis (as Administrator of the Estate of Barbara Eloise Hollis)

Defendant

Mr R DeSilva for the Plaintiff

Ms K Lomas for the Defendant

The following cases were referred to in the judgment:

In re Lucking's Will TrustWLR [1968] 1 WLR 866

Speight v GrantELR (1883) 22 ChD 727

Regal (Hastings) Ltd v GulliverELR [1967] 2 AC 134

Abstract:

Beneficiary of intestate - Administrator of estate failed to properly administer estate - Sole asset is property - Breach of duty - Failure to maintain - Failure to pay rent - Accounts for the estate - Costs

JUDGMENT of Simmons, J

1. The Plaintiff commenced this action by way of originating summons dated the 8th day of June 2004. In it he claims to be a beneficiary of the Estate of Barbara Eloise Hollis (the "Estate") under the laws of intestacy. The basis of his claim is that the defendant, as administrator of the Estate has failed to administer the Estate properly or at all. Accordingly the Plaintiff seeks the following relief pursuant to Order 85 rule 2(3) (a) and (e) of the rules of the Supreme Court 1985:

i. The Defendant as Administrator be ordered to furnish particulars of investments and accounts of the Estate;

ii. An order that the Defendant collect in and distribute the assets of the Estate according to the laws of intestacy;

iii. If and so far as may be necessary, administration of the Estate by the Court;

iv. Costs.

History

2. The only asset remaining in the Estate consists of a property situate at 41 Wellington Slip Road in St. Georges parish. This property was the family home of the parties' grandfather Charles Hilliard Williams. He died having willed the property to the parties mother Barbara Eloise Hollis reserving to his wife, the parties' grandmother, Ottis Olivia Williams a life interest. Barbara Eloise Hollis predeceased Ottis Olivia Williams.

3. Barbara Eloise Hollis died intestate on 9th March 1981. The Plaintiff, the Defendant and their two other siblings each became entitled to an equal undivided interest in the Estate property upon the death of Ottis Olivia Williams on the 3rd of April 1994. The Defendant with the agreement of her siblings was granted letters of Administration of the Estate of Barbara Eloise Hollis on the 31st May 1999.

4. The Defendant is involved in two other court matters. The Defendant's involvement was predicated upon her belief that the Estate comprises or has an interest in a waterside lot of land adjacent to the Estate property. The Defendant's involvement in both those cases is relevant to claims made by the Plaintiff. The Defendant asserts that she acted in her capacity as administrator of the subject Estate in both matters,

and as a consequence had to borrow money to retain lawyers to represent the Estate in both instances.

5. In the first matter the Defendant is the defendant in an action brought by the plaintiff Alexander Winston Joseph Anglin Swan. In it the plaintiff Mr. Swan seeks to establish that he is in possession of and has been granted title to the water side lot of land adjacent to the subject Estate property in fee simple. He also claims a right of way over the subject Estate property to the waterside lot. An injunction was granted in that case preventing Miss Hollis from blocking the said right of way. A strike out application by Miss Hollis was unsuccessful and dismissed by the court. The substantive matter has not yet been fully determined.

6. In the second action Miss Hollis sought leave to commence judicial review proceedings against the Development Applications Board ("the Board") and the above referred Alexander Winston Joseph Anglin Swan. The application was essentially to have quashed the decision of the Board in granting Mr Swan permission for the construction of a dwelling on the above mentioned water side lot adjacent to the subject Estate property. Leave was granted to the Defendant on an ex-parte basis, however it was subsequently set aside upon arguments on an inter partes hearing. No further action was taken in that matter. In both cases the Defendant was represented by counsel.

7. The Originating Summons in the instant matter for various reasons began by fits and starts; it lay fallow for some periods and in fact for one period in excess of one year. Both the Plaintiff and the Defendant have filed affidavits herein. On 16th September and on the 21st October 2004 the court directed the Defendant to file proof of the status of the two above referred court actions. On the 2nd of March 2006 she was ordered to produce proof of the rental of the lower apartment to a named individual, as well as proof of the purchase of various materials of repairs to the premises. By all appearances the Defendant complied with that aspect of the order producing the tenancy agreement and various receipts as ordered.

8. The Defendant was also ordered to facilitate an inspection of the premises by the Plaintiff's attorneys at which time the attorney would be at liberty to photograph the lower apartment and the exterior of the premises. The Plaintiff's attorney was able to attend at the subject premises and inspect and photograph the premises as ordered. He relied upon those photographs in his cross-examination of the Defendant.

9. By summons dated the 17th February 2006 the Plaintiff sought an order permitting him to reside in the lower apartment of the subject premises. The Plaintiff cited financial hardship and having nowhere else to reside as his main reasons for wanting access to the lower level apartment of the subject premises for his occupancy. The hearing of that summons was adjourned on two occasions including the 16th March hearing date which was vacated by written request of the Defendant who cited work commitments.

10. That matter never came back before the court for consideration. The relevance of that issue is that the Defendant and the Plaintiff have an unhappy history of not getting along which is documented in the court file by a letter dated 1999 exhibit to the Defendant's affidavit of the 28th June 2004.

11. Also exhibited to that affidavit is a copy of a restraining order that the Defendant had obtained against her brother, the Plaintiff for threats of violence he uttered against her. The Defendant claims that she had cause to seek the help of the police in at least two instances where the Plaintiff came onto the subject premises entered the upper unit and either unlawfully assaulted the Defendant and or did damage to the upper apartment where the Defendant was residing.

12. It is against this back drop that the...