Re Tucker; Wilson v Jones

• Jurisdiction: Bermuda
• Judgment Date: 25 February 2011
• Date: 25 February 2011
• Docket Number: Civil Jurisdiction 2010 No. 48
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No. 48

In the Matter of the Estate of Bruce Montgomery Tucker (Deceased)

BETWEEN:

Jahmeekah Ifarar Wilson

First Plaintiff

And

Jahmon Fari Wilson

Second Plaintiff

and

Calvin LeRoy Jones

Defendant

Mr P Harshaw for the Plaintiffs

Mr K James for the Defendant

The following cases were referred to in the judgment:

Re Braswell [2001] Bda LR 41

Perinchief v RaynorBDLR [1995] Bda LR 19

Darrell v Peets-SwanBDLR [2008] Bda LR 50

Richardson v TuzoBDLR [2007] Bda LR 1

Hodgson v MarksUNK [1971] 2 All ER 684

Abstract:

Dispute over estate - Intestacy - Equitable interest in property - Resulting trust

JUDGMENT of Kawaley, J

Introductory

1. The Plaintiffs' claim reflects the theme of an old blues song:

"Them that's got shall get

Them that's not shall lose

So the Bible said and it still is news

Mama may have, papa may have

But God bless the child that's got his own

That's got his own…"

2. The Plaintiffs (born in 1984 and 1983, respectively) are the children of the late Bruce Montgomery Tucker and the Defendant is their paternal grandfather. It is common ground that the Plaintiffs together and the Defendant are each entitled to own legally 50% as tenants in common of a property at 2 Industrial Park Southampton ("the Property"). The Plaintiffs seek a declaration that the Defendant is only the legal owner of his share and that he holds this interest on trust for them, in accordance with the wishes of their late father and grandmother communicated to him orally prior to the date when he acquired his share of the Property.

3. The Plaintiffs contend that the Defendant's name was only placed on the deeds to the Property before their father's untimely death to protect it from dissipation at a time when they were minors. The Defendant contends that this claim is wholly invented and that his son intended to convey both legal and beneficial interest in 50% of the Property out of the natural affection he had for his father. The Plaintiffs themselves were barely teenagers when the relevant transfer took place in 1997, and rely wholly on the evidence of three witnesses who were adults at the time: an aunt, an uncle and a family friend. Their case stands or falls on whether or not the Court accepts these witnesses as essentially truthful or, as the Defendant contends, deliberate liars.

4. At the beginning of the trial. I ruled that the Plaintiffs were entitled, in effect, to set aside the Order dated November 4, 2010 made in their absence striking out their

original Summons seeking out to strike-out two Witness Statements filed on behalf of the Defendant. I rejected the renewed application in respect of one Witness Statement and acceded to it in relation to the Witness Statement of the Plaintiffs' former lawyer, reserving the issue of costs.

5. In addition to recording the Court's findings in relation the substantive claim, I also set out below the reasons why I refused to admit the evidence of the Plaintiffs' former lawyer, Edward King. The Defendant sought to call Mr. King as a witness with a view to discrediting the 1st Plaintiff's account of certain communications with him which account was set out in an Affidavit sworn in support of an interim injunction application at the beginning of the present proceedings.

Factual findings: uncontroversial facts

6. The Defendant formed an extra-marital relationship with the deceased's mother, Dorothy Viola Tucker in or about 1961 as a result of which the Plaintiffs' father was born. At his birth, she owned the Property subject to a mortgage. The 1st Plaintiff was born on February 27, 1984; the 2nd Plaintiff, her older brother, was born on March 2, 1983. Before they reached their teen years, in or about 1994, their mother moved out of their lives and they were primarily cared for by their father and members of his family, including his mother. After the deceased's mother became ill in 1995, she voluntarily conveyed the Property to her herself and her son as joint tenants on April 17, 1995. She died on April 7, 1996, and her son became sole owner of the Property. On December 12, 1997, the deceased voluntarily conveyed the Property to himself and his father, the Defendant, as tenants in common. At all material times the deceased suffered from drug addiction. He died intestate on or about January 17, 2004.

7. There is no documentary support for the trust which forms the basis of the Plaintiffs' claim, either in the conveyancing file documents produced or otherwise.

The Plaintiffs' case

8. The Plaintiffs personally gave no evidence which directly supported their claim.

9. The first significant witness was Mr. Soares, a mature man who says he made the acquaintance of the Plaintiffs around 2001-2002. In or about the summer of 2002, he gave the 1st Plaintiff a lift home at her request and she introduced him to her mother. Mr. Soares was initially interested in renovating the house and was shocked at its state. He had previously owned two disaster recovery companies in California which returned damaged properties to a habitable condition. He did some painting and cleaning up but seemingly was never formally employed to do any work. He spoke to the Plaintiffs' father and subsequently the Defendant. The deceased told him that the Property was in his father's name because he was concerned that creditors would take it. When he spoke to the Defendant, he recalled that the Defendant said the Property had his name on the deeds because his son owed him money in respect of health expenses incurred when the deceased was a child. Mr. Soares was bemused by this. The childhood expenditure was mentioned, but not in connection with the voluntary conveyance in his Witness Statement. When it was suggested that the witness would not likely have been told by the deceased that his mother intended to give the Property to the Plaintiffs when they reached adulthood, Mr. Soares insisted that the deceased spoke freely with him and said surprising things. One example was he told the witness he would discover how hard it was to be old, when it was obvious that Soares was older than the deceased.

10. In his cross-examination of the 2nd Plaintiff, Mr. James elicited the fact that Mr. Soares' main relationship was with his sister rather than himself. He testified that he helped her with "certain stuff …personal stuff". Mr. Soares gave the impression that he was interested in the welfare of the family as a whole, without denying that his initial point of contact the 1st Plaintiff, who he encountered packing groceries at a supermarket and once gave a lift home to on his bike at her request. Mr. James never positively put to Mr. Soares that he had any specific motive for giving perjured evidence, be it a commercial interest in the Property or an intimate personal interest in the 1^st Plaintiff.

She appeared to be sufficiently attractive and personable to inspire a well meaning stranger who became aware of her difficult circumstances to seek to assist her and her family in any way he could. It was clearly implied by the Defendant's counsel that Mr. Soares from the first had a more than philanthropic interest in the 1st Plaintiff. Mr. Soares rebuffed the somewhat incredible suggestion that, when he first met the Defendant in the summer of 2002, he proposed buying out the Defendant's interest for the benefit of the latter's then 18 year-old granddaughter, in the mildest possible manner, simply indicating that he "did not remember that part" of their discussions. He appeared completely oblivious to counsel's insinuations.

11. The Defendant called him a liar, yet Mr. Soares appeared throughout his testimony to be a very down to earth and uncomplicated person who freely admitted being sympathetic to the Plaintiffs' cause based on a chance exposure to their impoverished living conditions several years ago. The Court was given no positive reason to find him to be a perjurer.

12. The Plaintiffs' next witness and the most important one overall was Mrs. Roslyn Anderson, their aunt and elder...