Re an Application by Mariane Vidal and Delbert Vidal for the Determination of Certain Questions and for Certain Reliefs Pursuant to Rule 67.4 of the Civil Procedure Rules

• Jurisdiction: Dominica
• Judge: Stephenson J.
• Judgment Date: 11 June 2020
• Judgment citation (vLex): [2020] ECSC J0611-2
• Docket Number: CASE NO. DOMHCV2018/0136
• Date: 11 June 2020
• Court: High Court (Dominica)

[2020] ECSC J0611-2

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CASE NO. DOMHCV2018/0136

Between:

In the Matter of the Administration of the Estate of Elias Vidal who Died on the 20 ^th Day of August 1988

In the Matter of an Application by Mariane Vidal and Delbert Vidal for the Determination of Certain Questions and for Certain Reliefs Pursuant to Rule 67.4 of the Civil Procedure Rules

Appearances:

Miss Cara Shillingford for the Applicant

RULING

ON WRITTEN SUBMISSIONS

Stephenson J.

1 Elias Vidal was the husband of Mariane Vidal and father of Delbert Vidal, the applicants in the case at bar. Elias Vidal (the deceased) died on the 20 ^th August 1988. The applicants were appointed personal representatives of the deceased's estate on the 9 ^th October 1989. A copy of the Letters of Administration was exhibited to the application before the Court.

2 The matter was commenced by Fixed Date Claim 1 and there is a statement of claim and affidavit in support of the claim with exhibits.

3 At the time of his death the deceased was recorded as the owner of the following pieces of land all of which were encumbered:

• I. 2 Acres of Land at Batalie Estate registered in Book A7 Folio 97 with a registered caveat on the property to Barclays Bank. This caveat was pursuant to a mortgage held by the said bank to secure the deceased's indebtedness;

• II. 1.75 acres of land at Batalie Estate registered in Book 16 Folio 59 with a registered caveat on the property to Barclays Bank. This caveat was pursuant to a mortgage held by the said bank to secure the deceased's indebtedness; and

• III. 6.025 acres of land at Syndicate registered in Book W8 Folio 20 with a registered caveat on the property to Barclays Bank. This caveat was pursuant to a mortgage held by the said bank to secure the deceased's indebtedness;

4 The applicants contended that at the date of his death the value of the deceased's estate was nil in that it was insolvent based on the fact that his funeral expenses and bona fide debts exceeded the value of his assets.

5 It is claimed and contended that the first named applicant, the widow of the deceased, since his death worked and utilised all of her earnings to pay off the debts owed by her deceased husband and that in doing so, she has purchased the assets of the estate and has gained a beneficial interest as owner of the said properties.

6 The first named applicant also submits that prior to her husband's death she worked alongside him and contributed to the purchase of the properties which were all registered in her deceased husband's name and based on that fact she also holds a beneficial interest in the estate based on a resulting and /or constructive trust in her favour.

7 The applicants have informed this court that it is their intentions as personal representatives to make transfer of various portions of land to the six children of the deceased and they have laid out in the fixed date claim the details of their intended transfers.

8 The applicants also inform the court of their intention to sell and or transfer the remaining properties registered in the deceased's name to the first named applicant.

9 The deceased died intestate and it is well established and understood under the laws of intestacy that the surviving wife receives a life interest and the estate of the intestate falls to be divided equally amongst his surviving children.

10 In the circumstances of this case the applicants seek the following orders from this court:

• 1. a determination as to who is the beneficial owner of the properties which form part of the estate of Elias Vidal;

• 2. a declaration that the first named applicant Mariane Vidal is the beneficial owner of all the aforementioned portions of land all registered in the name of Elias Vidal deceased; and

• 3. an order authorizing the applicants to distribute the aforementioned properties according to the wishes of the first named applicant as stated in the fixed date claim.

11 The first named applicant swore to an affidavit in support of the fixed date claim. In her affidavit she stated the facts supporting the application before the court, including the application for the court's approval of the intended distribution of the properties registered in her deceased husband's name. The pertinent facts being as follows, that:

• a. she is also known as Seraphine Vidal;

• b. she is the widow of Elias Vidal who died on the 20 ^th August 1988. A copy of the death certificate was attached;

• c. she and her son Delbert Vidal were appointed Personal Representatives of her husband's estate;

• d. there were six children of the marriage;

• e. her husband's estate was insolvent at the time of his death and described as ‘nil’ on the letters of Administration. The Letters of Administration were exhibited;

• f. prior to her husband's death she and her husband worked together on their farm and she also worked as a supervisor at DBMC and at the same time cooked, cleaned and took care of her family;

• g. prior to his death the deceased purchased three pieces of land which were all registered in his name. At the time of the registration she did not object to the properties being registered in her husband's name, as it was understood between them that the properties belonged to both of them. Copies of the certificates of title were all exhibited;

• h. she contributed through her hard work to the purchase of the properties;

• i. at the time of his death, her husband had significant debts and that Barclays Bank Plc, held mortgages on each of the properties as a result of their indebtedness to them. Copies of the declaration on oath of the value of her husband's estate and the caveats held by Barclays Bank Plc were all exhibited;

• j. after her husband's death she worked very hard to repay the debts as well as take care of the children of the family who were all young at the time ranging from the ages of 23 to 15;

• k. that she continued in her employment and worked the farm to make the payments, eventually leaving her employment at the DBMC to focus solely on agriculture;

• l. there came a time she was incapacitated and unable to work and during that period Barclays Bank Plc deducted the loan payments from her personal savings accounts to service the loans;

• m. she later refinanced the loans by taking a loan from the Salisbury Co-operative Credit Union, the proceeds of which paid off Barclays Bank Plc. Copies of letters received from Barclays Bank Plc proving repayment of the loans to that institution were exhibited in proof of the repayment;

• n. upon repayment of the loans to Barclays Bank Plc, the Certificates of title to the lands registered in the name of her husband were handed over to the Salisbury Co-operative Credit Union. A copy of the cover letter regarding this was exhibited;

• o. in 1993 she refinanced her loan at the Salisbury Co-operative Credit Union and also purchased another piece of agricultural land. This transaction was done in her second name that is in the name of Seraphine Vidal. A copy of this loan agreement was exhibited;

• p. in 1993 she left the shores of Dominica in search of greener pastures and managed to work and remit money to her children and to the Salisbury Co-operative Credit Union to pay off all her indebtedness which included the debt that existed at the time of her husband's death;

• q. having paid off all the debts that existed at the time of her husband's death, she feels that she is entitled to beneficial ownership of the properties especially in view of the fact that at the time of his death the estate was valued nil.

12 The first named applicant averred of her intention to jointly with her son Delbert who is the co-administrator of her husband's estate to transfer parcels of land to the children of the family and to transfer to her a parcel of land comprising 7,104 square feet of land located at Salisbury forming part of the property registered in Book A7 Folio 97. She also seeks the court's approval to do as she wishes in the future with the remaining portions of land.

13 Learned Counsel Miss Cara Shillingford was ordered to make submissions in support of her application. These submissions were filed on the 20 ^th April 2020. The application is unopposed. This is my ruling.

14 The issues to be considered and decided by the court are:

• 1. What is the first named applicant's interest in the properties which form part of her deceased husband's estate?

• 2. Does the first named applicant have a beneficial interest in the said estate by virtue of a constructive or resulting trust?

• 3. Does the law of unjust enrichment apply to the case at bar and if so what remedy can it provide the first named applicant?

• 4. Can the first named applicant transfer land in the estate to satisfy her interest if any? and

• 5. Whether or not the court will approve the applicants' proposed actions pursuant to Part 67.4(3) of CPR?

15 This application is quite correctly brought pursuant to Part 67 of the Civil Procedure Rules 2000 which provides for “ Administration Claims”. This section governs claims for “ the administration of the estate of a dead person… to determine any question or grant any relief relating to the administration of the estate of a dead person or the execution of trust” 2.

16 Part 67.4 (2) and (3) provide:

(2) The “ determination of any question” includes any question –

• (a) arising in the administration of the estate of a deceased person;

• (b) arising in the execution of, or under a trust;

• (c) as to the composition of any class of persons having a claim against –

  • (i) a beneficial interest in the estate of a deceased person;

  • (ii) any property subject to a trust; or

  • (iii) the estate of a deceased person; and

• (d) as to the rights or interests of a person claiming to be –

  • (i) a creditor of the estate of a deceased person;

  • (ii) beneficially entitled...