1
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2012-04737
BETWEEN
ANDY WONG KEE
Claimant/Ancillary Defendant
AND
GARY OBLINGTON Defendant
(Administrator of the Estate of Oliver Oblington (Deceased) limited to the purpose of this Claim)
AND
DAVE WONG KEE
1st Ancillary Claimant
AND
JOANNE HUNTE
2nd Ancillary Claimant
BEFORE THE HONOURABLE MADAME JUSTICE JOAN CHARLES
Appearances:
Claimant/Ancillary Defendant: Mr. Colin Selvon
Defendant: Appeared as himself
Ancillary Claimants: Mr. Jonathan Bhaggan
Date of Delivery: 6th November 2020
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JUDGMENT
[1] By Claim Form and Statement of Case filed on 19th November 2012, the
Claimant sought the following reliefs against the Defendant Gary
Oblington, the Administrator of the Estate of Oliver Oblington, deceased:
i. A declaration that the Claimant is entitled to possession of the
unexpired residue of the Statutory Lease from 1st June 1981 with
respect to One Lot of Land situate at Harper Lane, D’abadie in the
Ward of Arima together with the flat dwelling house standing
thereon on all and singular that certain piece or parcel of land
comprising five hundred and forty two point eight square meters
(542.8m²) situate at D’abadie in the ward of Arima bounded on the
north by Harper lane, on the south by lands of Violet Pickering, on
the east by a road reserve and on the west by lands of Oliver
Oblington leased to Trevor Wong Kee. (Parcel A).
ii. A declaration that the Claimant is entitled to possession of the
unexpired residue of the Statutory Lease from 1st June 1981, with
respect to one lot of land situate at Harper Lane, D’abadie in the
Ward of Arima together with a two storey dwelling house and a flat
dwelling house standing on all and singular that parcel of land
comprising six hundred and forty square metres (640m²) more or
less situate at Harper Lane D’abadie in the ward of Arima bounded
on the North by Harper Lane, on the South by lands of violet
Pickering, on the east by lands of Oliver Oblington leased to Trevor
Wong Kee, and on the west by lands of Edward Henry (Parcel B).
iii. Costs.
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STATEMENT OF CASE
[2] The Claimant pleaded that he was ‘the son, Administrator and sole
beneficiary of Trevor Wong Kee1 who died on the 3rd January 1997 (the
deceased). He averred that the deceased tenanted two parcels of land
from one Oliver Henry, the then owner. The first parcel, (Parcel A),
comprised the unexpired residue of the Statutory Lease from 1st June
1981 with respect to One Lot of land situate at Harper Lane, D’abadie in
the Ward of Arima together with the flat dwelling house standing thereon
on all and singular that certain piece or parcel of land comprising five
hundred and forty two point eight square meters (542.8m²) situate at
D’abadie in the ward of Arima bounded on the North by Harper Lane, on
the south by lands of Violet Pickering on the east by a road reserve and
on the west by lands of Oliver Oblington leased to Trevor Wong Kee; the
second the unexpired residue of the statutory lease from 1st June 1981,
with respect to one lot of land situate at Harper Land, D’abadie, in the
ward of Arima together with a two storey dwelling house and a flat
dwelling house standing on all and singular that parcel of land
comprising six hundred and forty square metres (640m²) more or less
situate at Harper Lane D’abadie in the ward of Arima bounded on the
north by Harper Lane, on the south by lands of Violet Pickering on the
east by lands of Oliver Oblington leased to Trevor Wong Kee, and on the
west by lands of Edward Henry, (Parcel B)(the said property).
[3] From or about 1966 the deceased began renting Parcel A from one Oliver
Henry, the then owner. In or about 1973, the deceased began renting
parcel B from the said Oliver Henry. There were two houses on this
parcel and the deceased took possession of it with Henry’s consent.
1 Paragraph 1 Statement of Case filed on 19th November 2012
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[4] Oliver Henry died in the late 1970s and the deceased continued in
occupation paying land and building taxes. As at 1981, the deceased
became a Statutory Tenant of Parcel B pursuant to the Land Tenant
Security of Tenure Act2 (the Act). He continued in occupation without
paying rent and without interruption until 1992, when Oliver Oblington
became owner of the larger parcel of land. Between 1990 to 1997, the
deceased, at considerable cost, renovated the houses on Parcel B and
rented them out to tenants.
[5] Oliver Oblington continued collecting land rent from the deceased for
Parcels A and B until after the death of the deceased in 1997, and
thereafter from one Gemma Gould, also called Gemma Joseph, the
mother of the Claimant. The tenants on Parcel B continued paying rent
to Gemma Gould until 2002 when Oliver Oblington took possession of
the two houses on Parcel B and demanded that the tenants pay rent to
him instead.
[6] The tenants complied with Oblington’s demand and paid the rents to
him. The Claimant and his mother were left in occupation of Parcel A
when Oblington seized the third house on Parcel B on the death of the
tenant who had occupied it. Oliver died in 2006 whereupon the
Defendant began collecting rent from one tenant who still occupied a
house on Parcel B.
[7] On the 27th May 2011, the Claimant, as Administrator of the Estate of
Trevor Wong Kee, gave written notice under Section 4(3) of the Land
Tenants Security of Tenure Act of his intention to renew the statutory
lease for Parcel B for thirty (30) years.
[8] The Defendant rented the second house to persons unknown even
though the estate of Oliver Oblington has not been administered.
Notwithstanding this fact, the Defendant went into occupation of Parcel
2 Chapter 59:54
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B to the exclusion of the Claimant, who, as Administrator and ‘sole
beneficiary’ of the estate of the deceased claims to be the Statutory
Tenant of same.
DEFENCE
[9] The Defendant admitted to having received the Notice sent by the
Claimant to him with respect to the renewal of the statutory tenancy.
[10] The Defendant denied, however that the deceased was a statutory tenant
of Parcel B since he was not in occupation as at June 1981. He however
admitted that the Claimant tenanted a house on Parcel A ‘since he know
himself in or about 1972’.3
[11] He averred that Misty Morris, one of the tenants on Parcel B, paid rent to
the Gemma Joseph until Oliver Oblington produced legal documents to
her evidencing his ownership of the land whereupon she then paid her
rent to him.
[12] The Defendant also denied that:
i. the deceased spent considerable sums of money repairing and/or
renovating the houses on Parcel B.
ii. the deceased was a Statutory Tenant of Parcel B.
iii. his predecessor Oliver Oblington collected rent from the deceased
for Parcels A and B until the latter’s death in 1997 and thereafter
from Gemma Gould until 2002.
iv. Oliver Oblington filed a complaint against the estate of Trevor
Wong Kee before the Rent Assessment board in 2002 to determine
3 Paragraph 20 of the Defence
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the standard rent payable for the premises comprising three
apartment buildings at Reid Lane, D’abadie.
v. the Claimant sent letters to him including pre-action protocol
letters regarding his claim herein.
THE ANCILLARY CLAIM
[13] The older siblings of the Claimant, Dave Wong Kee and Joanne Hunt filed
an Ancillary Claim against the Claimant by which they sought the
following Reliefs:
i. Damages including exemplary damages for breaches of duty of care
of the office of legal personal representative in the Estate of Trevor
Wong Kee.
ii. Damages for willfully refusing to distribute the Estate of Trevor
Wong Kee according to the law.
iii. Damages including exemplary damages for having obtained the
Grant of Letters of Administration by fraud and deceit.
iv. An Order that the Ancillary Defendant be made to furnish
accounts of his administration.
v. An Order that the Ancillary Claimants be jointly appointed by the
Court as Administrators of the Estate of Trevor Wong Kee in place
of the Ancillary Defendant on the basis that the Ancillary
Defendant obtained the grant through fraud and deception and
vi. A Declaration that the Ancillary Claimants were deprived of their
lawful share in the estate of the deceased.
vii. A Declaration that the ancillary Defendant willfully breached the
legal and equitable rights of the Ancillary Claimants.
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viii. A Declaration that the Ancillary Defendant’s share in the property
has been extinguished due to his tortious and fraudulent conduct.
ix. Interest
x. Costs.
[14] The Ancillary Claimants pleaded that they too are the lawful issue of the
deceased Trevor Wong Kee and siblings of the Ancillary Defendant, the
latter being their half brother by his mother Gemma Gould/Joseph. They
pleaded that they are entitled to a one third share in the estate of the
deceased as beneficiaries.
[15] They also pleaded that their mother and the deceased married under
Hindu rites, but said marriage was not registered.
[16] These Claimants pleaded that after the death of their father, they served
eviction notices on the tenants of the houses situate on Parcel B which
had been rented out by their father, however they did not proceed with
said eviction, instead allowing Gemma Joseph to collect the rent from
these tenants as income for herself and her minor son, the Ancillary
Defendant.
[17] Gemma Gould/Joseph, and later the Ancillary Defendant, excluded the
Ancillary Claimants from the said property and prevented them from
entering same since 1998. It was denied that the Ancillary Defendant or
his mother had conducted substantial repairs/renovations to the houses
on Parcel B.
[18] The Ancillary Claimants averred that:
a. the Ancillary Defendant obtained the Grant of Letters of
Administration of the deceased’s estate by fraud and deception in
an attempt to deprive the other beneficiaries of the estate of their
rightful share and interest.
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b. the Second Ancillary Claimant has been denied access to her
childhood home and has no place to stay in the jurisdiction of
Trinidad and Tobago.
c. The Ancillary Defendant has kept all profits obtained from renting
the deceased’s property and has never given account to the other
beneficiaries of Trevor Wong Kee.
d. The Ancillary Defendant has never attempted to distribute the
Estate of the deceased according to law when called upon to do so.
DEFENCE OF THE ANCILLARY DEFENDANT
[19] The Ancillary Defendant put the Ancillary Claimants to strict proof on
the issue of whether the second Ancillary Claimant is the daughter of the
deceased given the fact that his name is not included in her birth
certificate; he also put her to strict proof on her claim to an entitlement
of a one third share of his estate.
[20] The Ancillary Defendant also put the Ancillary Claimants to strict proof
on the issue of the marriage between the deceased and their mother on
the ground that the deceased, a Spiritual Baptist Leader, would not have
married under Hindu Rites.
[21] The Ancillary Defendant admitted that the Second Ancillary Claimant
spent time with the deceased, but asserted that they were limited to
holidays or weekends when she was a child.
[22] He admitted that he and his mother did not live with the deceased up to
the time of his death; he however asserted that Gemma Gould visited the
deceased every day during his illness and cared for him.
[23] The Ancillary Defendant denied that eviction notices were ever served on
the tenants by the Ancillary Claimants and stated that the deceased
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delegated to Gemma Joseph the responsibility of collecting rents before
he died. The attempt by the Ancillary Claimants to collect rent from these
tenants was rebuffed since the latter recognized Gemma Joseph as
landlord. He accordingly denied that the Ancillary Claimants ever allowed
Gemma to collect rents for their upkeep.
[24] It was denied that the Ancillary Claimants:
i. ever lived on the said property, having lived at Nelson Street, Port
of Spain
ii. effected repairs to the houses on the said premises
iii. the deceased ever acknowledged the Ancillary Claimants as his
children and indeed expressed doubts that they were.
[25] It was averred that there was little communication among the parties
about the settling of the estate of the deceased before/during his illness
or after his death. Further, no proof of the paternity of the deceased had
been furnished by the Ancillary Claimants up to the filing of this Claim.
[26] Andy Wong Kee pleaded that after his mother filed for Letters of
Administration of the Estate of the deceased the Ancillary Claimants filed
several caveats but failed to institute legal proceedings.
[27] He pleaded further that the Ancillary Claimant entered an appearance on
the 28th day of November 2001 but failed nevertheless to take any steps
for three (3) years to further the Probate proceedings started by him.
Thereafter the said Gemma Joseph instructed her then Attorney at Law
to file an Originating Summons seeking an Order from the Court with
respect to whether the said First Ancillary Claimant had any interest in
the estate of the deceased.
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[28] Despite being served with the Originating Summons aforesaid, the First
Ancillary Claimant failed to attend Court on the date fixed for the hearing
of the Originating Summons. On that day, 21st day of April 2004, the
Honourable Mr. Justice Myers ordered (the Order) that the First Ancillary
Claimant has shown insufficient interest in the estate of the deceased.
[29] The Ancillary Defendant stated further that Gemma Joseph withdrew her
application for Letters of Administration of the estate of the deceased
when he attained the age of eighteen. He then filed an application for
Letters of Administration of his father’s estate.
[30] The Ancillary Defendant pleaded that on the advice of his Attorney at
Law and on the basis of the Order, he made a Statutory Declaration as
part of his application for said Letters of Administration in which he
swore that he was the only person entitled to the estate of the deceased.
[31] The Ancillary Defendant pleaded in the alternative that should the
Ancillary Claimants be the legal issue of the deceased and his biological
children (which was not admitted) the Ancillary Claimants are barred by
their own laches from maintaining any claim against the Ancillary
Defendant and/or any claim of an interest in the estate of the deceased
who died in January of 1997. He averred that neither Ancillary Claimant
made any attempt to apply for Letters of Administration of the estate of
the deceased.
[32] He averred further that from 1997 to 2017, he and Gemma Gould have
spent approximately over one hundred thousand dollars ($100,000.00)
on the said property.
[33] The Ancillary Defendant denied that he had committed any of the
tortuous acts as alleged by the Ancillary Claimants.
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REPLY OF ANCILLARY CLAIMANTS
[34] The Second Ancillary Claimant relied upon the following facts in support
of her claim that she is the daughter of the deceased:
a. her father’s signature on her marriage certificate as father of the
bride
b. the fact that she lived with her paternal grandmother Pearl Wong
Kee at the Harper Lane/Reid Lane, D’abadie property until she was
seventeen years old.
c. from 1994 to 27 November 1996, she lived with the deceased at the
subject premises.
d. their attorney had given attorneys for Gemma Joseph proof of
paternity of the Ancillary Claimants. The Ancillary Claimants
denied that the Ancillary Defendant and his mother lived at the
subject property between 1994 and 1996 and asserted that they
only visited sporadically since Gemma Joseph was married to one
Mr. Joseph and lived with him and their infant son.
[35] The Claimants also denied that they were guilty of laches and pleaded
that since 1997 they had given instructions to their then attorneys to file
an Application for Letters of Administration of the Estate of the deceased
and signed a consent form relative to said application.
[36] The Ancillary Defendant’s assertion that he believed that he was the only
child of the deceased was denied on the ground that such belief could
not reasonably have been held by the Ancillary Defendant given his
interactions with the Ancillary Claimants over the years, correspondence
between his mother’s attorneys, his attorneys and the lawyers for the
Ancillary Claimants and caveats filed by the Ancillary Claimants against
the application for Letters of Administration filed by the Ancillary
Defendant’s mother.
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[37] It was also denied that the Ancillary Defendant spent one hundred
thousand dollars on the subject property as alleged since receipts for
only two thousand, one hundred and sixty two dollars and thirty nine
cents ($2,162.39) were annexed.
[38] At the trial of this claim, the parties agreed that the Court proceed with
the Ancillary Claim first and that the matter be determined on the basis
of legal submissions after partial cross-examination of the Ancillary
Claimant, Dave Wong Kee.
EVIDENCE
Gemma Gould
[39] Ms. Gemma Gould/Joseph testified to the following matters:
(i) she knew the deceased had two children who lived in Port of Spain4.
(ii) she knew that Joanne, the Second Ancillary Claimant was his daughter
and had spent time with the deceased as a child at the subject property5.
(iii) she claimed not to know the First Ancillary Claimant having only met
him at the deceased’s funeral for the first time.6
(iv) during the deceased’s illness Joanne visited; Dave also visited him once.7
(v) the Ancillary Claimants never told her that they were children of the
deceased – the latter’s relatives (sister and mother) told her about the
family.8
4 Para 10 of the Witness Statement of Gemma Gould filed 31 Jan 2019 5 Para 12 of the Witness Statement of Gemma Gould 6 Para 14 of the Witness Statement of Gemma Gould 7 Para 15 of the Witness Statement of Gemma Gould 8 Para 17 of the Witness Statement of Gemma Gould
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(vi) tenants revealed correspondence received from the Ancillary Defendant’s
lawyers advising of their intent to apply for Letters of Administration of
the deceased’s estate.9
(vii) that she received advice from Attorney Leandra Ramcharan that a joint
application for Letters of Administration be made by the Ancillary
Claimants as well as herself on behalf of the Ancillary Defendant; further
that she (Gemma) create a trust account to deposit monies pending the
Grant of Letters of Administration and distribution of the assets of the
estate in accordance with the Rules of Intestacy.10
(viii) that the First Ancillary Claimant filed a caveat sometime in 2001.11
(ix) in 2004 the Ancillary Defendant was 21 years old and therefore gained
the legal capacity to make the application for a Grant of Letters of
Administration for the estate of the deceased on his own behalf.12
Andy Wong Kee
[40] The Ancillary Defendant testified to the facts and matters hereunder:
(i) he read over his affidavit in support of his Application for Letters of
Administration which deposed that he was the only child of the
deceased. He signed the affidavit because at that time he had no
information or documentation in proof of the fact that Dave or
Joanne were in fact the children of the deceased. That his lawyer
advised him to sign in light of the Court Order.13
(ii) that the first time that he saw Dave’s birth certificate was when the
Ancillary Claim was filed nineteen(19) years after the deceased’s
9 Para 22 of the Witness Statement of Gemma Gould 10 Para 25 of the Witness Statement of Gemma Gould 11 Para 39 of the Witness Statement of Gemma Gould 12 Para 44 of the Witness Statement of Gemma Gould 13 Para 17 and 19 of the Witness Statement of the Ancillary Claimant of 31 Jan 2019
14
death.14 He supported the evidence of his mother with respect to
the history of the deceased’s entitlement to the said property and
the involvement of the Ancillary Claimants in challenging her
application for a Grant of Letters of Administration of the estate of
the deceased.
Dave Wong Kee – First Ancillary Claimant
[41] The Ancillary Claimant testified to the following facts and matters:
(i) Joanne was born on the 29th September 1959. He was born on the
20th February 1961. (Joanne was 24 years old when the Ancillary
Defendant was born, he was 22).15
(ii) Joanne lived on the subject property until she married one Trevor
Brace on the 2nd February 1980 in Barbados. The deceased signed
her marriage certificate.16
(iii) the deceased and Gemma Gould met in 1982. The latter served in
the deceased’s church.17
(iv) he met the Ancillary Defendant when the latter was two to three
years old in or about 1986. Andy Wong Kee lived with his mother
and the grandmother in Reid Lane, D’abadie.18
(v) he delivered money on behalf of the deceased to the Ancillary
Defendant’s mother for the maintenance of the said Ancillary
Defendant.19
14 Para 27 of the Witness Statement of Andy Wong Kee 15 Para 3 and 4 of the Witness Statement of Dave Wong Kee filed on the 5th November 2018 16 Para 17 of the Witness Statement of Dave Wong Kee 17 Para 19 of the Witness Statement of Dave Wong Kee 18 Para 20 of the Witness Statement of Dave Wong Kee 19 Para 21 of the Witness Statement of Dave Wong Kee
15
(vi) Joanne lived with her son and the deceased from 1995 to 1996.
She returned in 1997 on his death.20
(vii) Gemma Gould lived with Mr. Joseph (her husband) for five (5)
years prior to the death of the deceased. They married on 3rd
November 1993.21
ANALYSIS AND CONCLUSION
ISSUE A
Does the Ancillary Defendant hold the estate of the deceased as Trustee
on behalf of the beneficiaries of the said estate?
[42] It is important to begin this analysis by examining the Ancillary
Defendant’s role as legal Personal Representative of the estate of the
deceased and his legal responsibility, if any, to the Ancillary Claimants.
[43] The Succession Act (the Act)22 provides that the Legal Personal
Representative of a deceased person holds his real and personal estate as
trustee for the person(s) beneficially entitled to such estate.
[44] The Act also provides that the Legal Personal Representative shall
transfer/deliver the personal estate when called upon to do so by the
person(s) beneficially entitled to same.23 The Act further provides that the
estate of the deceased, after the payment of testamentary expenses and
debts must be distributed to those beneficially entitled or held on trust
20 Para 25 of the Witness Statement of Dave Wong Kee 21 Para 31 of the Witness Statement of Dave Wong Kee 22 Chapter 9:02 Section 36(3) (3) A grant of Probate or Letters of Administration, unless it contains an express limitation to the contrary, has effect as well over the real as over the personal estate and, subject to subsection (4), the personal representatives of a deceased person hold his real estate as trustees for the persons by law entitled thereto. 23 Section 12 of the Succession Act - 12. (1) Subject to subsection (2), all Wills, whenever made, are revoked by the marriage of the testator. (2) Marriage of the testator does not revoke a Will— (a) whenever made, if the marriage is in extremis and solemnized in accordance with the provisions of the Marriage Act; (b) made on or after 1st January 1928, and in exercise of a power of appointment, whereby the property appointed would not, in default of the appointment, pass to his intestate successors in accordance with Part VII or to his personal representative; (c) made on or after the said date and expressed to be in contemplation of marriage, whether so expressed in the Will or not; (d) made as a mutual Will by a survivor of two or more persons who made such Wills, where any such person other than the said survivor has since died without revoking his mutual Will.
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by the Legal Personal Representative for the benefit of persons who are
kin or next of kin of the deceased.24
[45] I therefore hold that the Ancillary Defendant is a Trustee of the estate of
the deceased and holds the estate of the said deceased as trustee for the
beneficiaries.
[46] Accordingly, the Ancillary Defendant’s duties as a trustee fall under the
provisions of the Trustee Ordinance and in particular Section 66(1) of
that Ordinance which provides that there is no period of limitation in
respect of fraud or a fraudulent breach of trust by a trustee.
ISSUE B
Did the Ancillary Defendant commit a Breach of Trust /Fiduciary Duty
and/or equitable fraud by deposing in his Application for Letters of
Administration that he was the sole issue of the deceased?
[47] In Halsbury’s Laws of England25, the Learned authors opine:
“It is the duty of personal representatives to hold an even hand
between all the beneficiaries of the estate. On the other hand they
must not unduly delay the payment or provision of any of the
legacies, …they ought not to sacrifice the interest of persons entitled
in remainder by realizing the estate for the benefit of a pecuniary
legatee at an inopportune time…”
[48] In Abacus Trust Co (Isle of Man) and another v Barr and others26,
Lightman J described how a Trustee should exercise his duties:
23. A devise of land, or any interest in land, whether beneficially or to any trustee, passes the fee simple absolute in possession, or other whole estate or interest which the testator had power to dispose of or create by Will in the land devised, unless a contrary intention appears from the Will.
25 Fourth Edition Reissue. Volume 17(2), Paragraph 439 26 [2003] EWHC 114
17
“16. The existence of the fiduciary duty on the part of trustees
governing the exercise of their fiduciary powers requires trustees to
inform themselves of the matters which are relevant to the decision
(see Scott v National Trust for Places of Historic Interest or Natural
Beauty [1998] 2 All ER 705, 717), and in arriving at their decisions
whether and how to exercise their discretionary powers to take into
account all relevant but no irrelevant factors: see Edge v Pensions
Ombudsman [2000] Ch 602, 627-628. The fiduciary duty requires
trustees to follow a correct procedure in the decision-making process:
see Etherton J in Hearn v Younger [2002] EWHC 963 (Ch) at [91]
citing Staughton LJ in Stannard v Fisons Pension Trust Ltd [1991]
PLR 225, 237, para 65. This duty lies at the heart of the rule, which
is directed at ensuring for the protection of the beneficiaries under
the trust that they are not prejudiced by any breach of such duty.”
[49] In Singh and Singh v Singh and Tai Chew27, Narine J. (as he was then)
stated the following in relation to fraud;
“The burden of proving fraud lies on the person who alleges it. It
must be distinctly alleged and distinctly proved. The standard of
proof is on a balance of probabilities. However, the standard is
flexible, and requires a degree of probability commensurate with the
seriousness of the occasion. The more serious the allegation the
more cogent is the evidence required to overcome the likelihood of
what is alleged.”
[50] Derry v Peek28 dealt with fraudulent misrepresentation in Contract and
Tort Law. However, I have concluded that there is a Fiduciary
relationship between the Legal Personal Representative and the lawful
beneficiaries; in the circumstances the principles applicable are those
which a court of equity would apply.
27 HCA 530 of 1991 at page 24 paragraph 2 28 1889 14 App Cas 337
18
[51] The Law on fraud has since developed the distinction between “Actual”
and “Constructive” Fraud.
In Mohammed v Mohammed29:
40. It is impossible to provide a complete definition of equitable
fraud. In equity the term “fraud” included not only actual fraud (in
the modern sense of fraudulent misrepresentation), but also certain
other conduct which fell below the standards demanded by equity
(and conventionally known as “constructive fraud”). Courts of Equity
did not stop at moral fraud in the ordinary sense but also took
account of any breach of the sort of obligation which is enforced by a
court that from the beginning regarded itself as a court of
conscience. The courts also refused to impose defined limits on
fraud, adhering to the view that fraud is as infinite as human
ingenuity.1 Viscount Haldane LC in Nocton v Lord Ashburton
considered the doctrine of fraud in equity2. His Lordship made it
clear that that an intention to cheat need not always be proved.
Rather the focus is not upon moral fraud in the ordinary sense of the
word, but upon breach of the sort of the obligation which is enforced
by a court [of equity] that from the beginning regarded itself as a
court of conscience:
…... when fraud is referred to in the wider sense in which the books
are full of the expression, used in Chancery in describing cases
which were within its exclusive jurisdiction, it is a mistake to
suppose that an actual intention to cheat must always be proved. A
man may misconceive the extent of the obligation which a Court of
Equity imposes on him. His fault is that he has violated, however
innocently because of his ignorance, an obligation which he must be
taken by the Court to have known, and his conduct in that sense
29 CV 2006-00045 at paragraph 40
19
has always been called fraudulent, even in such a case as a
technical fraud on a power. It was thus that the expression
"constructive fraud" came into existence. The trustee who purchases
the trust estate, the solicitor who makes a bargain with his client
that cannot stand, have all for several centuries run the risk of the
word fraudulent being applied to them. What it really means in this
connection is, not moral fraud in the ordinary sense, but breach of
the sort of obligation which is enforced by a court that from the
beginning regarded itself as a court of conscience.
[52] In Creditcore Ltd v King, Kingston and Ors30 Steyn LJ opined:
“It is not correct to say that a fraud case cannot properly be pleaded
on inferences. On the contrary, it is by the drawing of legitimate
inferences from circumstantial evidence that most fraud cases are
pleaded. That is also the way in which most fraud cases are proved
at trial.”
[53] The facts are that the Ancillary Claimants are the children of the
deceased, and much older than the Ancillary Defendant. They were 21
and 23 years old respectively in 1983. I accept their evidence that both
the Ancillary Defendant and his mother knew that they were the children
of the deceased at the time that Gemma Joseph filed her application for
Letters of Administration of the deceased’s estate in 1997 and when the
Ancillary Defendant filed his application in 2007. Gemma Joseph
testified that:
i. she knew that the deceased had two children31 and that the
second Ancillary Claimant had spent time with the deceased on the
subject property as a child32.
30[1992] Lexis Citation 1881
20
ii. that she met the First Ancillary Claimant at the deceased’s funeral
for the first time33.
iii. that during the deceased’s illness the Second Ancillary Claimant
visited him as did the First Ancillary Claimant on one occasion34.
[54] Further evidence of their knowledge of the paternal relationship between
the Ancillary Claimant and the deceased is demonstrated in 1997 when
the Ancillary Defendant’s mother was given a letter from attorneys
representing the Ancillary Claimants advising of the latters’ intention to
apply for Letters of Administration and Ms. Joseph’s advice from attorney
Leandra Ramcharan that a joint application for Letters of Administration
be filed, a trust account created to deposit monies for the estate pending
the Grant of Letters of Administration and the distribution of the estate
according to the Laws of Intestacy upon the receipt of such grant35.
[55] The caveats filed against the application would also have made clear that
the Ancillary Claimants were interested in the deceased’s estate – (to
their knowledge) as children of the deceased. I note that as far back as
1997 when the Ancillary Defendant’s mother had filed for a Grant of
Letters of Administration on his behalf, she deposed an affidavit that he
was the only person entitled to the deceased’s estate despite her
knowledge to the contrary. The Ancillary Defendant attained the age of
eighteen in 2001, the age of twenty one in 2004 and was twenty four
years old when he filed an application for Letters of Administration in
2007.
[56] It is his evidence that he was aware that Dave was attempting to stop his
mother’s application for Letters of Administration of his father’s estate
and had accompanied her on several occasions to her lawyer’s office in
31 Paragraph 10 of Witness Statement of Gemma Gould 32 Paragraph 12 of Witness Statement of Gemma Gould 33 Paragraph 14 of the Witness Statement of Gemma Gould 34 Paragraph 15 of the Witness Statement of Gemma Gould 35 Paragraph 25 of the Witness Statement of Gemma Gould
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connection with this application.36From the age of eighteen he assumed
responsibility for the Application for a grant of his father’s estate,
consulted his attorney on the matter and was fully appraised of the facts,
including the action taken by the Ancillary Claimants to stop his mother
proceeding with the grant. I did not accept his reasons for asserting that
he was the sole issue of the deceased and treating with the estate as
though he was in fact solely entitled thereto. Andy testified that he
asserted that he was sole issue of the deceased because the First
Defendant had failed to respond to a Summons to declare his interest in
the estate and his lawyer advised him that in the circumstances he could
depose that he was the sole issue of the deceased and therefore alone
entitled to his estate. I am of the view that given the history and
relationship among the parties that the Ancillary Defendant, a young
man in his mid-twenties with full knowledge of the facts, deliberately
deposed to a falsehood in his affidavit in support of his application for
Letters of Administration. His failure to inform the Ancillary Claimants
that he had filed his application, and the subsequent failure to distribute
the estate according to the rules of intestacy support my view that his
actions were deliberate and done with the intention of excluding the
Ancillary Claimants from a share in the estate.
[57] I have already held that the Claimant was a trustee of the estate of the
deceased, he was therefore legally obliged to distribute the deceased’s
estate upon receipt of the grant – this he has clearly failed and refused to
do. He has therefore breached the terms of the trust created by the Act.
[58] On the issue of fraud, I hold that the actions of the Ancillary Defendant
amount to equitable fraud or constructive fraud since they meet the
requirements of this type of fraud as outlined in the case of Nocton v
Lord Ashburton37.
36 Paragrahp 13 of the Witness Statement of Andy Wong Kee 37 HL 1914 AC 932
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[59] The obligation of the Ancillary Defendant as trustee of the estate of the
deceased is an equitable one and enforceable by a Court of equity. I hold
that in the circumstances it would be unconscionable for the Ancillary
Defendant to deprive the Ancillary Claimants of their share of the estate.
The fraudulent act of deliberately asserting that he was the sole issue of
the deceased when he knew this was a falsehood, failing to advise the
Ancillary Claimants of his application, acting in breach of trust by failing
to distribute the deceased’s estate as he was required to by the Act
amounted to equitable fraud on the part of the Ancillary Defendant.
LACHES
ISSUE C
Did the Ancilliary Claimants fail to prosecute their claim without undue
delay and are thereby disentitled to relief under the Equitable Doctrine
of Laches?
[60] In Hugh Lee King vs Leo Martinez and Veronica Lambert38 Madam
Justice Judith Jones (as she was then) examined the doctrine of laches
and the issue of acquiescence.
The Learned Trial Judge opined39: stated of her Judgment as follows:
“In equity a claimant is required to prosecute his claim without
undue delay. The defence of laches arises if two conditions are
satisfied: first, there must be an unreasonable delay on the part of
the claimant in the commencement of the proceedings and, secondly,
in view of the nature and consequences of that delay it must be
unjust in all the circumstances to grant the specific relief in question
whether absolutely or on appropriate terms or conditions. The
38 CV2012-03303 39 at page 12 CV2012-03303
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question of delay therefore is but a part of one of the conditions that
must be satisfied to establish laches.
The learned authors of Halsbury’s Laws of England opined40:
“In determining whether there has been such delay as to amount to
laches, the chief points to be considered are (1) acquiescence on the
plaintiff's part, and (2) any change of position that has occurred on
the defendant’s part. Acquiescence in this sense does not mean
standing by while the violation of a right is in progress, but assent
after the violation has been completed and the plaintiff has become
aware of it. It is unjust to give the plaintiff the remedy where, by his
conduct, he has done that which might fairly be regarded as
equivalent to a waiver of it; or where, by his conduct and neglect,
though not waiving the remedy, he has put the other party in a
position in which it would not be reasonable to place him if the
remedy were afterwards to be asserted. In such cases lapse of time
and delay are most material. Upon these considerations rest the
doctrine of laches.”
The authors of Spry Principles of Equitable Remedies 41 opined:
“the classic case of laches arises when, during unreasonable delay
by the plaintiff, the defendant, either expends money or incurs an
additional liability…….”
[61] The Ancillary Defendant submitted that no relief/remedy can or should
be granted the Ancillary Claimants since they failed to prosecute their
claim without undue delay, having filed some nineteen (19) years after
the death of the deceased and six years after the Grant of Letters of
Administration to the Ancillary Defendant. It was also submitted that it
would be unconscionable to grant the reliefs sought by the Ancillary
40 4th Edition Volume 16 para 1477 41 8th Edition at page 431
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Claimants since they knew that the Ancillary Defendant and his mother
had expended some one hundred and fifty thousand dollars on the
property to improve it without assisting or contributing in any way. It
was also submitted that no explanation has been proffered by the
Ancillary Claimants for failing to take any step in the matter after
entering an appearance to the warning issued by attorney for the
Ancillary Defendant in 2001.
[62] The Ancillary Claimants on the other hand, submitted that time only
began to run when in 2016 the Ancillary Claimants obtained office copies
of the affidavit filed by the Claimant in the Application for the grant of
Letters of Administration.
[63] Firstly, I note that the Ancillary Defendant has not established that it
would be unconscionable for the Ancillary Claimants to be granted relief
due to unreasonable delay on their part. Andy Wong Kee has failed to
adduce evidence that he and his mother expended one hundred and fifty
thousand dollars in repair on the said property. As noted above42, the
receipts only establish that a little over two thousand dollars was spent
by them in repairs. Indeed, what the evidence has shown, to the
contrary, is that the Ancillary Defendant has been in sole receipt of the
rental income from the said property.
[64] I note that Section 66(i) of the Trustee Ordinance provides that there is
no limitation period where the trustee has acted fraudulently with
respect to trust property. In this case, I have already held that the
Ancillary Defendant committed equitable fraud by his false statement on
oath that he was the sole issue of the deceased and his failure to
distribute the estate of the deceased which he held on trust for the
beneficiaries of the said estate, which included the Ancillary Claimants.
42 Para 37 above
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[65] In any event, on the facts of this case, the claim was brought within four
years of the discovery of the Ancillary Defendant’s fraudulent act. It was
the Defendant’s failure to notify the Ancillary Claimants of his
application for the Grant of Letters of Administration43 which led to the
late discovery of his breach of trust and equitable fraud by the Ancillary
Defendant.
[66] I also took into account the fact that the Ancillary Defendant’s false
statement amounted to a breach of Sections 4 and 5 of the Perjury Act
Chapter 11:1444. I am of the view the well known maxim of “he who
comes to equity must come with clean hands” applies here. The Ancillary
Defendant having committed constructive fraud and a breach of trust
cannot avail himself of the Doctrine of Laches given his unconscionable
conduct. In the circumstances I hold that this ground must fail.
[67] One of the Reliefs sought by the Ancillary Claimants is for the removal of
the Ancillary Defendant as Legal Personal Representative of the estate of
the deceased by reason of his fraudulent acts. The Court has an inherent
jurisdiction to remove and replace trustees where such trustees have
committed a breach of trust or other misconduct relating to their duties
as trustees. Lord Blackburn in the case of Letterstedt v Broers45 stated
the principle thus:
“But in cases of positive misconduct, courts of equity have no
difficulty in interposing to remove trustees who have abused their
trust; it is not indeed every mistake or neglect of duty; or inaccuracy
43 Rule 32 of the Non Contentious Business Rules, Wills and Probate Act Chap 9:03 - 32. An applicant for a grant of administration with the Will annexed or for administration shall cite all persons having a prior right to apply for a grant of probate or administration, as the case may be, and who have not renounced the right to the grant. The Court may grant administration to the applicant in the event of the persons having such prior right failing to appear and to accept the grant after having been cited to do so. 44 (4) A statement made by a person lawfully sworn in Trinidad and Tobago for the purposes of a judicial proceeding— (a) in another Commonwealth country; (b) in a tribunal of a Commonwealth country lawfully constituted in any place by sea or land outside the Commonwealth; or (c) in a tribunal of any foreign state, shall, for the purposes of this section, be treated as a statement made in a judicial proceeding in Trinidad and Tobago. (5) The question whether a statement on which perjury is assigned was material is a question of law to be determined by the Court of trial. 5. Any person who— (a) being required or authorised by law to make any statement on oath for any purpose, and being lawfully sworn (otherwise than in a judicial proceeding) wilfully makes a statement which is material for that purpose and which he knows to be false or does not believe to be true; or (b) wilfully uses any false affidavit for the purposes of the Bills of Sale Act, is liable, on conviction on indictment, to a fine and to imprisonment for seven years. 45 (1884) 9 App. Cas. 371
26
of conduct of trustees, which will induce courts of equity to adopt
such a course. But the acts or omissions must be such as to
endanger the trust property or to show a want of honesty, or a want
of proper capacity to execute the duties, or a want of reasonable
fidelity."
It seems to their Lordships that the jurisdiction which a court of
equity has no difficulty in exercising… is merely ancillary to its
principal duty - to see that the trusts are properly executed…
Therefore, though it should appear that the charges of misconduct
were either not made out, or were greatly exaggerated, so that the
trustee was justified in resisting them… yet, if satisfied that the
continuance of the trustee would prevent the trusts being properly
executed, the trustee might be removed. It must always be borne in
mind that trustees exist for the benefit of those to whom the creator
of the trust has given the trust estate.
…In exercising so delicate a jurisdiction as that of removing trustees,
their Lordships do not venture to lay down any general rule beyond
the very broad principle above enunciated, that their main guide
must be the welfare of the beneficiaries.”
[68] Having found that the Claimant was in breach of his fiduciary duty as
trustee of the estate of the deceased and misconducted himself as trustee
by falsely deposing that he was the sole issue of the deceased and failing
to distribute the estate as he was obliged to do I have come to the
conclusion that in the interest of the welfare of the Ancillary Claimants,
the Ancillary Defendant must be removed as Legal Personal
Representative of the estate of the deceased. He has demonstrated on the
facts of this case a deliberate intention to deprive his siblings the
Ancillary Claimants of their share of the estate of their father and has
kept all the income from that estate for more than ten years for himself.
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[69] I therefore give Judgment for the Ancillary Claimants against the
Ancillary Defendant and make the following Orders:
i. That the Ancillary Defendant furnish accounts of his administration of
the estate of the deceased to the Ancillary Claimants.
ii. That the Ancillary Claimants are jointly appointed as Administrators of
the Estate of Trevor Wong Kee in place of the Ancillary Defendant.
I also grant the following:
iii. A Declaration that the Ancillary Claimants were deprived of their lawful
share in the estate of the deceased.
iv. A Declaration that the Ancillary Defendant willfully breached the legal
and equitable rights of the Ancillary Claimants.
iv. That the Ancillary Defendant do pay to the Ancillary Claimants damages
in the sum of forty thousand dollars ($40,000.00) for willfully refusing to
distribute the Estate of Trevor Wong Kee according to law.
v. A Declaration that the Ancillary Defendant obtained the grant of Letters
of Administration of the Estate of the deceased by fraud.
It is further ordered that:
vi. The Ancillary Defendant do pay to the Ancillary Claimants the costs of
the Ancillary Claim to be assessed by the Registrar in default of
agreement.
Joan Charles
Judge