(1) Richard Anthony Hayward v (1) Striker Trustees Ltd

• Jurisdiction: Bahamas
• Judge: Charles J
• Judgment Date: 07 February 2020
• Court: Supreme Court (Bahamas)
• Docket Number: 2010/CLE/gen/01137
• Date: 07 February 2020

COMMONWEALTH OF THE BAHAMAS

Before:

The Honourable Madam Justice Indra H. Charles

2010/CLE/gen/01137

Between

(1) Richard Anthony Hayward

(2) Susan Jane Heath

(3) Giles Edward Hayward

(4) Rupert Charles Hayward

(5) Francesca Rose Chelsom

(6) Emma Louise Cameron

(7) Alexander James Wroughton Heath

(8) Nicholas Charles Edwards Heath

Plaintiffs

and

(1) Striker Trustees Limited

(2) Prometheus Services Limited

(3) Richard W Devries

(4) Keith Griffiths

(5) Sir Jack Arnold Hayward (died 13 January 2015)

(6) Lady Jean Mary Hayward (died 12 May 2015)

(7) Frederick Arthur Leblanc Cameron (a minor) by Preston Rabl his Guardian ad Litem

(8) Ian Barry

(9) Patricia Ruth Bloom

(10) Amy Bloom Clough

(11) Trevor Bethel

(12) Jonathan Michael Hayward

Defendants

Appearances:

Mr. Brian Simms QC with him Mr. Christopher Jenkins and Mr. Ra'Monne Gardiner of Lennox Paton for the Judicial Trustee

Mr. Lawrence Cohen QC with him Mr. Ferron Bethell QC and Ms. Camille Cleare of Harry B. Sands for the Plaintiffs

Mr. John Wilson QC and Mrs. Erin Hill of McKinney Bancroft & Hughes for the 1 ^st Defendant

Mr. Luther McDonald and Ms. Keri Sherman of Alexiou Knowles for the 7 ^th Defendant

No appearance of the other Defendants and/or their Counsel

Also present Ms. Meryl Glinton of Maurice O. Glinton & Co. (former Counsel) for the late 11 ^th Defendant

Trust — Discretionary trust — Personal Representatives — Discretionary beneficiary has no legal or equitable interest in trust — Locus Standi of Personal Representative (if and when appointed) — Judicial Trustee Rules, Rule 22(1) and RSC O. 15 rr. 7–10

Julius Trevor Bethel (“the Deceased”) was one of the beneficiaries of the 1993 Settlement (“a discretionary trust”) of the late Sir Jack Hayward. The Deceased died tragically on 17 January 2020. At the time of his death, there were some applications pending before the Court including (i) the Deceased' Summons to remove the Judicial Trustee; (ii) the Deceased' Summons to set aside a Directions Order made on 18 March 2019 by another judge (“JT's Directions Order”); (iii) the Judicial Trustee's Summons to strike out certain paragraphs of an affidavit of the Deceased and (iv) the Judicial Trustee's Summons seeking ratification or remaking of the Judicial Trustee's Directions Order.

At a hearing on 7 February 2020, Counsel for the Deceased, advised the Court that the Deceased did not appear to have left a Last Will and Testament and no personal representative had yet been appointed. She was unable to confirm as to when this may occur. However, she asserted that the Deceased' applications to challenge the Judicial Trustee's appointment and the JT Directions Order would not fall away simply by reason of his death. The Judicial Trustee and the Plaintiffs challenged Counsel for the Deceased' assertions.

These assertions raised an issue which makes it appropriate for me to consider whether the Estate of the Deceased could have any further interest in the trust or in its administration. A further issue arises as to whether Counsel for the Deceased is in court without a client and without instruction.

HELD: Granting the Declaration sought by the Judicial Trustee and the Plaintiffs that the Personal Representatives of the Deceased (if and when appointed) could not have locus standi to continue to prosecute either of the Deceased' two summonses.

• 1. The Deceased' interest in the trust estate was extinguished on his death. Therefore, his estate would have no standing to advance the various applications that were pending at the time of his death.

• 2. The 1993 Settlement is a discretionary trust. The Deceased, being a beneficiary of the Settlement, was a mere object of that trust. The Deed of Inclusion did not make any provision for the transmission of his interest to any spouse, child or remoter issue, so there can be no issue of any interest in the Settlement surviving his death.

• 3. A beneficiary under a discretionary trust has a right to be considered as a potential recipient of benefit by the trustees. But that right is not a proprietary interest in the assets held by the trustees: Y v R [2018] 1 CILR 1 [Grand Court of the Cayman Islands relied upon.

• 4. In any event, the Estate of the Deceased was not “ a person interested in the Settlement” under Rule 22(1) of the Judicial Trustee Rules. As such, it could not have locus standi to advance the application for removal.

• 5. The Deceased' summonses to remove the Judicial Trustee and to discharge the JT Directions Order do not survive him and have therefore abated: RSC. O.15 rr. 7–10.

RULING

Charles J

1 This Ruling arises from the tragic and untimely passing of the Eleventh Defendant,

Julius Trevor Bethel (“the Deceased”), on 17 January 2020.

2 On 14 January 2020, the Court made a directions order (“the January Directions Order”), which provided directions for the hearing of three sets of applications, which were defined in three schedules to the January Directions Order.

3 The Summonses included in Schedule 1 to the January Directions Order (“the Schedule 1 Applications”) were set for hearing initially to commence on 6 February 2020 with a time estimate of 2 days. The Schedule 1 Applications consisted of:

• (i) The Deceased' Summons filed on 18 August 2018 to remove the Judicial Trustee;

• (ii) The Deceased' Summons filed on 3 April 2019 to set aside the Directions Order of 18 March 2019 made by Justice Winder (“the JT Directions Order”);

• (iii) The Judicial Trustee's application by Summons filed on 14 January 2019 to strike out certain paragraphs of an affidavit of the Deceased; and

• (iv) The Judicial Trustee's application by Summons filed on 29 August 2019 seeking the ratification or remaking of the JT Directions Order (“the Ratification Application”).

4 Learned Counsel Ms. Glinton, who had represented the Deceased, civilly informed the Court and the other parties of his death. By letter dated 22 January 2020, Ms. Glinton informed the Court that the parties were in agreement that only one of the two days previously fixed would be required given the change of circumstances. It was mutually agreed to proceed on 7 February 2020 with one of the Schedule 1 Application, namely the Ratification Application, but there was not complete agreement as to the course to be followed on the remaining Summonses.

5 On 7 February 2020, Ms. Glinton attended the hearing. She helpfully advised the Court that Mr. Bethel did not appear to have left a Last Will and Testament and that no personal representative had yet been appointed. Ms. Glinton indicated that she could also not give any confirmation as to when this may occur. Ms. Glinton stated that she was hesitant to incur any further costs or expense in the Deceased' name until such time that she had instructions...