Henfield v Walkine

• Jurisdiction: Bahamas
• Judge: Winder J
• Judgment Date: 13 February 2015
• Court: Supreme Court (Bahamas)
• Docket Number: 2014/CLE/GEN/00852
• Date: 13 February 2015

Supreme Court

Winder, J.

2014/CLE/GEN/00852

Henfield

and

Walkine

Appearances:

Ranard Henfield for the plaintiff

K. Myles Parker for the defendant

Real Property - Property disposition — Whether executor had locus standi in the absence of a grant of probate — Accepted that executor had the capacity to commence proceedings — Whether defendant could rely on the Doctrine of Ademption or Satisfaction — Finding that the property was disposed of by the testator and was no longer part of estate of the deceased — Inter vivos transfer amounted to ademption — Device in will nullified.

Winder J

1 This is a dispute as to the appropriate disposition of 3 acres of property situated off Rocky Pine Road in the Western District of the Island of New Providence and which remained in the estate of the late Herbert Cleveland Walkine (“Cleveland Walkine”). The plaintiff claims that the property was devised to Vivian Jane Walkine Moss (“Vivian Moss”) and should therefore fall to her estate whilst the defendant asserts that the said property was conveyed by the Testator, at the direction of the said Vivian Moss prior to his death and therefore by operation of the doctrine of ademption the devise in the said will was inoperative.

BACKGROUND AND FACTUAL MATRIX

2 The plaintiffs claim is set out in her Statement of Claim filed on 25 July 2014 which sets out as follows: 1-8

The plaintiff is the sole Executrix of the Last Will and Testament dated April 29th 2004 of her mother, the late Vivian Jane Walkine-Moss, who is the sister of the late Herbert Cleveland Walkine who predeceased the said Vivian Jane WalkineMoss. 2. The said Vivian Jane Walkine-Moss is a beneficiary in the Last Will and Testament of Herbert Cleveland Walkine dated March 15th 1996 which was probated on April 1st 2010. 3. The defendant is the widow and sole Executrix of the Last Will and Testament of the said Herbert Cleveland Walkine. 4. Pursuant to the Last Will and Testament of the said Herbert Cleveland Walkine, a devise of three (3) acres out of a ten (10) acre tract situate on Rocky Pine Road off Gladstone Road was made to the said Vivian Jane Walkine-Moss and her husband the late Wilbert H. Moss Sr. who predeceased both Vivian Jane WalkineMoss and Herbert Cleveland Walkine. 5. During his lifetime and at the time of Mr. Walkine's death, without any agreement between Herbert Cleveland Walkine and Vivian Jane Walkine-Moss, he executed conveyances of approximately four (4) of the subject ten (10) acres to a development company owned by his longtime political colleague and friend Mr. Wells and several of his nieces and nephew, leaving approximately five (5) plus acres to his estate. 6. Pursuant to Mr. Walkine's Last Will and Testament, there was a specific devise to his wife of one (1) acre with a house erected thereon, thus leaving approximately four (4) plus acres in the estate from which the remaining beneficiaries were to receive conveyances by way of assent. 7. The defendant breached her fiduciary duties to Vivian Jane Walkine-Moss as she, inter alia, failed to convey the devised property to Vivian Jane Walkine-Moss during her lifetime or to her estate upon her death and instead has conveyed the remaining acreage to herself and her daughters thus depriving one of the beneficiaries under the will, Vivian Jane Walkine-Moss, of the use and benefit of the devised three (3) acres inter alia.

PARTICULARS OF BREACH OF FIDUCIARY DUTY BY DEFENDANT

• 1 i. Failing to exercise impartiality between beneficiaries under the Will of the late Herbert Cleveland Walkine;

• ii. Failing to distribute to the beneficiaries the assets entitled to them pursuant to the Will;

• iii. Failing to notify the plaintiff or Vivian Jane Walkine-Moss during her lifetime that the said Vivian Jane Walkine-Moss was a beneficiary under the Will;

• iv. Failing to execute a Conveyance by Way of Assent in favor of Vivian Jane Walkine-Moss of three (3) acres of the remaining acreage upon the death of Herbert Cleveland Walkine and the settlement of his just debts;

• v. Failing to account or produce an accounting to the plaintiff or Vivian Jane Walkine-Moss for the debts and payments thereof of Herbert Cleveland Walkine in light of the defendant selling parcels of the subject acreage on the premise of settling debts;

• vi. Failing to advise the plaintiff or Vivian Jane Walkine-Moss during her lifetime of any sale, agreements to sell or deeds of assent relevant to the subject acreage of land remaining at the time of the Testator's death;

• vii. Failing to compensate the plaintiff with the market value of the devised three (3) acre tract which the defendant conveyed to herself and daughters with full knowledge of the devise to Vivian Jane Walkine-Moss, which three (3) acre tract of the subject acreage is appraised at approximately B$11.00 per square foot.

• 8. In the premises, the late Vivian Jane Walkine-Moss and her estate have suffered loss and damage.

PARTICULARS OF LOSS AND DAMAGE

• i. Deprivation of use of the three (3) acre tract since 2010;

• ii. Damages for breach of fiduciary duty;

• iii. Loss of use of the value of the three (3) acre tract in the amount of B$1,437,480.00 since 2010.

PARTICULARS OF BREACH OF FIDUCIARY DUTY BY DEFENDANT

PARTICULARS OF LOSS AND DAMAGE

AND THE PLAINTIFF'S CLAIM is for:

1

A Declaration that the late Vivian Jane Walkine-Moss is a beneficiary of the Last Will and Testament of the late Herbert Cleveland Walkine; 2. A Declaration that pursuant to the Last Will and Testament of Herbert Cleveland Walkine, the late Vivian Jane Walkine-Moss is the beneficial owner of a three (3) acre tract devise situated off Rocky Pine Road in the Western District of the island of New Providence; 3. A Declaration that the Assenting Deeds dated October 23rd 2013 from the defendant to Juliette Pam Maria Walkine and (her daughters) Imogene Walkine and Angel Walkine-Podona are invalid; 4. An Order for the defendant to account for all assets and debts with supporting documents at the time of Herbert Cleveland Walkine's death and all proceeds of sales from the subject acreage to settle the debts of Herbert Cleveland Walkine; 5. An Order that the defendant execute a Conveyance by Way of Assent to the estate of Vivian Jane Walkine-Moss for three (3) acres of the remaining acreage at the time of death of Herbert Cleveland Walkine; 6. Damages for breach of fiduciary duties to Vivian Jane Walkine-Moss; 7. Damages for loss of use of the three (3) acres devised under the Will to Vivian Jane Walkine-Moss; 8. Further and in the alternative, an Order that the defendant pay to the plaintiff the monetary value of the devised three (3) acres which by admeasurement is 130,680 square feet at B$11.00 per square foot and totals B$1,437,480.00; 9. Interest pursuant to the Civil Procedure (Awards of Interest) Act 1992; 10. Such further and other relief that the Court deems just; 11. Costs.

3 The defendant's defence is set out in her Defence filed on 25 July 2014 which sets out as follows: 1-7

1

The defendant makes no admission to paragraphs 1 and 2 of the Statement of Claim and puts the plaintiff to strict proof thereof. 2. Paragraph 3 of the Statement of Claim is admitted. 3. The defendant makes no admission to paragraph 4 of the Statement of Claim. The defendant states that the Late Herbert Cleveland Walkine (hereinafter referred to as “the Testator”) disposed of the three (3) acres described in paragraph 4 of the Statement of Claim (hereinafter referred to as “the Acreage”) during his lifetime at the request and in accordance with the instructions of the late Vivian Jane Walkine-Moss (hereinafter referred to as “Vivian”). 4. But for the fact that the Testator conveyed an approximately one acre tract to Overhead Developers Limited, paragraph 5 of the Statement of Claim is Denied. The defendant of her own knowledge states that during his lifetime the Testator advised her that he intended to convey the Acreage to Vivian, who was his sister with whom he spoke daily, as a gift to Vivian. However, the Testator later advised the defendant that when he told Vivian of his intention to convey the Acreage to her, Vivian requested that, instead of him conveying the Acreage to her, he convey the acreage to her children in equal portions. The Testator agreed to Vivian's request and conveyed the Acreage to Vivian's six children in equal portions by six separate indentures of conveyance by way of gift and for which he received no consideration. 5. The defendant makes no admission to paragraph 6, of the Statement of Claim. 6. Paragraphs 7 and 8 of the Statement of Claim are denied and the defendant puts the plaintiff to strict proof thereof. 7. Save as is hereinbefore specifically admitted or not denied the defendant denies each and every allegation in the Statement of Claim as if the same was herein set forth and traversed seriatim.

4 The plaintiff called 2 witnesses, herself and Sophemia Marina Walkine.

5 The evidence-in-chief of Rebecca Henfield was provided in a witness statement which was settled in the following terms:

I, REBECCA HENFIELD, of Eastwood in the Eastern District of the Island of New Providence, one of the Islands of the Commonwealth of the Bahamas, will say as follows that:–

• 1. I am the youngest child of Vivian Jane Walkine-Moss and Wilbert H. Moss Sr. (both deceased) and the Executrix of the Last Will and Testament of Vivian Jane Walkine-Moss, hereinafter referred to as ‘My Mother’. Including myself, my parents had six children, namely Wilbert H. Moss Jr. (deceased), Gloria Moss, Coretta Moss, Veronica Culmer and Velma Seymour.

• 2. …

• 3. My mother, the true plaintiff in this action, survived my father who died in 2003. That by her Last Will and Testament I was appointed her Executrix. … her Last Will and Testament dated April 29th 2004.

• Knowledge of Uncle Cle's Will and Devise to Vivian Jane Walkine-Moss

• 4. Sometime this year, I...