Barrie Wilkinson v Patricia Ann Helen Devaux

• Jurisdiction: St Lucia
• Judge: Georges, J.[AG.]
• Judgment Date: 17 February 2011
• Judgment citation (vLex): [2011] ECSC J0217-1
• Court: High Court (Saint Lucia)
• Docket Number: SLUHCV 2008/0637
• Date: 17 February 2011

[2011] ECSC J0217-1

IN THE HIGH COURT OF JUSTICE

SLUHCV 2008/0637

Between

Barrie Wilkinson

Applicant

and

Patricia Ann Helen Devaux

Respondent

Georges, J.[AG.]

1 By notice of application filed 2^nd July 2008 the applicant herein applied to the Court seeking an order for the removal of a caveat entered by the respondent on 25^th February 2008 preventing the reseal in Saint Lucia of a grant of Letters of Administration made to him on 4^th January 2008 by the High Court of Justice District Probate Registry at Leeds United Kingdom in succession of his widow Marie Magdalena Wilkinson ("the deceased") who died intestate domiciled in England and Wales on 13^th May 2007. Leave is also sought to proceed with the resealing of the said grant in Saint Lucia.

2 In the grounds of his application the applicant asserts that he is entitled to administer the estate of the deceased under Article 1152A Ch. 242 of the CivilCode of Saint Lucia which states inter alia that:

"Where a Court of Probate, in any part of Her Majesty's dominions, or a British Court in a foreign country, has, either before or after the passing ofthis article, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters granted may, on being produced to, and a copy thereof deposited with, the Registrar of the Supreme Court, be sealed with the seal of that Court, and on being registered in the Registry of Deeds shall thereupon be of like force and effect, and have the same operation in the Colony as if granted by the Supreme Court."

He further asserts that there are no reasonable grounds in fact or in law prohibiting him from administering the estate of the deceased.

3 In his affidavit in support filed 2^nd July 2008 the applicant whose address is stated as Seascape Marisule in the Quarter of Gros Islet in the State of Saint Lucia avers that he was the lawful husband of the deceased and they were married in London on 20^th June 1963 at the Registry Office of the Royal Borough of Kensington and remained married until her unfortunate and untimely death on 13^th May 2007, that is, for approximately 44 years.

4 At paragraph 2 of the said affidavit the applicant deposed that from the outset "it was always our intention to make Saint Lucia our permanent and indefinite home -which we did". The court however notes in passing that the deceased's usual address as appears on her death certificate is stated as 85 Broadway Shifnal Shropshire and the applicant's address in the grant of Letters of Administration is the same. The deceased it will be recalled is stated in the Letters of Administration to have dieddomiciled in England and Wales [my emphasis]. That was from information furnished by the applicant to his solicitor in his application for Letters of Administration in the estate of the deceased.

5 The applicant further deposed at paragraph 2 that:

"At the time of our marriage the deceased who was previously married with five young children —the Respondent, being the youngest daughter aged nine at the time, our resettlement to St. Lucia was delayed until a more opportune time in order to maintain some level of contact with the children's biological father."

6 On 5^th January 1983 he became a Saint Lucian citizen he declared and it was during one of their visits to Saint Lucia in 1981 that the opportunity presented itself for his wife and himself to purchase "Seascape" at Marisule comprising and registered as Block 1053B Parcels 420-424 ("the Property").

7 The evidence shows that the total purchase price was US$90,000.00 and the applicant averred (at paragraph 4) that the finances for the purchase came from their joint finances. At the time of the intended purchase the applicant disclosed (at paragraph 4) that his citizenship application was pending so that in order to expedite matters and upon the advice of their attorney the first of two purchases was completed in the deceased's name in July 1981 and again in December 1982. To this day she is still the registered proprietor of the Property comprising 5 parcels of land and known as Seascape.

8 Following the acquisition of Seascape the applicant states (at paragraph 7 of his supporting affidavit) Saint Lucia became their permanent and uninterrupted home where they lived continuously until April 2006 when the deceased took ill and was forced to seek medical attention and treatment in the United Kingdom.

9 She in fact died intestate at New Cross Hospital Wolverhampton in May of the following year whereupon the applicant applied for and was granted Letters of Administration by the District Probate Registry in Leeds on 4^th January 2008 on account of his beneficial interest and order of priority under the Intestacy Rules of England. I should mention that the application was initially caveated by the respondent but the caveat was voluntarily lifted soon after.

10 In October 2007 he instructed his attorney in Saint Lucia to assist him in "settling the probate" only to discover that the respondent's attorney in Saint Lucia—Messrs McNamara & Co had filed a caveat on behalf of the respondent on 25^th February 2008 prohibiting reseal of the English grant on the ground that the respondent ("the deceased's youngest daughter by her former marriage) claimed an interest as heir of her deceased mother's estate.

11 In addition she declared that:

• (1) The applicant has advised that he claims a community share in the estate and as such he is not an heir and has no interest in the estate of the deceased.

• (2) Alternatively if the applicant is entitled to a reseal and is relinquishing his community share one of the children of the deceased wishes to be jointly appointed with the applicant as administrator of the deceased's estate.

• (3) As regards the grant obtained in the United Kingdom the children of the deceased were not included as heirs and were unable to assert a right to be included as personal representatives of the deceased's estate as her property passed to the applicant by survivorship.

12 In reply to the applicant's application for reseal of the English (UK) grant Beverley Devaux the eldest child and son of the deceased by her former marriage deposed in his affidavit that the respondent (his sister) had instructed attorneys in Saint Lucia to apply for Letters of Administration in the deceased's estate there. It was his understanding he said (and this is confirmed at paragraph 13(a) of the applicant's supporting affidavit to remove the caveat and for leave to reseal the UK grant in Saint Lucia) that the applicant was claiming a community share in the Property "Seascape" situate in Marisule which he claims had been purchased by the deceased and himself in July 1981 and December 1982.

13 At paragraph 8(b) of his affidavit Beverly Devaux deposed that:

"The travel expenses of the Applicant were met by Patricia Devaux to facilitate a trip to St. Lucia on the undertaking that the Applicant would sign all necessary documents to permit the Letters of Administration to proceed including the relinquishing of any claim to a community share, which he subsequently refused to do."

This is categorically denied by the applicant who at paragraph 4 of his affidavit in reply declared that:

"Clause 8(b) is denied. On absolutely no occasion have I agreed or undertaken to travel to St. Lucia to 'sign all necessary documents to permit the Letters of Administration to proceed including the relinquishing of any claim to a community share'."

And at paragraph 13(a) of the supporting affidavit to his application to reseal the grant the applicant declared that he believed that he was 'entitled to the reseal of the Letters of Administration in accordance with Article 1152 of theCivil Code and the decision of Sir Vincent Floissac CJ in Remy v Prospere (1992) 44 WIR 1731.

14 The relevant provision of Article 1152A of theCivil Code is set out in paragraph 2 and in Remy v Prospere at page 176 paragraphs f, g and h Sir Vincent Floissac CJ in delivering the judgment of the Court of Appeal lucidly explained that:

"The codal definition of 'community' indicates that community of property is a question of status or matrimonial status. The definition signifies that community is a product, incident or consequence of the matrimonial status. Since article 5 provides in effect that the St. Lucian laws relating to matrimonial status (which is the source of community) apply only to persons domiciled in St. Lucia, it follows that the St. Lucian laws of community do not apply to a husband who was not domiciled in St. Lucia at the time of his marriage. Any doubt as to the restricted application of the St. Lucian laws of community is removed by the proviso to article II80 which accentuates the otherwise obscure precondition of St. Lucian community that the husband should be domiciled in St. Lucia at the time of his marriage."

And according to Article 48 of theCivil Code:

"The domicile of a person, for all civil purposes, is at the place where he has his principal residence".

The applicant admitted that he had not filed any claim asserting a right to community but said that he was entitled to an equitable share in the Property in which he claimed a community interest as the finances for the purchase came from their joint finances. At paragraph 8 of his affidavit in reply the applicant states that of the purchase price of US$90,000.00 US$75,000.00 by way of a bank draft was paid to the vendor's attorney Mr. Kenneth Monplaisir which was drawn against his bank account with National Westminister Bank in Wall Street New York

but the draft copy is inscribed "debit our account" which suggests that this came from a joint account. So that there is no evidence of the ratio or proof of the contribution of the respective parties towards the purchase of Seascape. It was supposed to have been their abode at one time and later a joint...