Richards J
```html IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION CAUSE NO.G0005 OF 2016 BETWEEN: LINDELL WELLINGTON AUDREY WELLINGTON BARRINGTON WELLINGTON SHARON WELLINGTON LYNVAL WELLINGTON LORNA WELLINGTON SANDRA WELLINGTON PLAINTIFFS AND: DELROY WELLINGTON DEFENDANT Appearances: Mr. H. Phillip Ebanks for the Plaintiffs The Defendant in Person Before: Honourable Justice Cheryll Richards Q.C. Hearing Dates: 13th，14th，15th，22nd，27th and 28th February，1st 14th and 15th March 2019 HEADNOTE Civil Division-s.23 of the Registered Land Law (2004 Revision) Express Constructive Trust-Property held in a Matrimonial J DC MENT ``` This is a faithful transcription of the document, using Markdown for headings and paragraph structure, HTML for tables, and LaTeX for math. The content is extracted directly from the image provided.
INTRODUCTION
The seven Plaintiffs and the Defendant are the children of Edna and Isaac Wellington. A ninth child predeceased her parents. Mother and Father emigrated to the Cayman Islands from Jamaica in the early 1970s. Eight of their nine children emigrated with them. One child, Barrington Wellington remained in Jamaica although he would visit the family in the Cayman Islands from time to time. On occasion by virtue of a work permit granted to him to work as a handy man on his parent’s property he would remain on Island for extended periods.
By all accounts Edna and Isaac Wellington were a hardworking and industrious couple. They built a residence at 19 Brinkley Drive in Central George Town and over time added a number of rental apartments to the said property. This property, more formally described on the Cayman Islands Land Register as George Town Central Block 13 D Parcel 111 (“the property”) is at the heart of the dispute between the parties.
During their lifetime Edna and Isaac Wellington collected and shared between them the rental income from the property and although they lived in separate apartments, they both continued to reside on the said premises up to the time of their death. As at the trial date the evidence from the Defendant is that eight apartments were rented with a gross monthly rental income of $3,875.00. The Defendant and his wife reside on the property in a ninth apartment thus reducing the possible income by $575.00.
Edna (“Mother”) died intestate on the 24th August 2014. Upon her death the property which was jointly owned with Isaac Wellington passed into his sole ownership, following deletion of her name by virtue of s.115 of the Registered Land Law (2004). Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 2 of 78
Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 3 of 78
Audrey Wellington, one of the daughters, had a power of attorney over her financial affairs up until her death. On the 11th November 2014, Isaac Wellington signed a document in the presence of Justice of the Peace, James Arthur Roy Bodden, ("Mr. Bodden") by which he consented to the appointment of the Defendant as Administrator over the estate of his wife.1 On the application for Letters of Administration over his mother's estate, the Defendant attested to an inventory consisting of personal property to a value of CI $80,000.00 and no real property. His application was granted on the 6th March 2015.
Isaac Wellington ("Father") died intestate on the 16th March 2015 following a long illness. He was about 85 years old. Prior to his death, on the 5th September 2014, in the presence of Mr. Bodden, he executed a transfer document which added the name of the Defendant, Delroy Wellington as joint owner of the said property at 19 Brinkley Drive in consideration of "natural love and affection for my son."2
On his father's death by virtue of s.100 of the Registered Land Law (2004 Revision), the Defendant became the sole owner of the said property. This section is in the same terms as in the 2018 Revision of the Law and provides as follows:
(1) Where the land, lease or charge is owned jointly, no proprietor is entitled to any separate share in the land, and consequently-(a) dispositions may be made only by all the joint proprietors; and(b) on the death of a joint proprietor, his interest shall vest in the surviving proprietor or the surviving proprietors, joint and several.
(2) For avoidance of doubt, it is hereby declared that in the absence of a contrary declaration in writing, the interest of a joint proprietor in land shall be deemed to be a joint interest in the land.
(3) Where a joint proprietor dies intestate, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(4) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(5) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(6) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(7) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(8) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(9) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(10) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(11) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(12) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(13) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(14) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(15) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(16) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(17) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(18) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(19) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(20) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(21) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(22) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(23) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(24) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(25) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(26) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(27) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(28) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(29) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(30) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(31) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(32) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(33) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(34) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(35) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(36) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(37) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(38) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(39) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(40) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(41) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(42) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(43) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(44) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(45) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(46) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(47) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(48) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(49) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(50) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(51) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(52) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(53) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(54) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(55) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(56) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(57) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(58) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(59) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(60) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(61) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(62) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(63) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(64) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(65) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(66) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(67) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(68) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(69) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(70) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(71) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(72) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(73) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(74) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(75) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(76) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(77) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(78) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(79) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(80) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(81) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(82) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(83) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(84) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(85) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(86) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(87) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(88) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(89) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(90) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(91) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(92) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(93) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(94) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(95) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(96) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(97) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(98) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(99) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(100) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(101) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(102) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(103) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(104) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(105) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(106) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(107) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(108) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(109) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(110) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(111) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(112) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(113) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(114) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(115) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(116) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(117) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(118) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(119) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(120) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(121) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(122) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(123) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(124) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(125) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(126) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(127) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(128) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(129) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(130) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(131) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(132) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(133) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(134) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(135) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(136) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(137) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(138) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(139) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(140) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(141) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(142) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(143) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(144) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(145) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(146) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(147) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(148) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(149) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(150) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(151) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(152) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(153) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(154) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(155) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(156) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(157) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(158) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(159) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(160) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(161) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(162) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(163) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(164) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(165) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(166) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(167) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(168) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(169) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(170) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(171) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(172) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(173) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(174) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(175) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(176) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(177) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(178) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(179) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(180) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(181) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(182) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(183) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(184) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(185) Where a joint proprietor dies intestate and there is no surviving joint proprietor, his interest in the land shall vest in the surviving joint proprietors, joint and several.
(186) Where a joint proprietor dies intestate and
```markdown (a) the sole proprietor of any land, lease or charge may transfer the same to himself and another person jointly; and (b) a joint proprietor of any land, lease or charge may transfer his interest therein to all the other proprietors. (3) Joint proprietors, not being trustees, may execute an instrument in the prescribed form signifying that they agree to sever the joint proprietorship, and the severance shall be completed by registration of the joint proprietors as proprietors in common in equal shares and by filing the instrument."
By Originating Summons filed on the 12th January 2016, the seven Plaintiffs seek, inter alia, declarations that: a. The Defendant is not the sole beneficial owner of the property; b. The property forms part of the estate of the late Isaac Wellington; c. The Defendant holds the property on trust for the estate of the Deceased for himself and all the Plaintiffs; d. The persons entitled to claim or benefit from the said estate are the Plaintiffs and the Defendant; e. The Defendant is liable to account for rents and profits of the property from the date of death of the Deceased Isaac Wellington to the present.
The Defendant opposes the application primarily on the basis that his father's wishes are clearly set out in the transfer document signed on the 5th September 2014. ``` This is the transcription of the page, faithfully adhering to the original content and structure.
BACKGROUND
By way of procedural history, the Defendant acknowledged service of the Originating Summons on the 21 st March 2016 and indicated his intention to defend the matter. By Order made on the 14 th April 2016 the proceeding was stayed pending determination by the Plaintiffs as to whether to apply for the grant of Letters of Administration.
On the 20 th July 2016, the Defendant filed a notice that he would be acting in person.
On the 7 th September 2016, the Plaintiffs filed the Affidavit of Mr. Bodden and on the 30 th of May 2017, the Affidavit of Lindell Wellington. This stated inter alia that Lindell Wellington had been appointed as administrator of his father’s estate on the 27 th February 2017.
On the 4 th August 2017, an order was made for the Defendant to file his own Affidavit and any other Affidavits in support of his case by 4 th September 2017 and for the Plaintiffs to file any Affidavits in reply within 14 days thereafter.
On the 4 th September 2017 the Defendant filed two Affidavits, one in response to that of the Plaintiff Lindell Wellington and the other in response to that of Mr. Bodden. He also filed the Affidavits of Donald Cameron, Leroy Roberts and that of his wife Natalie Holder-Wellington.
On 1 st September 2017, the Plaintiff Lindell Wellington filed a Second Affidavit. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 5 of 78
```html 1 the Defendant produce records, receipts, bank statements and other documents in 2 relation to their father’s estate. 3 4 15. On the 16th November 2017, the hearing of the matter was adjourned, set down for a 5 day’s hearing and the Defendant was given leave to file one further Affidavit, following 6 upon which no further evidence was to be filed. 7 8 16. On the said day he filed a summons to strike out the Plaintiffs’ claim. This was supported 9 by his Affidavit which asserted that the proceedings had been wrongly commenced. He 10 asserted inter alia that the pleadings disclose no reasonable cause of action pursuant to 11 GCR O. 18 r.19 (1) (a), constituted an abuse of process pursuant to GCR O. 18 r. 19 1(d) 12 and that the claim is frivolous and vexatious pursuant to Order 18 rule 19 (1) (b). 13 14 17. Unfortunately this summons was not placed on the Court file. Trial of the matter began 15 before Carter J. on the 26th April 2018 and was part-heard to the 11th May 2018. 16 On 17 that date, the fact of the extant summons was brought to the attention of the Court and 18 the continuation of the hearing was adjourned pending a decision on this. 19 18. On the 29th August 2018, the Defendant’s summons was heard by Mangatal J. The Court 20 accepted the submission of the Plaintiffs that the case may be brought by Originating 21 Summons or by Writ of Summons and ruled that there was no basis to strike out the 22 Plaintiffs’ claim. Further orders included that the proceedings were to continue as if 23 begun by Writ of Summons, the Affidavits were to stand as pleadings, the parties were 24 to fil supplemental 12th September 2018 and 25 to be set down for another day trial 26 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 6 of 78 ```
```html 1 19. Thus the matter commenced de novo before me on the 13th February 2019 and continued 2 over a nine-day period. 3 4 THE CASE FOR THE PLAINTIFFS 5 6 20. In large measure the Plaintiffs base their factual case on the Affidavit of Mr. Bodden 7 and submit that the Deceased Isaac Wellington intended the creation of an express 8 constructive trust. They particularise this as follows3: 9 10 i. That the Deceased at the time of signing the transfer of property 11 documentation had the capacity to do so. 12 13 ii. That the Deceased made his intention clear at the time of signing the transfer 14 document and had done so on numerous occasions previously to both Mr. 15 Bodden and the other Plaintiffs. 16 17 iii. That the intention was made clear in the presence of Mr. Bodden and the 18 Defendant. 19 20 iv. That the Deceased intended the Defendant to be a custodian of the property 21 only (effectively holding on trust for all of the Plaintiffs and himself). 22 23 v. That there was never an intention by the Deceased for the Defendant to hold 24 the property as legal and beneficial owner to the exclusion of all other 25 siblings. 3 Plaintiffs Written submissions dated 13th March 2019 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 7 of 78 ```
```html 21. On the legal aspect the Plaintiffs rely on a number of cases which set out the principles 2 with respect to common intention constructive trusts and in particular the land mark case 3 of Stack v. Dowden4. This case, as do a number of the cases cited, deals with issues of 4 property held in a matrimonial or similar context. 5 6 THE LEGAL PRINCIPLES 7 8 22. The starting point is s.23 of the Registered Land Law (2004 Revision). This is in the 9 same terms as in the 2018 Revision of the Law and provides as follows: 10 “Subject to section 27, the registration of any person as the proprietor with 11 absolute title of a parcel shall vest in that person the absolute ownership of that 12 parcel together with all rights and privileges belonging or appurtenant thereto, 13 free from all other interests and claims whatsoever but subject - 14 (a) to the leases, charges and other incumbrances and to the conditions 15 and restrictions, if any, shown in the register; and 16 (b) unless the contrary is expressed in the register, to such liabilities, 17 rights and interests as affect the same and are declared by section 18 28 not to require noting on the register: 19 Provided that - 20 21 (i) nothing in this section shall be taken to relieve a proprietor from 22 any duty or obligation to which he is subject as a trustee; and 23 (ii) the registration of any person under this Law shall not confer on 24 him any right to any mineral oils unless the same are expressly 25 referred to in the register.” 26 27 28 4 [2007] UKHL 17 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 8 of 78 ```
```html 1 23. In order to establish their case, the Plaintiffs would require to satisfy the Court to the 2 civil standard that the Defendant as the registered owner of the property is nevertheless 3 subject to the duties or obligations of a trustee. 4 5 24. There is no document creating a trust in this case. This is a fact which the Defendant 6 repeated throughout the evidence and submissions in this case and to which I have due 7 regard. The absence of a document formal or informal is not fatal to the Plaintiffs’ claim. 8 It does however require care to identify the evidence which is capable of giving rise to 9 a constructive trust. 10 25. In the cited case of Stack v. Dowden, the property in dispute was the family home which 11 was in the joint names of the unmarried parties. Sixty five percent of the purchase 12 price had been provided by the defendant. On the sale of the property following the breakdown 13 of the relationship the Claimant sought an equal share of the proceeds. The Court held 14 that where domestic property was conveyed into joint names without any declaration of 15 trust, there was a prima facie case that the legal and beneficial interests in the property 16 were joint and equal. The onus was therefore on the party claiming otherwise to establish 17 that the parties had a common intention that the property was to be held in a particular 18 beneficial interest. In identifying the common intention, a Court should look at the 19 parties’ whole course of conduct which was not therefore limited to their respective 20 financial contributions. In dismissing the Claimant’s appeal the Court noted in that case 21 that it had made tribution to the had made the major contributio to the house and others had for the 22 he had 23 24 partners strictly use and others had for the 25 sources are noted their the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the
```html 1 “Just as the starting point where there is sole legal ownership is sole beneficial 2 ownership, the starting point where there is joint legal ownership is joint beneficial 3 ownership. The onus is upon the person seeking to show that the beneficial 4 ownership is different from the legal ownership. So in sole ownership cases it is 5 upon the non-owner to show that he has any interest at all. In joint ownership cases, 6 it is upon the joint owner who claims to have other than a joint beneficial interest.” 7 26.The Court considered the formulation used by Chadwick LJ in Oxley and Hiscock 8 and 9 stated: 10 “Oxley v Hiscock was, of course, a different case from this. The property had 11 been conveyed into the sole name of one of the cohabitants. The claimant had 12 first to surmount the hurdle of showing that she had any beneficial interest at 13 all, before showing exactly what that interest was. The first could readily be 14 inferred from the fact that each party had made some kind of financial 15 contribution towards the purchase. As to the second, Chadwick LJ said this, at 16 para 69: 17 "... in many such cases, the answer will be provided by evidence of what 18 they said and did at the time of the acquisition. But, in a case where there is 19 no evidence of any discussion between them as to the amount of the share 20 which each was to have-and even in a case where the evidence is that there 21 was no discussion on that point-the question still requires an answer. It 22 must now be accepted that (at least in this court and below) the answer is 23 that each is entitled to that share which the court considers fair having 24 regard to the whole course of dealing between them in relation to the 25 property. And in that context, the whole course of dealing between them in 26 the property includes the arrangements which they make from 27 time to time in order to meet the outgoings (for example, mortgage 28 contributions, council tax and utilities, repairs, insurance and 29 housekeeping) which have to be met if they are to live in the property as 30 their home.” (emphasis supplied) 31 Oxley v Hiscock has been hailed by Gray and Gray as "an important breakthrough" 32 (op cit, p 931, para 10.138). The passage quoted is very similar to the view of the 33 Law Commission in Sharing Homes (2002, op cit, para 4.27) on the quantification 34 of beneficial entitlement: 35 "If the question really is one of the parties' 'common intention', we believe that there 36 is much to be said for adopting what has been called a 'holistic approach' to 37 quantification, undertaking a survey of the whole course of dealing between the 38 parties and taking account of all conduct which throws light on the question what 39 shares were intended." 40 the preferabssing what i 41 ions. First, is essentially 42 That may bele way of ex the same the 43 for two reast emphasprougth 44 Second, there lis not enal to arch is sesuken to hav the parties mle that ihetill onduct, be it search efore, it does seght of thee taabandon in Jlt which reflects whatisesust, in thir cthe court the for the r ntended. 5 Paragraph 56 of Stack v. Dowden supra 6 [2003] 3 WLR 715 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 10 of 78 ```
```html 1 the result which the court itself considers fair. For the court to impose its own view 2 of what is fair upon the situation in which the parties find themselves would be to 3 return to the days before Pettitt v Pettitt [1970] AC 777 without even the fig leaf of 4 section 17 of the 1882 Act.7 5 6 27. In the local case of Ebanks v Ebanks8，the Court had to determine whether a constructive 7 trust had arisen in respect of property which had been used by a couple as a family home 8 although it had been registered initially in the name of the husband and his mother and 9 10 husband’s mother died，his two sisters were granted Letters of Administration over her 11 estate and transferred ownership of the property to one of the sisters. The learned Chief 12 Justice Smellie found that a constructive trust was capable of arising over the said 13 property as the husband and wife had a common intention that they would share the 14 beneficial interest and the sister to whom it had been transferred had acted in a way 15 which made it inequitable to deny the interest of the wife. 16 17 28. He stated： 18 “Where，as here，the beneficial interest relied upon was not set out in writing 19 “it can only take effect as a resulting，implied or constructive trust to which 20 [s.53 of the Law of Property Act 1925] has no application” (ibid.，at 905， 21 per Lord Diplock) (s.53 provides in the relevant part that a declaration of 22 trust respecting any land must be in writing but，under sub-s. (2)： “This 23 section does not affect the creation or operation of resulting，implied or 24 constructive trusts.” No directly equivalent provisions appear in the local 25 RLL，but s.23 provides in relevant part that the registration of any person 26 as proprietor with absolute legal title does not “relieve a proprietor from 27 any duty or obligation to which he is subject as trustee”). Lord Diplock 28 continued in words which have come to be regarded by the subsequent case 29 law (also to be cited below) as all but definitive (ibid.，at 905-906)： 30 resulting，implied or constructive trust-and ess classes of trust in 31 purposes of the Law of Property Act 1925， 32 “Aplied or constructive trust-and ess classes of trust in 33. presse to distin 34 trust in 35 purposes of the Law of Property Act 1925， 36 “Aplied or constructive trust-and ess classes of trust in 37 presse to distin 38 trust in 39 purposes of the Law of Property Act 1925， 40 “Aplied or constructive trust-and ess classes of trust in 41 presse to distin 42 trust in 43 purposes of the Law of Property Act 1925， 44 “Aplied or constructive trust-and ess classes of trust in 45 presse to distin 46 trust in 47 purposes of the Law of Property Act 1925， 48 “Aplied or constructive trust-and ess classes of trust in 49 presse to distin 50 trust in 51 purposes of the Law of Property Act 1925， 52 “Aplied or constructive trust-and ess classes of trust in 53 presse to distin 54 trust in 55 purposes of the Law of Property Act 1925， 56 “Aplied or constructive trust-and ess classes of trust in 57 presse to distin 58 trust in 59 purposes of the Law of Property Act 1925， 60 “Aplied or constructive trust-and ess classes of trust in 61 presse to distin 62 trust in 63 purposes of the Law of Property Act 1925， 64 “Aplied or constructive trust-and ess classes of trust in 65 presse to distin 66 trust in 67 purposes of the Law of Property Act 1925， 68 “Aplied or constructive trust-and ess classes of trust in 69 presse to distin 70 trust in 71 purposes of the Law of Property Act 1925， 72 “Aplied or constructive trust-and ess classes of trust in 73 presse to distin 74 trust in 75 purposes of the Law of Property Act 1925， 76 “Aplied or constructive trust-and ess classes of trust in 77 presse to distin 78 trust in 79 purposes of the Law of Property Act 1925， 80 “Aplied or constructive trust-and ess classes of trust in 81 presse to distin 82 trust in 83 purposes of the Law of Property Act 1925， 84 “Aplied or constructive trust-and ess classes of trust in 85 presse to distin 86 trust in 87 purposes of the Law of Property Act 1925， 88 “Aplied or constructive trust-and ess classes of trust in 89 presse to distin 90 trust in 91 purposes of the Law of Property Act 1925， 92 “Aplied or constructive trust-and ess classes of trust in 93 presse to distin 94 trust in 95 purposes of the Law of Property Act 1925， 96 “Aplied or constructive trust-and ess classes of trust in 97 presse to distin 98 trust in 99 purposes of the Law of Property Act 1925， 100 “Aplied or constructive trust-and ess classes of trust in 101 presse to distin 102 trust in 103 purposes of the Law of Property Act 1925， 104 “Aplied or constructive trust-and ess classes of trust in 105 presse to distin 106 trust in 107 purposes of the Law of Property Act 1925， 108 “Aplied or constructive trust-and ess classes of trust in 109 presse to distin 110 trust in 111 purposes of the Law of Property Act 1925， 112 “Aplied or constructive trust-and ess classes of trust in 113 presse to distin 114 trust in 115 purposes of the Law of Property Act 1925， 116 “Aplied or constructive trust-and ess classes of trust in 117 presse to distin 118 trust in 119 purposes of the Law of Property Act 1925， 120 “Aplied or constructive trust-and ess classes of trust in 121 presse to distin 122 trust in 123 purposes of the Law of Property Act 1925， 124 “Aplied or constructive trust-and ess classes of trust in 125 presse to distin 126 trust in 127 purposes of the Law of Property Act 1925， 128 “Aplied or constructive trust-and ess classes of trust in 129 presse to distin 130 trust in 131 purposes of the Law of Property Act 1925， 132 “Aplied or constructive trust-and ess classes of trust in 133 presse to distin 134 trust in 135 purposes of the Law of Property Act 1925， 136 “Aplied or constructive trust-and ess classes of trust in 137 presse to distin 138 trust in 139 purposes of the Law of Property Act 1925， 140 “Aplied or constructive trust-and ess classes of trust in 141 presse to distin 142 trust in 143 purposes of the Law of Property Act 1925， 144 “Aplied or constructive trust-and ess classes of trust in 145 presse to distin 146 trust in 147 purposes of the Law of Property Act 1925， 148 “Aplied or constructive trust-and ess classes of trust in 149 presse to distin 150 trust in 151 purposes of the Law of Property Act 1925， 152 “Aplied or constructive trust-and ess classes of trust in 153 presse to distin 154 trust in 155 purposes of the Law of Property Act 1925， 156 “Aplied or constructive trust-and ess classes of trust in 157 presse to distin 158 trust in 159 purposes of the Law of Property Act 1925， 160 “Aplied or constructive trust-and ess classes of trust in 161 presse to distin 162 trust in 163 purposes of the Law of Property Act 1925， 164 “Aplied or constructive trust-and ess classes of trust in 165 presse to distin 166 trust in 167 purposes of the Law of Property Act 1925， 168 “Aplied or constructive trust-and ess classes of trust in 169 presse to distin 170 trust in 171 purposes of the Law of Property Act 1925， 172 “Aplied or constructive trust-and ess classes of trust in 173 presse to distin 174 trust in 175 purposes of the Law of Property Act 1925， 176 “Aplied or constructive trust-and ess classes of trust in 177 presse to distin 178 trust in 179 purposes of the Law of Property Act 1925， 180 “Aplied or constructive trust-and ess classes of trust in 181 presse to distin 182 trust in 183 purposes of the Law of Property Act 1925， 184 “Aplied or constructive trust-and ess classes of trust in 185 presse to distin 186 trust in 187 purposes of the Law of Property Act 1925， 188 “Aplied or constructive trust-and ess classes of trust in 189 presse to distin 190 trust in 191 purposes of the Law of Property Act 1925， 192 “Aplied or constructive trust-and ess classes of trust in 193 presse to distin 194 trust in 195 purposes of the Law of Property Act 1925， 196 “Aplied or constructive trust-and ess classes of trust in 197 presse to distin 198 trust in 199 purposes of the Law of Property Act 1925， 200 “Aplied or constructive trust-and ess classes of trust in 201 presse to distin 202 trust in 203 purposes of the Law of Property Act 1925， 204 “Aplied or constructive trust-and ess classes of trust in 205 presse to distin 206 trust in 207 purposes of the Law of Property Act 1925， 208 “Aplied or constructive trust-and ess classes of trust in 209 presse to distin 210 trust in 211 purposes of the Law of Property Act 1925， 212 “Aplied or constructive trust-and ess classes of trust in 213 presse to distin 214 trust in 215 purposes of the Law of Property Act 1925， 216 “Aplied or constructive trust-and ess classes of trust in 217 presse to distin 218 trust in 219 purposes of the Law of Property Act 1925， 220 “Aplied or constructive trust-and ess classes of trust in 221 presse to distin 222 trust in 223 purposes of the Law of Property Act 1925， 224 “Aplied or constructive trust-and ess classes of trust in 225 presse to distin 226 trust in 227 purposes of the Law of Property Act 1925， 228 “Aplied or constructive trust-and ess classes of trust in 229 presse to distin 230 trust in 231 purposes of the Law of Property Act 1925， 232 “Aplied or constructive trust-and ess classes of trust in 233 presse to distin 234 trust in 235 purposes of the Law of Property Act 1925， 236 “Aplied or constructive trust-and ess classes of trust in 237 presse to distin 238
```html 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.” It was held in Ebanks v Ebanks, that when determining whether a constructive trust arose, the Court would consider: whether the parties intended that a beneficial interest should be acquired which was different from the legal interests evidenced by the registration of title; if they did, in what way and to what extent; and in relying on that common intention, whether the beneficiary acted to his or her detriment.” The learned Chief Justice found that in the absence of an express oral agreement, arrangement or understanding which would be unlikely in the context of a divorce property dispute, he was entitled to infer such an intention from the words or conduct of a party. As to the additional element of whether the beneficiary had acted to his or her detriment, believing that, by doing so, he or she was acquiring a beneficial interest in the property, the Court was of the view that this could be shown by direct financial contributions to the purchase price or mortgage payments for the property or by contributions made over time by way of manual labor to the general upkeep or significant improvement of the property or to the cost of utilities, repairs or insurance. Folly of a numbe the Court stated. owing review of authorities, the Court stated. 9 Paragraph 95 of Ebanks v Ebanks supra Judgment：Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram：Richards J. Date ：30.04.19 Page 12 of 78 ```
```html 1 “As to the second question, as the case law examined above explains, to establish a 2 basis for a constructive trust, it is not necessary for the party asserting the beneficial 3 interest to prove either an actual agreement or-when relying upon the entire course 4 of conduct in relation to the property-a specific account of financial contributions. 5 That party must show a common intention for the creation of a beneficial interest 6 which can be expressed or imputed as derived from the whole course of the conduct 7 of the parties in relation to the property in dispute. The relevant intention of each 8 party is the intention reasonably understood by the party asserting the interest as 9 manifest by the whole course of conduct. Thus, equity will not allow the party 10 denying the beneficial interest to rely on deceitful conduct by suggesting that his 11 intentions were other than those assured by him or those reasonably to have been 12 discerned from his course of conduct. Equity acts upon the conscience of the legal 13 owner to prevent him from acting in an unconscionable manner to defeat the 14 common intention.” 15 16 17 33. The Court referred with approval to the case of Lloyds Bank Plc v. Rosset 18 Lord Bridge, in dismissing as untenable the wife’s claim to a beneficial interest in the 19 house, described as critical the distinction between a claim of beneficial interest based 20 upon agreement, arrangement or understanding between parties and one which is based 21 upon the conduct of the parties as giving rise to an inference of a constructive trust. He 22 stated: 23 “He explained (ibid.) that if there is to be a finding of an actual “agreement, 24 arrangement or understanding” between the parties, it must “be based on 25 evidence of express discussions between the partners, however imperfectly 26 remembered and however imprecise their terms may have been.” 27 28 29 34. In the case of In Re Hinds 30 the Claimant Phillip Bradley Hinds sought to establish inter 31 alia that certain parcels of land, a house in the Cayman Islands and the proceeds of sale from a parcel of land were assets of his father’s estate at the time of his mothers’ death. He waneficiary ofte. The hous 10 as the sole behis father’s d been regist esterred 10 Paragraph 114 of Ebanks v Ebanks supra 11 [1991] 1 A.C. at 132 12 Paragraph 97 of Ebanks v Ebanks supra 13 [2015] (2) CILR 222 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 13 of 78 ```
```html 1 in his father's sole name. The three respondents， the step brothers of the Claimant urged 2 that although the house was registered in their step father's sole name it had been jointly 3 owned by their mother. The Court of Appeal， noted that this was a case where the legal 4 title was vested in the father alone and thus that a two-stage approach is required. The 5 Court cited with approval the case of Jones v. Kernott14 which identified the first issue 6 as being whether it was intended that the other party had any beneficial interest in the 7 property and the second as being if so， what that interest is. The Appellate Court stated： 8 “It is accordingly clear that， in order to establish a common intention constructive 9 trust， a two-stage test must be satisfied. First， it must be shown that there was a 10 common intention that both parties should have a beneficial interest in the property. 11 That is a question of fact that has nothing to do with fairness. It is only once the first 12 test is satisfied and a common intention is established that the second stage arises； 13 and it is only at that stage that， if it is not clear what beneficial shares were intended， 14 the court will determine what share it would be fair for each party to have in the 15 light of their whole dealings with regard to the property. In the present case， the 16 judge appears to have elided the two stages and sought what he regarded in all the 17 circumstances as a fair solution. If that is what he did， he erred in principle.”15 18 35. The Court identified a number of factors which pointed to a compelling intention that 20 mother should have a beneficial interest in the house. These included building contract 21 documents which referred to mother and father as seised of the estate， the sharing of 22 rental income between them during their lifetime and the fact that mother undertook 23 mortgage liability and contributed to building costs from funds which she held. 24 ```
```html 1 36. In James v. Thomas16, the English Court of Appeal held that a common intention constructive trust could be formed at any time before, during or after the acquisition of a property. The Court stated: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 More pertinently, if the circumstances so demand, a constructive trust can arise some years after the property has been acquired by, and registered in the sole name of, one party who (at the time of the acquisition), was, beyond dispute, the sole beneficial owner :.... But as those cases show in the absence of an express post-acquisition agreement, a court will be slow to infer from conduct also that parties intended to vary existing beneficial interests established at the time of acquisition." In that case, the Court did not consider that observations of the defendant that improvements to the property "would benefit us both" in the context where both parties were residing in the property was intended to be a promise of some property interest. A second assurance which was relied, was the defendant relating to the Claimant that in the event of his death she would be well provided for. The Court did not consider that this could have been a representation that on his death, the Claimant would get a share in the property. The Court considered the submission which was being made that the trial judge ought to have reflected, the defendant, Mr. Thomas' own view of what would be fair in an order, recognizing that the Claimant Ms. James was entitled to a share in the property and quantifying that share and in response stated:- Je judge was lat obvious te aer outcome emption. It in my view thrignt to resiswould have much hahpiif the part'theen 28 29 27 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29 28 29</td
```html 1 must be determined by applying principles of law and equity which (however 2 inadequate to meet the circumstances in which parties live together in the twenty- 3 first century) must now be taken as well-established. Unless she can bring herself 4 within those principles, her claim in the present case must fail. As Baroness Hale of 5 Richmond observed in Stack v Dowden [2007] UKHL 17，[61]；[2007] 2 WLR 831， 6 851 D-E it is not for the court to abandon the search for the result which reflects 7 what the parties must, in the light of their conduct, be taken to have intended in 8 favour of the result which the court itself considers fair."17 9 39. The applicability of these principles to non-matrimonial, non-common law partnership 10 cases was referenced in the case of Singh v. Singh18. The issue in that case was whether 11 the principles applied to the creation of family-controlled businesses. While noting that 12 there was question as to whether they applied in a commercial context19, the Court's 13 view was that some of the considerations in those cases applied with force to a family 14 type claim and thus that it was right to assume that the same principles apply.20 15 16 17 40. In the circumstances of that case, a father sought to prove that there was a common 18 intention that all of the family's properties were jointly owned by himself, his wife and 19 their three children in accordance with Hindu principles. 20 21 41. In considering the evidential question, whether the father had demonstrated that there 22 was such an understanding between himself and one of his sons, the Court noted that the 23 father's case rested on inference, an unspoken assumption from the upbringing of all the 24 children to observe traditional Sikh customs that they would regard any property they 25 acquired as joint family property. The Court said:- 17 Paragraph 38 of James v. Thomas supra 18 [2014] EWHC 1060 19 Crossco No. 4 Unlimited v. Jolan Ltd. [2011] EWCA Civ 1619 20 Paragraph 117 of Singh v. Singh supra Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 16 of 78 ```
```html 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 “As the authorities show the requisite intention is to be deduced objectively from the conduct of these two persons and this involves a survey of the whole course of dealing between them, taking into account any conduct which throws light on the question.” 42. The Court said that it was unable to find that there was such an understanding or intention and noted that there were a variety of transactions and other documented statements which contradicted the existence of the common intention which the father alleged. The conclusion was that in the absence of any dealings or events or conversation or other evidence, there was insufficient evidence to justify a finding that a common intention existed as to how the property would be beneficially owned. 43. In summary, applying the general principles as I understand them to be, to the instant case, the Defendant is the sole legal owner of the property, in the absence of evidence proving the contrary, he is also the sole beneficial owner. Anyone who asserts otherwise must prove that he holds the property upon trust. In the usual course, in the absence of a formal or informal trust document, the existence of a trust would be established by evidence of a common intention between the parties that the property in issue would be so held. A common intention could be established by registration in the names of all parties, or an express agreement between them that the property is to be shared beneficially or an inference may be drawn from direct contributions to the purchase of the property. There is also a requirement for proof that a party had acted to his detriment in the reliance on the common intention. There are however differing views on how and whetliment requirte onstrated 21 See de Bruyne v. de Bruyne [2010] 2 FCR 251 and Smith v. Bottomley [2013] EWCA civ. 953 Judgment：Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram：Richards J. Date ：30.04.19 Page 17 of 78
I have regard also and remind myself of the conventional equitable principles which were succinctly stated by Lord Browne-Wilkinson in **Westdeutsche Landesbank Girozentrale v. Islington LBC**:[22] i) "Equity operates on the conscience of the owner of the legal interest. In the case of a trust, the conscience of the legal owner requires him to carry out the purposes for which the property was vested in him (express or implied trust) or which the law imposes on him by reason of his unconscionable conduct (constructive trust)." ii) Since the equitable jurisdiction to enforce trusts depends upon the conscience of the holder of the legal interest being affected, he cannot be a trustee of the property if and so long as he is ignorant of the facts alleged to affect his conscience, i.e. until he is aware that he is intended to hold the property for the benefit of others in the case of an express or implied trust, or, in the case of a constructive trust, of the factors which are alleged to affect his conscience. iii) In order to establish a trust there must be identifiable trust property. The only apparent exception to this rule is a constructive trust imposed on a person who dishonestly assists in a breach of trust who may come under fiduciary duties even if he does not receive identifiable trust property. iv) Once a trust is established, as from the date of its establishment the beneficiary has, in equity, a proprietary interest in the trust property, which proprietary interest will be enforceable in equity against any subsequent holder of the property (whether the original property or substituted property into which it can be traced) other than a purchaser for value of the legal interest without notice."
In the context of this case, applying basic trust law principles, the two elements which are required are the identification of defined trust property and proof of factors affecting the conscience of the Defendant in relation to the alleged trust property.
[1996] A. C. 669 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 18 of 78
The primary issue here is to determine whether there is evidence as the Plaintiffs assert that their father in the absence of a will intended that the property transferred to the Defendant was to be held on trust for all his children and was to be beneficially owned by all of them and importantly that the Defendant well knew that this was what his father intended for him to do. If the Defendant did so, the equitable position (all other required factors having been proven) is that it would be unconscionable for him to retain both the legal and beneficial interests in the property. THE EVIDENCE IN THE CASE There is no evidence of incapacity on the part of Father in this case. Neither side has raised this as an issue. I accept also as the Defendant says, that Father was free to leave his property on his death, as he chose. He could have left it to a charity or stranger had he so determined. I am mindful that I am not deciding this case based on some broad notion as to what would have been fair for Father to have done in disposing of property on his death. This property was transferred prior thereto. It did not form part of his estate on his death to be considered in the context of Letters of Administration. The issue is as to his actual intention, express or implied at the time of the transfer. The Defendant’s case is that his intention is clear from the transfer document. The Plaintiffs ask the Court to consider other evidence and say that his actual intention is clear from a number of statements which he made. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 19 of 78 **Footnote:** 23 Geary v. Rankine [2012] EWCA Civ. 555
```html 1 49. Initially the Plaintiffs based the fulcrum of their case on the evidence of Mr. Bodden and 2 asserted that at the time of the signing of the transfer document, Father made his 3 intentions clear that he was transferring the property to the Defendant for the benefit of 4 all of his children. As Mr. Bodden's evidence unfolded in the manner which I will detail 5 below, the Plaintiffs then sought to place greater reliance on statements made by Father 6 over the course of his lifetime both to Mr. Bodden and to some of his children. 7 8 50. After closing their case, the Plaintiffs sought leave to reopen their case in order to 9 introduce two video recordings of Father himself speaking to the issue of the ownership 10 of the property. These had been mentioned in the Affidavit evidence of Lindell 11 Wellington and in the oral evidence of Audrey Wellington but not produced as part of 12 the Plaintiffs case. On the application, Counsel for the Plaintiff explained that he had 13 made the decision not to introduce them as when first played on a phone they appeared 14 to him to be almost unintelligible. He had more recently been able to listen to them on a 15 larger instrument and was of the view that they were not as unclear as he had initially 16 thought. 17 18 51. I exercised my discretion to allow these to be produced despite the lateness. I did so for 19 three reasons. Firstly, their existence was already clear from the Affidavits and the oral 20 evidence. Secondly and importantly they appeared to be real evidence going directly to 21 the very issue in the case. It is important to the Parties that this evidence be heard. 22 Thirdly the Defendant could be and was given an opportunity to hear the material in 23 adva spond by girl ence on oat 24 h. 25 26 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 20 of 78 ```
It transpired that the two videos were undated and no one could recall the precise date when they had been recorded. The best recollection of both Plaintiffs and Defendant was that this must have been after the January 2015 altercation between Lindell Wellington and the Defendant and thus about five months after Father had executed the transfer document. The Plaintiffs therefore rely on three strands of evidence in order to prove their case on a balance of probabilities, oral statements made by Father before the transfer, to Mr. Bodden and his children, statements made at the time of execution of the transfer and statements made after the transfer to Audrey, Lynval and Sandra Wellington which were video recorded by Audrey Wellington. In summary, on the evidence, in the absence of an express written or oral indication of the creation of a trust, the Plaintiffs ask the Court to construe the words and actions of Isaac Wellington over the continuum of time as being sufficient to create on their behalf an equitable proprietary interest in the property. If indeed there were such words and actions, I would add that there should also be evidence that these words and actions by Father were heard and seen by the Defendant. Against the legal background which requires a focus on ascertaining Father’s true intention and for that intention to be objectively ascertained from all the evidence which is available, much of the oral evidence in this case was unhelpful. A singular fact on which both Parties agreed was that Father was a deeply religious and strict man who believed that his children should live according to certain standards and retain high moral values. This led to Father’s standards in order to accuse the other side of not doing what their Father would have wished and putting this forward as the reason that Father chose to
```html 1 disinherit one or other of the siblings or would not have chosen the Defendant as his 2 heir. The Plaintiffs’ case is that Father always said that the property was for all his 3 children. The Defendant’s case is that Father said that he was not leaving his property to 4 “no wicked children” and he detailed incidents going as far back as 1993. He spoke of 5 the lifestyle choices of one sibling, the criminal convictions of Lindlell Wellington and 6 his involvement in criminal activity as being viewed by Father as bringing shame upon 7 the family. The Plaintiffs countered with the accusation that the Defendant was no 8 different from them. He too had girlfriends outside of marriage before he settled down 9 and he was the only one they say who had physically assaulted their father by punching 10 him to the ground. 11 56. The Defendant suggested that he had greater relations with Father than any of the other 12 siblings because he had honor for him and lived up to his beliefs and honored his mother. 13 He said he got married, has no children out of wedlock and did whatever his father asked 14 of him. 15 16 17 57. A more recent reason for father’s displeasure with the other children according to the 18 Defendant was that they had neglected their mother and prematurely caused her death 19 and that Father believed that one of the children was poisoning him. The accusations 20 and counter accusations across the Court room escalated in intensity with each day of 21 trial and culminated in Barrington Wellington who gave evidence by video link from his 22 home in Jamaica calling for the wrath of God’s judgment on the head of the Defendant. 23 24 58. Suffthat this was ice it to say ice from s wi fortunatetart 25 bitterness on both sides. 26 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 22 of 78 ```
```html 1 59. In reviewing the evidence against the legal background of what has to be determined, I 2 do not propose to deal with much of this evidence as to indiscretions, character and 3 conduct of individuals. In effect I am being asked by both sides to conclude that in light 4 of the conduct of one or other, Father must have viewed that child in a particularly 5 negative way and must have made a decision as to the disposition of his property 6 accordingly. My view is that it would be unsafe to do so. The proper approach must be 7 to ascertain what Father actually said or did and what he intended, not what he is likely 8 to have intended in light of a child’s conduct. 9 10 EVIDENCE OF AUDREY WELLINGTON 11 12 60. In her affidavit evidence Audrey Wellington stated that prior to her father’s passing he 13 said to her on various occasions that the property would be for all the children and that 14 the Defendant was to care take it. She said that he told her that Mr. Bodden knew the 15 “full runnings” of the matter. She describes her father as very old school in terms of 16 being quite untrusting by nature and says that she understood from what he told her that 17 he was not going to simply leave the property to any of the children to determine how to 18 share it with the others and thus she says that it made sense to her that he had left Mr. 19 Bodden to witness what he wanted to happen with the property on his death. She stated 20 that she owns her own home and is in a good job and is not in financial need as are some 21 of her siblings. 22 23 24 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 23 of 78
61. She was on good terms with the Defendant and his wife, Natalie up until her mother’s passing and they were frequent visitors to her home. She describes the Defendant as being domineering towards his wife, belittling her and sometimes asking her if she was stupid which caused her to become submissive to him.
62. She states that neither the Defendant nor his wife cared for either of her parents over the years. They did not visit them regularly and on the Defendant’s part he usually visited, only when he needed to borrow money. He had received assistance from them to purchase heavy equipment trucks and sporting vehicles and had difficulties repaying the monies which he had borrowed so tended to avoid his parents and rarely visited them and it was only after the death of Mother that the Defendant became interested in Father.
63. She said that prior to 2014, the Defendant and his wife had minimal interaction with their parents because they (her parents) expressed their view that the children should work hard to earn their own living.
64. She stated that over the years, she and her siblings came to know Mr. Bodden with whom her father had been acquainted for many years. They had developed a strong friendship over the years and her father always spoke highly of him. After the Defendant became caretaker of the property, he installed locks on the gates and instructed the tenants not to allow others onto the property. This prevented family members from visiting Father. ```
```html 1 she should have had a helper other than her daughter Sandra Wellington who is mentally 2 ill and has irregular sleeping habits because of her medication. He suggested that Mother 3 had been mistreated and other siblings had not sought the proper medical attention for 4 her or taken the appropriate action on the day of her death when it appeared that she had 5 fallen and hit her head. 6 7 67. The Defendant has invited the Court to consider this evidence as being relevant to 8 Father’s views on his children and thus as making Father’s action in disinheriting them 9 understandable. He suggested to Audrey Wellington that Father said to her that she was 10 too manipulative and that she could not do to him what she had done to her mother. Ms. 11 Wellington denied having any such discussion with Father and robustly denied any 12 neglect of her mother. 13 68. She accepted the Defendant’s suggestion that over time there were different incidents 14 between other siblings and their parents which lead her to comment to the Defendant 15 that she wished that they were the only two children for their parents. Lindell Wellington 16 and Father had arguments and so did the Defendant and Father. Due to Lindlell’s actions, 17 Mother decided to sell a property in Newlands which the three of them (Audrey, Lindell 18 and Mother) had purchased together. 19 20 21 69. Her own relationship was not as close with Father as it was to her mother but they never 22 had a major disagreement. Father gravitated towards his Church brothers and sisters. It 23 is poe lost connec of the child 25 said B get all his c and “T B” and the ow 24 ssible that hetion with mes not know. 24 rather than they Rldren ugiol ent was 25 her nephew, Lujancy Bouchard (LB). 26 27 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 25 of 78 ```
```html 1 70. She said that on the 28th August 2014, she and some of the other children intervened in 2 an attempted signing of documents by Father after receiving a call from Barrington 3 Wellington because Father's stated intention was that the property was not for Lujaney 4 Bouchard. It was for him to be a caretaker and his intention was to have sole ownership 5 of the property. She said that it is not correct that, Father asked to speak with the 6 Defendant privately on that day. 7 8 71. She and the others did not allow Father to make his own decision on that day, because 9 they believed that he did not have the capacity to make his decision and that he was 10 under duress. He was lying on his back at the time. The Defendant was content for the 11 transfer to be effected that day but all the others were not happy. 12 13 72. It was suggested to her that over the years, Father was consistently explaining that he 14 would not be leaving anything for any children who had been disrespecting him and 15 not living up to his rules. She did not agree with this but agreed that it is correct 16 that Father believed in marriage, and no children out of wedlock. She agreed that 17 she did not live up to her father's high Christian beliefs and said that none of the 18 children did. 19 20 73. She said that the Defendant became involved with Father, because Lynval and 21 Barrington Wellington pushed him to be involved and to get active. It was not that 22 he was chosen by Father. About a week or two after the attempted signing incident 23 with Lujaney Bouchard on about 31st August or early September 2014, the 24 Defendant lockout of the Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 26 of 78 ```
Despite Father confirming to the Police that he had no difficulty with any of his children visiting him, the Defendant locked the gate.
Upon her mother’s death the Defendant had said that he had nothing else to do with the family and ceased communication with everyone.
Following the incident in January 2015 between the Defendant and Lindell Wellington, she made inquiries at the Lands and Survey Department. She spoke to Father and thereafter to Mr. Bodden. They did nothing more because Mr. Bodden said that the Defendant would do the right thing based on his discussions with Father.
She said that there was no way in the world that Father would put the property in the Defendant’s name alone. Father did not hold him in any higher regard than others and he had no special position in terms of honouring Father. She said that they all knew how Father felt about all of them. There were no favorites. They all agreed as a family to bring this claim because what the Defendant was doing was against their Father’s wishes.
The Defendant produced his mother’s funeral programme and suggested to her that the reason why he was the one who read the lesson was because Father and Mother were aware of what he stood for. She denied this and said it was nothing to do with Father, who did not even attend the funeral. A choice was made based on the Defendant’s intellectual capacity. All the siblings attended the funeral except Sharon Wellington. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 27 of 78
Evidence of Lindell Wellington
Lindell Wellington is the youngest child for his parents. He and the Defendant have had a poor relationship over the years and many fights.
In his Affidavit evidence Lindell Wellington states that prior to his mother’s death, a hired caretaker in addition to a church brother and sister, Malio and Mable together with a grandchild, Luijaney Bouchard cared for father.
Shortly after mother’s death it appeared that LB was attempting to have Father sign over the property to him on the basis of love and affection, but Father advised that the property was not for his sole benefit but for the benefit of all his children. LB objected to this and Family members intervened and the documents were not signed.
On visiting his father, Father told him that he was not to worry, he had discussed everything with Mr. Bodden and had things in place.
His understanding from multiple discussions with his father was that the Defendant “was to hold the property on trust for all the children, to manage and oversee it and to ensure that any income received was equally distributed among all the children.” He states that Father had made it known to all of them including the Defendant that the Defendant “was to oversee and hold the Property on trust for them all in equal shares”\footnote{Paragraph 9 of Affidavit of Lindell Wellington dated 29th May 2017}.
He further states that Mr. Bodden’s Affidavit supports this position and that: Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 28 of 78
```html 1 “An affidavit from my sister Audrey Wellington with copies of videos which she 2 recorded of conversations with my father prior to his death is also filed in these 3 proceedings. I saw these videos shortly after they were recorded and before my 4 father died (I would say around 3-6 months before my father died. These detail and 5 support that the property belongs to all of us and not Delroy Wellington alone.” 6 84. He asserts that the Defendant has failed to act in accordance with the wishes of his late 8 father and has instead acted as if the property is his alone and to the detriment of the 9 Plaintiffs. 10 85. In his Second Affidavit dated 20th September 2017, he states that he and the Defendant 12 had an argument about the property and in the course of that argument he damaged a car 13 on the property causing some $2，839.45 worth of damage and not $5，000.00 worth of 14 damage as the Defendant claims. 15 86. For about six years prior to Father transferring the property, the Defendant had very little 17 relations with his parents and would often pass unpleasant remarks about them. His 18 (Lindell's) relationship with his father was at least as good as the relationship Father had 19 with the Defendant. Father had no remarkable father-son relationship with the Defendant 20 over any of his other children. 21 87. Lindell Wellington denied being particularly close to Mr. Bodden. He has known him 23 he says for some time but was not close to him. He was his manager when he was emplzon Autos in 26 90s for a 24 oyed to Hori. the early 25 19 pool 27 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 29 of 78 ```
```html 1 88. Lindell Wellington was cross examined by the Defendant at some length. He explained 2 that they made inquiries following the altercation in January 2015 and the statements 3 made by the Defendant that he would “deal with him with pen and paper”. When they 4 were outside of Father’s apartment he was told by the Defendant that he was not 5 supposed to be on the property and that he was trespassing. He discussed the situation 6 with Audrey and they made inquiries at the Land Registry and discovered that the 7 property had been transferred into the Defendant’s name. While Father was still alive, 8 they applied to the Registrar of Lands and obtained permission to place a restriction on 9 the property until the matter could be resolved. It was following that incident, that the 10 Defendant placed padlocks and chains on the gates to the property. They called the 11 Police on a few occasions but by the time they received assistance from the Police to 12 enter the property in order to see Father, Father died. In the interim no one could get into 13 the property so he did not approach Father. That is the reason which lead them to seek 14 the assistance of the Police. 15 16 89. He was aware from Father on the 25th January 2015 that the Defendant was in charge, 17 handling everything, a caretaker because Father could not move around. He believed at 18 that time that his father placed trust in the Defendant to oversee everything. It was not 19 until Father died that they became aware that the property was placed in the sole name 20 of the Defendant and that the Defendant was claiming everything, that he took action. 21 22 90. When Father spoke to Defendant about a room on his behalf, the Defendant replied that 23 therem， the room ther then said 24 that is what 25 he arge say Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 30 of 78 ```
```html 1 91. Audrey Wellington went to visit Father and he heard a few recordings of his Father and what Father wanted him to do. He said that he saw these videos. They were made about 3-6 months before Father died when he was healthier. Because of the videos they felt that they did not need to take documentation. They put the videos with Father saying the place is for everybody on a flash drive and they have kept them. He said that they have no documents to show Father's wishes, the documents they have is the videos they have of their father saying that the property is for everybody. 92. He had lived on the property a dozen times over the past 15 years while the Defendant had lived there only once. Whenever he is in difficulty, he would ask his mother who would speak to Father and he would be permitted to stay. When they were children, they had all assisted to build the property. They had worked hard carrying blocks and zinc to the construction workers. 93. He either said he did not recall or denied a number of incidents of poor behavior and denied disrespecting his mother several times while there were living at the house they had purchased together in Newlands. He said that it was not true that mother left that residence following an altercation in which he called her names and never returned. He denied that Father had confronted him about this. 94. He said that it was not true that Father had to bail him from the Police on more than one occasion because from he reached 18 years of age, he could bail himself. He said that he had me for assault weapon, he had served or served time with a deadly one month lly th in 25 Prisoned himself six inches. Hwa 24 ot served 26 and that he was problematic to his parents, and continually put financial strain on them. ``` ```latex \documentclass{article} \usepackage{amsmath} \usepackage{graphicx} \section{Audrey Wellington's Testimony} \begin{enumerate} \item Audrey Wellington went to visit Father and he heard a few recordings of his Father and what Father wanted him to do. He said that he saw these videos. They were made about 3-6 months before Father died when he was healthier. Because of the videos they felt that they did not need to take documentation. They put the videos with Father saying the place is for everybody on a flash drive and they have kept them. He said that they have no documents to show Father's wishes, the documents they have is the videos they have of their father saying that the property is for everybody. \item He had lived on the property a dozen times over the past 15 years while the Defendant had lived there only once. Whenever he is in difficulty, he would ask his mother who would speak to Father and he would be permitted to stay. When they were children, they had all assisted to build the property. They had worked hard carrying blocks and zinc to the construction workers. \item He either said he did not recall or denied a number of incidents of poor behavior and denied disrespecting his mother several times while there were living at the house they had purchased together in Newlands. He said that it was not true that mother left that residence following an altercation in which he called her names and never returned. He denied that Father had confronted him about this. \item He said that it was not true that Father had to bail him from the Police on more than one occasion because from he reached 18 years of age, he could bail himself. He said that he had me for assault weapon, he had served or served time with a deadly one month lly th in \item Prisoned himself six inches. Hwa \item ot served \item and that he was problematic to his parents, and continually put financial strain on them. \end{enumerate} \textbf{Judgment:} Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. \textbf{Date:} 30.04.19 \textbf{Page 31 of 78} ```
```html 1 He said that it was not true that Father had changed his heart towards him because Father 2 had a special word for him during the time that he was ill. 3 95. He said that Sandra Wellington resided at the property for years in accordance with the 4 wishes of his parents. They saw her as needing help and wanted her to remain there 5 because she was ‘physically challenged’. The Defendant caused her to vacate the 6 premises. He had her electricity and water disconnected. The door of her apartment was 7 removed and she had to get water from the neighbors for months. His parents saw 8 Barrington in the same way. They had him there living rent free and he got special care. 9 10 11 96. Sharon Wellington left the premises some 15-20 years ago. She is married. She did not 12 visit the premises frequently. There was an incident between Sharon and Father in 2004 13 after Hurricane Ivan. Food was then scarce. Father used to stay at her premises and there 14 was an argument. She was cooking and called the children to eat first before Father. 15 Father said that he deserved more respect. He called a taxi and left and from that time 16 Sharon has never visited the property. 17 18 97. He described Father as a forgiving man, a godly man who did not hold grudges. He 19 would still acknowledge that you are his son. There were no major problems between 20 himself and Father leading up to the 29th January 2015. He accepted that Father did not 21 like incidents with the Police and criminal activity and always warned about this but he 22 would still assist him with lawyer fees. He would lend him money and he would have to 23 pay ： not win n him back but not with interest 24 mm back Ducrest. 25 26 27 28 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 32 of 78 ```
AFFIDAVIT EVIDENCE OF JAMES ROY BODDEN Mr. Bodden is a Justice of the Peace and at the time of his Affidavit, 21st August 2015, he was also the president of the University College of the Cayman Islands. He describes himself as a very good friend of Father and that he is familiar and friendly with his family. In his Affidavit evidence he stated that on the 5th September 2014, he visited Father and realized that he was not in good health. Father told him that he wanted to transfer the property which he owned into his name and that of his son the Defendant so that in the event of his death, he could oversee and manage the property. At paragraph 7 of his Affidavit he said this: > "He indicated to me that his intention was to leave the property equally for his 8 children so that all proceeds from the property should be divided equally between the 8 children." He said that Father made it very clear to him in the presence of the Defendant that this was his intention and that the Defendant who was present throughout the full conversation, would manage and oversee the place. He stated further that after they had established the intention of Father he and the Defendant signed the transfer of the property in his name. He stated that this was all done on the basis that the 8 children would benefit equally from the property and the Defendant would oversee or manage the property. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 33 of 78
```html 103. At paragraph 11, he stated:- 2 “It is my opinion that Mr. Isaac Wellington made it quite clear to Delroy that he 3 was transferring the property to him so that he could “oversee” or “manage” it on 4 behalf of his other siblings who were to share the income from the property.” 5 104. He stated that he was shocked to learn that on Father’s death the property had been taken 6 over completely by the Defendant and knows that this is totally opposite to what father 7 indicated that his intention was in his presence. The Defendant knows that this is wrong 8 because he was present when Father said that he was to oversee and manage the property 9 on behalf of all of his other brothers and sisters. 10 11 CROSS EXAMINATION OF JAMES ROY BODDEN 12 13 105. In cross examination, Mr. Bodden appeared to resile from some of the specificity of his 14 Affidavit. He said repeatedly that in his role as a Justice of the Peace, he does not ask 15 too many questions because he does not wish to inquire into the personal affairs of 16 persons when he is called to witness a document. He said that he got the impression as 17 to Father’s intention based on earlier discussions he had with him, his knowledge of him 18 as a family man and what was said at the time of the signing of the transfer document. 19 20 106. Given the importance of Mr. Bodden to the Plaintiffs’ case, I have carefully reviewed 21 all of his evidence and summarize much of it in this judgement. He said that he made 22 two visits in respect of the matter. He thinks that the first occasion was for the transfer 23 Defe wife and hans nd and the sdo with a Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 34 of 78 ```
```html 1 Defendant, he cannot recall his wife being in the room but he thinks that he saw her on 2 the premises. 3 107. He began by stating that on his attendance at the property on 5th September 2014, after 4 some casual conversation, Father asked him to witness some land documents. He agreed 5 to do so and Father produced the documents and he went through them with him to 6 ensure that he was signing at the correct places. The documents may have been filled 7 out by the Defendant’s wife before they were signed by all parties. He is not sure as it 8 was a long time ago. He does not recall miscommunication as to the place to sign and 9 the Defendant’s wife insisting as to where the signatures were to be affixed. 10 11 108. He wanted to ensure that Father conveyed to him that he had the interests of other 12 children at heart as he had done on so many occasions previously. Father was always 13 proud of his family. He said that he got the impression that the land transaction was 14 facilitated out of convenience because it would have been manifestly impossible for all 15 persons to be present and that Father chose one person to have power of attorney over 16 his affairs. He recalls that this was particularly so in the case of bank accounts. 17 18 109. He could recall verbatim what Father’s answer was to the question about the interests of 19 the other children but he gave an answer that caused him (Mr. Bodden) to be sufficiently 20 convinced that his wishes were to see the property distributed among his children. 21 22 110. It was suggested to Mr. Bodden that Father’s answer was in the negative and included 23 the words “if you don’t want me to speak in terms...” 24 25 insure to do. I’o the sense the been did not aid 25 Mr. Bodden 26 then and there refused to witness the transaction. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 35 of 78 ```
```html 111. He said that his conversation with Father was brief and when he ascertained that Father was acting of his own volition, he did not press the matter. It is not within him to ask about personal affairs. Mr. Bodden stated that as always has been his practice when people ask him to assist as a Justice of the Peace, he never pierces beyond the very cursory involvement. It is not his business beyond that, other than to see that Father was in his right mind doing the transfer. In circumstances where he is called as a Justice of the Peace to witness these kinds of things he wants to be sure that the person doing the transfer is doing so of their own accord and that there was no duress, beyond that, were not his issues. He did not wish to become involved and had not asked any questions other than what pertained to the action he was being requested to do. 112. He is a professional so does not delve. When a person requests his service as a Justice of the Peace it is not his business to delve into certain personal matters. He makes the assessment: - Is it legal and appropriate to sign this affidavit or is it not? - If it is not he says no, he is not doing it. 113. But he does not question the individual as to why he is doing this. That is not his business. Once he ascertains that it is above board and legal and he can put his signature to it, that is what he does. 114. It just happened that in the case of Mr. Wellington, they were acquaintances so“he knew a lithe background know from joining street low; off the ```
```html 115. He was lead to put things in his Affidavit, based on the conversations that he had with Mr. Isaac Wellington over the years. He believed that Father was the consummate family man. He was equally proud and always spoke endearingly of all of his children and how 116. In response to the question as to why he did not take action to have Father put his intention in black and white, he said that it was not for him to tell Father what he was to do with his property. To do otherwise would have been interfering in his personal affairs. 117. To the suggestion that he was simply making an assumption, he said that is the impression which he was left with, that it was Father’s wish that none of his children be 118. On that occasion he got the impression because he recalls that they had a general conversation before and he was surprised that Father was so calm about his eventual passing. He knew him to be a person of faith. The conversation generated around him saying that he was dying and ready to leave the earth. Mr. Bodden said: “I recall discussing what is your wish. He intimated the fact that he would wish that his children would be taken care of. I came away with the impression I didn’t ask, I didn’t question him that Delroy is the youngest son and that he had entrusted him with this responsibility. 19 20 21 22 23 24 25 26 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 37 of 78 ```
```html 119. Mr. Bodden accepted that he had done land transfers prior to this and that there is more 2 space on the transfer document for names to be added. 3 4 120. He said that it was his belief that based on conversations that he and father had before 5 that day that Father realised that it would be a complication if more than one person was 6 added and that he wanted to leave the Defendant as a kind of power of attorney. In no 7 way did he get the impression that it was personal to him. 8 9 121. He stated: "I never categorically asked him that - i.e. what was his intention." 10 11 122. He signed the documents believing that Father's wishes at that time were that the 12 Defendant was to be in charge. Father did not sign a document stating that but that was 13 the impression that Mr. Bodden got from the transaction at the time and from previous 14 conversations with him. 15 16 123. He knew father from 1980 and vividly recalls the conversations they had. They met 17 periodically as by coincidence they had the same bankers. They would also meet at an 18 Office where Mr. Bodden previously worked and he would assist father with his work 19 permit applications. 20 21 22 124. Based on his knowledge of him, 'there is no guessing that he (Mr. Bodden knew of 23 father's conscience and 'his proclivity for fairness' and he always spoke of his pride of his ed about the runners and he always be so it basis that M Father yon assumed war is on that L hat te to be 24 children, talk girls who weamed with ere pride 25 inclusive. 26 27 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 38 of 78
It is possible that Father could have mentioned treatment of Mother but it did not register to him. He did not see that as being that important that it would deter him from doing what he thought was correct and 'obliging' in this instance.
Father did say that he wanted to transfer the property so that his son could oversee the property. He bases this on the recollection that he gathered that Father really did not want to obtain the services of an Attorney. He suggested to Father that there was another way of doing that. The essence of the conversation as he recalls was that it was going to be complicated and expensive.
Before they entered into the intricate details of the signing, there was a brief conversation with Father, the purpose of which was that he (Mr. Bodden) wished to ascertain for himself that Father was conscious of what he was undertaking and that he was doing it of own volition with no duress. So he suggested to Father the whole idea of a will, which is when the idea came up about complication and expenses.
It is true that Father had documents and that they were completed. Mr. Bodden said that he realized then that Father had given some thought to the seriousness of the matter which he raised and it would be appropriate to proceed. The reason that this concerned him is that he saw the potential for multiple claimants and no clear succession plan which was his fear. In hindsight he regrets now not expressing it because, when the matter came to a head and he was requested to give an Affidavit, he realized that he should have raised it with Father, i.e. the possibility for the family to be spilt as a result of there being no clition or no cl ear interpretdear hiera Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 39 of 78 ```
```html 1 129. He said that the Defendant was not present for every minute of the transaction between himself and father. He recalls vividly that he came and went, he was in and out of the room. While it is true as the Defendant suggested that Father could not sit upright, the Defendant placed him upright, he was propped up with some pillows, and then when he was uncomfortable the Defendant came and changed his position. He was not in the mids of them for every minute of the conversation. He helped Father with his signature but was not present for every minute of the conversation. 8 9 130. Mr. Bodden said that it appeared to him that Father must have had some conversations 10 11 12 prior to his coming there as to what his wishes and desires were. He did not go into that, did not press that but that is what he came away with, that Father trusted this young man, he ‘may have been a Joseph and he trusted him’. 13 14 131. With respect to paragraph 7 of his Affidavit, when he speaks of Father’s intention, he 15 16 17 18 132. based on conversations that he had had with him. He did not express it. 19 Mr. Bodden said that he was not there to pry and interrogate. He was there because 20 Father called him to witness the signing. He did not want to be interested beyond that. 21 133. At the very beginning Father made no expression to him that there was to be anyone to 22 be absolutely and exclusively the owner. He always spoke of his children. He went 23 through with the signing (despite the document being different from his impression) 24 becaot see that thnflict he did his commit, des mentione use he did nere was any Father as t not question specat he said. It that Fatld as to the 25 if icity of what is not to ior recollecter anything 26 about a trust. 27 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 40 of 78 ```
```html 1 134. Exclusivity is not the impression that he came away with. It is quite plausible that the 2 Defendant's interpretation could be different from his. He stated in his Affidavit the truth 3 as he saw it. 4 5 135. He said also that he signed the ‘financial document’. There was nothing about sharing 6 on this document. He understands that on bank accounts there are a limited number 7 of signatures so he saw nothing out of the way especially for control and management 8 9 136. Mr. Bodden accepted that he was not privy to information on the family. He said that 10 Father did not bring to his attention that he tried to perform a land transfer previously. 11 He said that he would not have been aware of circumstances leading up to Father’s death. 12 He is very particular and peculiar, when people come and request his services as a Justice 13 of the Peace, he is careful not to give the impression that he is too nosy or curious, nor 14 does he want to give the impression that he has any interest in the settlement of their 15 affairs beyond his service as a Justice of the Peace witnessing a document, so he never 16 questioned Father as to what transpired in his family. He did not know that Father had 17 grieved or suffered at the hands of the children. He had no knowledge of what transpired 18 on 29th January 2015 between the Defendant and Lindell Wellington. He admitted that 19 he did not the know full facts, (Father’s relationship with the children) when he gave his 20 Affidavit. 21 22 137. In the aftermath of the signing of the documents, he could not recall any visit or any 23 conveyance of father 24 house was the t and his s oe of the clvisi 25 He had 26 conve any of father 27 house was the t and his s oe of the clvisi 28 He had 29 conve any of father 30 house was the t and his s oe of the clvisi 31 He had 32 conve any of father 33 house was the t and his s oe of the clvisi 34 He had 35 conve any of father 36 house was the t and his s oe of the clvisi 37 He had 38 conve any of father 39 house was the t and his s oe of the clvisi 40 He had 41 conve any of father 42 house was the t and his s oe of the clvisi 43 He had 44 conve any of father 45 house was the t and his s oe of the clvisi 46 He had 47 conve any of father 48 house was the t and his s oe of the clvisi 49 He had 50 conve any of father 51 house was the t and his s oe of the clvisi 52 He had 53 conve any of father 54 house was the t and his s oe of the clvisi 55 He had 56 conve any of father 57 house was the t and his s oe of the clvisi 58 He had 59 conve any of father 60 house was the t and his s oe of the clvisi 61 He had 62 conve any of father 63 house was the t and his s oe of the clvisi 64 He had 65 conve any of father 66 house was the t and his s oe of the clvisi 67 He had 68 conve any of father 69 house was the t and his s oe of the clvisi 70 He had 71 conve any of father 72 house was the t and his s oe of the clvisi 73 He had 74 conve any of father 75 house was the t and his s oe of the clvisi 76 He had 77 conve any of father 78 house was the t and his s oe of the clvisi 79 He had 80 conve any of father 81 house was the t and his s oe of the clvisi 82 He had 83 conve any of father 84 house was the t and his s oe of the clvisi 85 He had 86 conve any of father 87 house was the t and his s oe of the clvisi 88 He had 89 conve any of father 90 house was the t and his s oe of the clvisi 91 He had 92 conve any of father 93 house was the t and his s oe of the clvisi 94 He had 95 conve any of father 96 house was the t and his s oe of the clvisi 97 He had 98 conve any of father 99 house was the t and his s oe of the clvisi 100 He had 101 conve any of father 102 house was the t and his s oe of the clvisi 103 He had 104 conve any of father 105 house was the t and his s oe of the clvisi 106 He had 107 conve any of father 108 house was the t and his s oe of the clvisi 109 He had 110 conve any of father 111 house was the t and his s oe of the clvisi 112 He had 113 conve any of father 114 house was the t and his s oe of the clvisi 115 He had 116 conve any of father 117 house was the t and his s oe of the clvisi 118 He had 119 conve any of father 120 house was the t and his s oe of the clvisi 121 He had 122 conve any of father 123 house was the t and his s oe of the clvisi 124 He had 125 conve any of father 126 house was the t and his s oe of the clvisi 127 He had 128 conve any of father 129 house was the t and his s oe of the clvisi 130 He had 131 conve any of father 132 house was the t and his s oe of the clvisi 133 He had 134 conve any of father 135 house was the t and his s oe of the clvisi 136 He had 137 conve any of father 138 house was the t and his s oe of the clvisi 139 He had 140 conve any of father 141 house was the t and his s oe of the clvisi 142 He had 143 conve any of father 144 house was the t and his s oe of the clvisi 145 He had 146 conve any of father 147 house was the t and his s oe of the clvisi 148 He had 149 conve any of father 150 house was the t and his s oe of the clvisi 151 He had 152 conve any of father 153 house was the t and his s oe of the clvisi 154 He had 155 conve any of father 156 house was the t and his s oe of the clvisi 157 He had 158 conve any of father 159 house was the t and his s oe of the clvisi 160 He had 161 conve any of father 162 house was the t and his s oe of the clvisi 163 He had 164 conve any of father 165 house was the t and his s oe of the clvisi 166 He had 167 conve any of father 168 house was the t and his s oe of the clvisi 169 He had 170 conve any of father 171 house was the t and his s oe of the clvisi 172 He had 173 conve any of father 174 house was the t and his s oe of the clvisi 175 He had 176 conve any of father 177 house was the t and his s oe of the clvisi 178 He had 179 conve any of father 180 house was the t and his s oe of the clvisi 181 He had 182 conve any of father 183 house was the t and his s oe of the clvisi 184 He had 185 conve any of father 186 house was the t and his s oe of the clvisi 187 He had 188 conve any of father 189 house was the t and his s oe of the clvisi 190 He had 191 conve any of father 192 house was the t and his s oe of the clvisi 193 He had 194 conve any of father 195 house was the t and his s oe of the clvisi 196 He had 197 conve any of father 198 house was the t and his s oe of the clvisi 199 He had 200 conve any of father 201 house was the t and his s oe of the clvisi 202 He had 203 conve any of father 204 house was the t and his s oe of the clvisi 205 He had 206 conve any of father 207 house was the t and his s oe of the clvisi 208 He had 209 conve any of father 210 house was the t and his s oe of the clvisi 211 He had 212 conve any of father 213 house was the t and his s oe of the clvisi 214 He had 215 conve any of father 216 house was the t and his s oe of the clvisi 217 He had 218 conve any of father 219 house was the t and his s oe of the clvisi 220 He had 221 conve any of father 222 house was the t and his s oe of the clvisi 223 He had 224 conve any of father 225 house was the t and his s oe of the clvisi 226 He had 227 conve any of father 228 house was the t and his s oe of the clvisi 229 He had 230 conve any of father 231 house was the t and his s oe of the clvisi 232 He had 233 conve any of father 234 house was the t and his s oe of the clvisi 235 He had 236 conve any of father 237 house was the t and his s oe of the clvisi 238 He had 239 conve any of father 240 house was the t and his s oe of the clvisi 241 He had 242 conve any of father 243 house was the t and his s oe of the clvisi 244 He had 245 conve any of father 246 house was the t and his s oe of the clvisi 247 He had 248 conve any of father 249 house was the t and his s oe of the clvisi 250 He had </tr
```html 1 138. After father's death, there may have been a telephone call from some of the children 2 who may have called him to say that that they were disappointed that they were left 3 of the settlement. His recollection is that it was after Father's death that he was first 4 approached by the children and at no time before. 5 6 139. It is possible that he telephoned the Defendant thereafter raising a query about what had 7 occurred. He recalled expressing to the Defendant his disappointment about his locking 8 the gate, and locking his siblings out. He did say to him that this was not his 9 understanding of the transaction. While he acted on the complaint that the siblings made, 10 at the same time he was reluctant to get involved. The only reason he made the call to 11 the Defendant was because his actions were contrary to his understanding and to 12 conversations and impression that his father left. 13 14 140. He was challenged at length about whether he was in breach of his obligations of 15 confidentiality, and denied the suggestion that he was in breach of his functions as a 16 Justice of the Peace by reporting in Affidavit form what he had done as part of his civic 17 duty. There was no secrecy involved. He considered himself free to report what he had 18 done and said that indeed that is the whole essence of the transparency. 19 20 141. When he provided his Affidavit, he did not know that the Plaintiffs were going to be 21 putting a restriction on the property. He was asked to state what his role in the transaction 22 was and he did so. He had no idea what action they were taking and did not question 23 the 24 as to 25 the 26 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 42 of 78 ```
```html 1 142. In response to the allusion that he was favoring one side over the other. He said that he 2 had no special relationship with Lindell Wellington as distinct from other members of 3 the family. At one point they had worked together at the same business location where 4 he was a general manager of a company. He had a professional relationship with all the 5 employees and no closer relationship with Lindell Wellington than with any of the 6 employees. 7 143. He said that the Defendant had visited his residence on 2 or 3 occasions and that prior to 9 the phone call on 19th March 2015, they were and still are on good speaking terms. He 10 holds no malice against him. He said that it would be difficult for the Defendant to say 11 that he favoured other siblings over him when the Defendant had been invited to his 12 premises and they had not. He did not see what ground the Defendant would use to say 13 that he would collude or conspire with them against him. He had treated all with equal 14 favour and respect. 15 144. He thought that it was sad and would have been disappointing to Father ‘to see his 16 progeny squabble over something he worked so hard for and took such pride in’. He did 17 not recall a conversation with Audrey Wellington where he said to her ‘not to worry 18 Delroy is going to do the right thing’. 19 21 145. In re-examination, he stated that he had signed his Affidavit six months after father’s 22 death and at the time he did so, the facts were fresh in his mind. 23 25 property so that his death told him that to 24 Dehat Fatheath manage the 25 the prt in event of r to oversee an e transfer 14nformed paras Affidav it, t lroy would ne wanted 26 and he said when he gave his Affidavit, it was accurate and correct to his knowledge and 27 belief. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 43 of 78 ```
```html 1 147. He got the distinct impression that father placed a lot of pride in the property because on 2 more than one occasion, it was his concern that the property never pass out of the hands 3 of his family. He placed an almost sacred pride in that property. 4 5 148. With reference to paragraph 11 of his Affidavit, the impression he got was based upon 6 the conversations they had and the relationship he saw with the Defendant. There was 7 no question in his mind that Father had a special trust for him but he never got the 8 impression that it was to the exclusion of other children. 9 10 149. He maintained paragraph 12 of his Affidavit. He came away with the everlasting 11 impression that he was a family man and that one of the things he cherished was keeping 12 his family together. They never held discussions as to the transfers outright and he did 13 not trespass beyond a certain point. He understood that Father was leaving the Defendant 14 in charge of the property as a representative who would administer his wishes. That was 15 the discussion they probably had before about sharing the property among all the 16 children. He mentioned it one time that he did not want any of his children excluded. 17 18 EVIDENCE OF BARRINGTON WELLINGTON 19 20 150. Barrington Wellington is the eldest son for his parents. He remained in Jamaica and did 21 not reside permanently in the Cayman Islands. He has visited and resided here from time 22 to time on work permits taken out by Mother, the last such period being for about nine 23 year with his mother up until the time of his death and would help around the home. 24 both parents home. 25 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 44 of 78
He said, about a week after his mother’s death, he became aware that Malio, his wife and a nephew were trying to take over the property and were in the yard with papers. He was very worried about this because Father was very sick and did not look like he knew what was going on. He called his brothers and sisters, and all came to the property except for Lindell and Sharon.
While they were talking, Lynval told the Defendant, that Father had called to see him (Lynval) but that the Defendant should be the one to help Father as Father needed help. Barrington said that he agreed with this and also encouraged the Defendant to help. The Defendant was reluctant at first, saying that he did not want to get involved but they persuaded him. Barrington Wellington said that he knew that the Defendant and Father were never really close but he said that he should still help him which he later did.
After his mother’s death, no one took care of his Immigration status and he was eventually detained by Immigration and sent off the Island. He believes from comments made by the Defendant when he was in Immigration detention that he it was who encouraged Immigration to send him off the Island.
All of the children had differences with their parents from time to time but the Defendant was the only one to physically strike Father by punching him to the ground.
Father believed strongly in forgiving and never kept a grudge against any of the children for very long and he feels sure that Father forgave them all including the Defendant for any day had along Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 45 of 78
```html 1 156. Before the incident with Malio and Lujaney, Father and the Defendant had poor 2 relations. He rarely visited Father. When he did come to the property, it was to visit 3 Mother. The problem between them was that Father had lent money to him to purchase 4 a dump truck which he never paid back. 5 157. In cross examination, he said that he had not been in communication with the Defendant 6 for a couple years now as the Defendant had stopped taking his calls and does not call 7 him and that this was not the agreement between them. He said if he had not stopped 8 Mario and others, the Defendant would not have the property now and the Defendant 9 has neglected him and he is in need. He said that the Defendant is lying about any plot 10 to kill Mother. 11 12 13 158. As the only child who had remained in Jamaica, he had always been helped by his 14 parents. He was there working in the yard to get a blessing from God, not to get property. 15 For the nine years he was there he could have taken his parents aside and had papers 16 signed but he did not do so. He said that he was giving evidence because he wanted to 17 have the opportunity to speak to the Defendant who has been avoiding him. 18 19 159. He said: 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634
He is surprised that the Defendant took over and does not want to share anything with anybody. Sandra was given a room at the house with her children and she was to stay there for as long as life lasts.
He said after he gave his Affidavit, he received a call from Mr. Clive (Facey) He does not know his full name. Mr. Facey called him and asked him if he gave any statement about the case. He suspected at the time that the Defendant was there because “Mr. Clive” does not usually call him. **EVIDENCE OF THE DEFENDANT DELROY WELLINGTON**
In his Affidavit evidence of 4th September 2017, the Defendant stated that he has been estranged and in no communication with Lindell Wellington for over thirty years. The finances of father and his well-being were being handled by a couple who were his church friends of ten years, Malio and his wife and by his nephew. This was up until the time of an incident which occurred during which the Plaintiffs threatened to kill them and the Police were called. The Plaintiffs concocted a story to the Officers which resulted in the Police telling them to leave. Shortly thereafter he was contacted about the handover of his father’s keys and bank books.
He stated that this incident lead to his father acting to finalize his affairs in order to avoid the Plaintiffs who had a vendetta to manipulate him. He was instructed by his father to go to the Survey Department by his father to make an inquiry reported to be a property title inquiry. He did so and he was mother and procedure to the Lands Department. father. He states that over the years his father constantly reminded the Plaintiffs that Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 47 of 78
```html 1 they would not be getting anything that he had worked hard to build which always 2 generated animosity and hatred towards his parents. 3 164. He said that on the morning of the 28th August 2014, he was at home when he was 4 awakened by a call from Barrington Wellington about a possible attempt by Father’s 5 caregivers to force Father to sign documents. He responded by saying that Father was 6 free to do what he wants to do. On receipt of a second call he decided to go to the 7 property. While there sitting on a neighbor’s porch, he was approached by Barrington, 8 Audrey and Lynval. They stated that we cannot let these people (referring to Malio and 9 others) take the property. He, the Defendant reminded them that his father had always 10 said that he was not leaving anything for any children of his who are not with him for 11 them to fight over. He reminded them that Father always said that he was not raised by 12 a father, and had to fend for himself from the time he was ten years old “so it is every 13 man and woman for themselves, he was not taking what he worked hard for and give it 14 to no wicked children.” 15 16 165. He stated that his Father had made it clear to all the Plaintiffs who were making inquiries 17 that he (the Defendant) was the owner now so anything they wanted to know, they should 18 speak with him. While his father was still alive none of the Plaintiffs dared to ask a 19 question about it. They were not party to information about the decision which his father 20 made in September 2014. 21 22 166. He dleem on Lindell, in the incident on the 29th January 2015, in which Lindell Wellington came to 23 25 the anded to know happeninopesk about ere 24 at Father 25 premises anated that 26 had put in it in writing with the Justice of the Peace, Lindell started to become Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 48 of 78 ```
The document appears to be a legal judgment or court document. Here is the transcription of the page, maintaining the original structure and content: ---
belligerent. The Defendant asked him to leave and an altercation ensued which escalated as Lindell pulled a knife and he responded by punching him.
167. He said that his father decided and ensured that he took care of his affairs and did so in order to eliminate assumptions and opinions. He said that it was made clear to his father that as per Cayman Islands Law and succession that in the event of his death, once the death certificate was produced, the property would go solely to him, (the Defendant), which his father acknowledged and confirmed.
168. He said that his father never got over what Lindell Wellington and the other Plaintiffs did to him or put him and his wife through. He gave several examples of this.
169. Mother had entered into a joint purchase of a home with Lindell and Audrey and had advanced the deposit of $29,000.00 which had never been paid back to her. Lindell Wellington constantly provoked him and the other tenants who lived on the property causing tenants to leave and great stress on his mother.
170. On one occasion, Lindell, totally destroyed his father’s car, which had been recently restored and which was of great sentimental value to him. Lindell Wellington disobeyed rules and assaulted a girlfriend several times while living on the property, His father asked him to leave after seeing signs of visible injury to the female. Lindell brought disgrace to his parents with Police matters and Court cases involving abuse and other things to women. --- **Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J.** **Date: 30.04.19** **Page 49 of 78** --- This transcription preserves the original text and structure of the document, including the pagination and the footer information.
```html 1 171. He said that his father had nothing to say or do with him leading up to his illness and it 2 was only after he was bedridden that Lindell tried to befriend him. By this time it was 3 already too late and Father had already changed his heart towards them. 4 5 172. Lynval, Lorna, and Audrey all had borrowed money from Father and all of them 6 exploited Father financially. 7 8 173. He produced a document dated 29th August 2014 which was signed by Father and also 9 witnessed by Mr. Bodden 10 11 174. In his Affidavit dated 4th September 2017 in response to that of Mr. Bodden, the 20 Defendant states that Mr. Bodden was not a very good friend of Father but only an 21 acquaintance. Instead he says Mr. Bodden was close to Lindell Wellington and had a 22 relationship with his son relationship. 23 er son relation. 24 25 26 27 175. He visited Mr. E ; work play and his wife Bodden atce and requested his services. They had done so previously for marriage and Immigration documents. They told him of Father’s illness and sought his assistance. On Mr. Bodden’s Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 50 of 78 ```
```markdown arrival at the property on 5 th September 2014, the written Lands and Survey forms were handed to him. He read out the contents of the document to Father and asked him if he understood and whether this was his true intention. He then asked him if he was forced, or threatened in preparing the document and when he said no, the documents were signed. This process was followed for all the documents, Deletion of death of a Joint proprietor, transfer of land through love and affection, Certificate of Identification and statutory declaration.
He said that while signing the Certificate of Identification Mr. Bodden asked "what about the rest of the children", whereupon Father responded by saying, "you are here to do what I want, not what you or anyone else wants, so if you want to remain on speaking terms for my remaining time, don’t tell me what to do. My decision is my decision to make, so what is done is done, I wouldn’t change it for anyone." Mr. Bodden then continued by asking whether Father understood and the voluntary nature of his actions. He said that at no time did Father tell Mr. Bodden of any intentions other than what the document stated and that there was no mention of other children being beneficiaries in any form.
His father chose to disinherit the Plaintiffs and they were told this numerous times over the years. His reasons for doing so were his own. He says that Mr. Bodden is speculating as to what he (Mr. Bodden) wanted his father’s intentions to be.
On 7 th September 2014, he visited Mr. Bodden’s place. Mr. Bodden made an offer of work to his mother’s estate. Mr. Bodden assisted them and they did not speak with him again. ``` ```latex \documentclass{article} \usepackage{amsmath} \usepackage{hyperref} \usepackage{geometry} \geometry{a4paper, margin=1in} arrival at the property on 5 th September 2014, the written Lands and Survey forms were handed to him. He read out the contents of the document to Father and asked him if he understood and whether this was his true intention. He then asked him if he was forced, or threatened in preparing the document and when he said no, the documents were signed. This process was followed for all the documents, Deletion of death of a Joint proprietor, transfer of land through love and affection, Certificate of Identification and statutory declaration.
He said that while signing the Certificate of Identification Mr. Bodden asked "what about the rest of the children", whereupon Father responded by saying, "you are here to do what I want, not what you or anyone else wants, so if you want to remain on speaking terms for my remaining time, don’t tell me what to do. My decision is my decision to make, so what is done is done, I wouldn’t change it for anyone." Mr. Bodden then continued by asking whether Father understood and the voluntary nature of his actions. He said that at no time did Father tell Mr. Bodden of any intentions other than what the document stated and that there was no mention of other children being beneficiaries in any form.
His father chose to disinherit the Plaintiffs and they were told this numerous times over the years. His reasons for doing so were his own. He says that Mr. Bodden is speculating as to what he (Mr. Bodden) wanted his father’s intentions to be.
On 7 th September 2014, he visited Mr. Bodden’s place. Mr. Bodden made an offer of work to his mother’s estate. Mr. Bodden assisted them and they did not speak with him again. \begin{table}[h] \centering \begin{tabular}{|c|c|} \hline \textbf{Date} & \textbf{Page} \\ \hline 30.04.19 & 51 of 78 \\ \hline \end{tabular} \caption{Judgment: Cause G 0005/2016 Wellington \& Ors. v. Delroy Wellington Coram: Richards J.} \end{table} ```
```html 1 until the 19th March 2015 when he received what he describes as an unpleasant phone 2 call from Mr. Bodden which made accusations against him. 3 179. In cross examination he said that his father had the 29th August 2014 ‘financial 4 document’ prepared and presented it to them. He also said that his father never explained 5 to him that he wanted him to have the property in so many words. He just had the 6 document presented to him and explained that he wanted to get this done. He told him 7 to go to the Lands Department and find out what he needed to do to add him to the 8 property. He and his wife did so and received a template. They returned and explained 9 to Father the procedure. 10 180. He admitted to being in the background listening to Mr. Facey’s call with Barrington 11 Wellington. He said that the conversation took place while they were at their house. Mr. 12 Facey’s house is close to theirs. Upon returning home, Mr. Facey approached him to ask 13 him what was going on. He told Mr. Facey what was happening and Mr. Facey said that 14 he is going to call Barrington. While Mr. Facey was there talking to Barrington, he was 15 there listening. He denied the suggestion that he was colluding with others to assist his 16 case. 17 181. He said that his father wanted to turn the whole property over to him but Lands and 18 Survey explained that he could not do that unless he did a sale and also the procedure 19 for removing his mother’s name and adding his. He said Lands and Survey contacted 20 Father about it. 21 182. To that if Father go to him all 22 he suggestion er wanted to 23 so could 24 have been done for love and affection, he said that they were following the process told 25 to them by Lands and Survey. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 52 of 78 ```
```html 1 183. He said he was a frequent visitor to the property as he would go there after he finished his morning shift at work at about 8am and stay there until 12noon. He said that he was a special child for his father and the only one who took traits from him. 4 184. On one occasion in late September 2014， he overheard Father tell Lindell Wellington that he had turned everything over to him， (the Defendant) and if he had a problem he should go to him. He was the one who chose to call Mr. Bodden， not his father. Father’s choice was for another Justice of the Peace but he had been unable to reach that person. 9 185. He admitted his signature on the Police statement shown to him. He had given this statement to the Police after the 29th January 2015 incident with Lindell Wellington. He denied describing himself in that statement as the caretaker of the property. He said that this was the Police Officer’s interpretation of what had been said and not his actual words. 15 186. He said he locked his siblings out because after the January 29th 2015 incident， Father was traumatized. The Plaintiffs were continually coming to the property and harassing Father to change what he had done. They were still permitted to come there but were not to be left alone with Father. He said that Father did not trust them because of what happened with Mother and what happened when he came out of hospital. 21 187. He had no problems with his Father although he had been distanced from him for about 4-5 years over a disagreement which they had. This was over money which Father had given and kept from him. ```
```html 1 188. He said that he had received permission to file the Affidavits of Mr. Facey and Mr. West but instead of Mr. West he filed the Affidavit of his sister Sharon. This was suggested to him by Mr. West who had been unwilling to file an Affidavit because of a previous altercation with one of the Plaintiffs. He admitted that he had been listening in on the Attorney’s call to his sister that morning25. He said two of his brothers Barrington and Lynval Wellington also had struck their father. 7 8 189. He admitted evicting Sandra Wellington from the property. She owned her own house and her mortgage was finished so he told her she would have to leave. He said their father had tried to get her out of the property but he had signed a document as her guardian. He said he gave her notice and had her utilities disconnected. Sandra had a daughter who had been smoking marijuana on the property and had continued to do so despite his warnings about it. 14 15 190. He said that he is honoring his father’s wishes by not sharing the property. He said that Father said he was giving him the property and he was to ensure that it does not get into the hands of the others, this was not in his Affidavit because he was pressed for time. 16 17 191. He claimed not to have been aware that his father had an outstanding hospital bill at the time of his death for about $24,534.00. The money in two of his father’s accounts could not have settled this bill. He did not make checks as to his father’s debts except to ask him whether he had anything outstanding. 20 21 22 23 192. He ahe too had bCourts with respect to a but hitted. 24 25 28th February 2019 dmitted that been before n assault inc he ident ad been acqu Judgment： Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram： Richards J. Date ：30.04.19 Page 54 of 78 ```
```html 1 EVIDENCE OF NATALIE HOLDER-WELLINGTON 2 3 193. Natalie Holder-Wellington is the wife of the Defendant who was called in support of 4 his case. They have been married for just over seven years. In her Affidavit evidence, 5 she detailed concerns with what she alleges was the lack of care that was taken of her 6 mother in law and the failure to provide her with a helper. 7 8 194. On the material issues in this case, she states that she witnessed the signing of the transfer 9 document and that at no time did Father mention his other children, nor did he mention 10 "trust, oversee, caretaker, apartments/rooms, equal shares" or any other term suggesting 11 entitlement for them or anyone else. She states that when Mr. Bodden asked about the 12 other children, Father "shut him down in no uncertain terms". 13 14 195. She witnessed the incident between Lindell Wellington and her husband on the 29th 15 January 2015 in which Lindell tried to stab her husband and damaged both of their 16 vehicles. She said that after this incident, Father became fearful and told her husband 17 that he did not want to see anyone except for hospital and hospice staff. Her husband 18 installed padlocks on both gates thereafter for father's safety. 19 20 196. In cross examination her evidence was that Father wanted to make an outright transfer 21 to her husband but they explained the process to him as relayed to them by the Lands 22 and Survey Department. She said Father never mentioned her husband as a caretaker for 23 the property. 24 mostly visited his father. 25 26 27 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 55 of 78 ```
Evidence of Cliven Facey
Cliven Facey lived next door to the property and knew Father for over thirty years. He visited him regularly when he was alive, assisted him with repairs and had several conversations with him. He continues to work on the property at the request of the Defendant.
He stated that on one occasion shortly before Father became very ill, in the presence of Mother, the Defendant, his wife and Malio, Father stated that he would not be leaving his property or anything for any children. He said that they kept coming around making requests and telling him what they wanted. He said that his own father never gave him anything and he had to take care of himself from the time that he was eleven years old.
When the Defendant inquired as to when he had ever demanded or requested anything, Father indicated that he was not referring to him. They all tried to tell Father that he should not think that way but Father was adamant that he would rather give his property to charity or the Government and he walked away saying that no one was going to tell him what to do with his property.
Mr. Facey stated: "To show that Mr. Isaac had no intent to give it to the other children, he went to the point where he had a lawyer do up documents on behalf of Lujaney and Malio. Some of the children confronted them and the police were called. ...the children who were present at the time intervened and stopped it." Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 56 of 78
```html 1 202. He said that he had been talking on the phone with Barrington Wellington with whom 2 he speaks regularly when the Defendant and his wife came there. The phone was on 3 speaker and they overheard the conversation. They were standing very close to him. 4 They were talking about the case and Barrington was saying that he was going to testify. 5 203. There was nothing said to him that the Defendant is to have the property as his own as 6 distinct from him having it as a caretaker to take care of everyone. The last conversation 7 with Father was that he had “turned it over” to the Defendant and was not changing his 8 decision. He did not know what Father meant when he said this, He did not question 9 Father and did not get the chance to speak with him thereafter. 10 11 12 EVIDENCE OF LEROY ROBERTS 13 204. Leroy Roberts was a tenant of Father for about six years and left the property about six 14 months after his death. He describes him as a kind man and that some tenants tried to 15 take advantage of him because of his kindness and age. Father mentioned the Defendant 16 to him as the person who would be collecting all the rents and be in charge of the entire 17 property. He complied with this and would speak to the Defendant who is a friend of 18 his, about rent issues. 19 EVIDENCE OF DONALD CAMERON 20 205. Donald Cameron is also a former tenant of Father. He was resident at the property from 21 April r informed lend ant would 22 2014. Fat he im that the Landlord and 23 22 to refer tena him. He De him and 24 remained on the property for some time thereafter. After the rent started being paid to the Defendant, he was at the property more often. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 57 of 78 ```
```html 1 ADDITIONAL EVIDENCE 2 206. In the course of the proceedings the Plaintiffs sought and were granted leave to produce 3 the Affidavit of Barrington Wellington. The Defendant sought leave to produce two 4 further Affidavits, that of Cliven Facey and a Mr. West. Instead he produced the 5 Affidavits of Mr. Facey and his sister Sharon Wellington. The Plaintiffs objected to this 6 with the Plaintiffs’ Counsel indicating that he was still on record for her. Leave was 7 refused pending clarification as to her position. I also noted her estrangement from 8 Father since 2004 and that she was unlikely to be able to give any evidence material to 9 the issue. I noted also the Defendant’s earlier evidence that she had initially agreed to be 10 a party to the proceedings, believing that there was a document from Mr. Bodden as to 11 Father’s wishes and that he, the Defendant had since told her about what was happening 12 in the case, whereupon, she then said according to him, that she could not stay quiet. The 13 Defendant elected to close his case without resolution of her status as a Plaintiff. 14 THE VIDEO EVIDENCE 15 207. Counsel having sought leave in the midst of his closing address, to introduce the video 16 evidence which had been referred to by a number of witnesses and which he had during 17 the course of the trial stated that he was not producing. 18 20 208. He explained that this was very late in the day but relevant and very important to the 21 case. He submitted that the Court had not yet rendered its decision and that he was 22 seek produce the sch he had ea no uder and c ing leave to game videos e said that vi on ament， the vid t which islea 23 whieved 23 other instru eos were ma urer than 24 when he first heard it， albeit that on a higher resolution system there was still going to 25 be some difficulty to listen and really hear what Father is saying. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 58 of 78 ```
```html 1 209. He described the video as a discussion between Father and persons who were there. 2 Lynval Wellington was present and Audrey Wellington made the recording and was 3 asking questions. She kept the recording. It had been mentioned in Mr. Lindell 4 Wellington’s Affidavit although there was no specific mention in Ms. Wellington’s 5 affidavit but she referenced Mr. Lindell Wellington’s Affidavit as being true and correct. 6 7 8 210. I invited the Defendant to view the videos and the matter was adjourned over to the 9 following day. 10 11 211. The Defendant opposed the application although he said that he thought that it assisted 12 his case. He submitted that these were two trimmed videos, which appeared to have been 13 substantially modified. No surroundings were visible, only Father’s face. There was no 14 time on the videos. He said that such evidence can be manipulated in order to eschew 15 the reality. There was undue prejudice and that no independent persons were present and 16 there was a lack of foundation. 17 18 212. In respect of the timing of the application to produce these videos, I noted the importance 19 of the videos to the issue at hand. While I was concerned about the impact on the 20 Defendant and whether there would be any prejudice to him, I was of the view that the 21 prejudice would be greater if there was some allegedly material evidence which went to 22 the central issue in the case which was not considered. I bore in mind that the issues 23 raised by the Defendant would be important not only to admissibility but also to the 24 quest weight if a 25 fore exercise tion to peos these vided a ce. tion of whatny should 26 27 rmie given eos l into evic thered my discreto t to be enten above， I Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 59 of 78 ```
AUDREY WELLINGTON RECALLED
Audrey Wellington was recalled. She said that she recorded the videos at her father’s house on a cell phone. It was after their mother’s death. She was present and junior (Lynval Wellington) was present as well as Sandra. She kept them on her phone and transferred them to a new cell phone. There are only two recordings. She shared the videos with Counsel on the 21st September 2017. She asked him about them and was advised that the audios were not clear.
She produced and identified them as showing her father, her father speaking and her voice. She said that she could not remember how long after Mother died and upon visiting her father that they were taken but that the transfer had already taken place. They came about because upon visiting Father he had several conversations about his property and what he wanted to be done so she made the recordings, so that there would be no misunderstanding. Their purpose in obtaining it was for clarity. It was done after they had been to Lands and Survey in order to get clarity that the property did not belong to the Defendant alone.
In cross examination she said that she chose to video father’s face rather than the entirety of his room because he was covered with a sheet. She said her father was clearly not under duress and the video was not forced. They did not apply fear to him. There was no physical touching of him and they did nothing to him to cause him injury. He was not created before recorded. It was not coerced or that the video odd that his bed. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 60 of 78
```markdown It was suggested to her that it was strange that there was no date on the videos. She said that there is no full length video as that was all she recorded. Once she got clarity she ended the recording. There was no need to record everything. To the suggestion that any reasonable person would have a more entire period of videos, she said that there were personal conversations prior to this which were not relevant. The Defendant was given an opportunity to give further evidence on this aspect. He stated that on his becoming aware of this video, it brought clarity and shed light on the reason why his father requested him to take certain steps. He said that thereafter, his father was constantly traumatized and he (the Defendant) had to stay at the property at nights. There was a sudden change in Father and his whole health just changed rapidly. He said that he can clearly see that Father is in distress in the videos. He knows that there is something wrong in the videos. Father is not speaking freely and the other persons present in the room cannot be seen. Additionally on the videos, Audrey Wellington is telling Father what to say and suggestions are being made to him. I have listened closely to these videos and set out below what can be heard: Transcript from Audiovisual #1 | Audrey: | "... belongs to Delroy and fi him alone" | | --- | --- | | Father: | "It nuh belongs to Delroy alone. Delroy is di only – him come in like a overseer for everything" | | Audrey: | "Right. Sed with all th" | | Father: | "So it's to be shared" | | Audrey: | "Yeah, we children?" | | Father: | "If there's anything there so to be shared." | | End: | End | Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 61 of 78 ```
```markdown # Transcript of Audiovisual #2 **Audrey:** I asked you couple questions in regards to Lindell and that apartment and stuff like that - and Delroy. You assigned Delroy to be in charge of everything? Is just for Delroy himself or what? **Father:** Not for himself (then one word is in audible) **Audrey:** Say again - Not for his self alone? **Father:** No. For everybody. **Audrey:** For everybody. Because according to, to, everything I hear, he is the one assigned to everything – for himself **Father:** (A few words are said but they are inaudible) **End:** End ## THE SUBMISSIONS OF THE PARTIES
In submissions, oral and written the Plaintiffs placed strong reliance on the evidence of Mr. Bodden and argued that the financial document of 29th August 2014 effectively corroborates the Plaintiffs’ case, both were notarized on the 5th September. It was submitted that this document has the hallmarks of a power of attorney and is in the same vein as the transfer which was made. Because the financial documentation bears that connotation, the transfer must also bear the same connotation. It was urged that the evidence of Mr. Bodden is strong enough in the overall context, in conjunction with that document which is consistent with the Plaintiffs’ case. The impression of Mr. Bodden is based on what was happening between the parties. When words of impression are entered into evidence they can cause some degree of uncertainty, but it is for the Court to determine whds that the particular sets of circumstances is important. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 62 of 78 ```
It was also submitted that the evidence of the Defendant was self-serving and disgraceful and of note say the Plaintiffs is that he did not expressly say that Father told him that the property was his. Additionally that it speaks volumes that he and his wife would listen in on a conversation between Barrington Wellington and Mr. Facey. Counsel submitted that this behavior ought to give the Court cause for real concern. The fact that Father gave money to the Defendant’s divorced girlfriend as the Defendant admitted shows that Father was not as rigid as he would like to have us believe. As to the videos, Counsel submitted that they speak for themselves and clearly set out the wishes of Father and go to the core issues which are in question in this particular case. Father says therein that the property is for everybody. The circumstances of the videos have been explained. There is no deliberate attempt to do anything untoward. While it is a question of weight for the Court, the evidence is clear. As to the timing of the videos, it was submitted that both videos show clarity in terms of the intention five months earlier and that they do add to the overall considerations before the Court in determining what the Court makes of what happened as at the date and time of the transfer. Additionally it was submitted that from the videos, Father was not a well man and the essence of communication was between Mr. Bodden, doing the best that he could to communicate with Father. It is sufficiently clear, Counsel urged, that this constructive trust was intended albeit that neither of them saw it in those sorts of express ways. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 63 of 78
```html 1 DEFENDANT'S SUBMISSIONS 2 3 224. In response the Defendant made oral and provided written submissions. He submitted 4 that although his father was physically frail, he had the mental capacity to perform all his 5 transactions. He made a number of points including the vesting rights of survivorship and 6 the following 7 1. “It is an inherent characteristic of joint proprietorship/tenancy that, on the death 8 of any one joint proprietor, the entire co-owned estate ‘survives to’ the surviving 9 joint proprietor. 10 2. This right of survivorship (or ius accrescendi) ensures that the entitlement of each 11 joint tenancy/proprietor is simply extinguished on his death. 12 3. In many instances joint tenancy (with an automatic rule of survivorship) operates 13 as a crude testamentary substitute- the poor man’s will so to speak. Particularly in 14 the context of joint ownership of the family home, survivorship plays a valuable 15 modern role as a simple and cost-effective estate planning device in a country 16 where the majority of the population still make no will. 17 4. Father made absolutely no expression orally/ declaration neither to him nor to 18 the Justice of the Peace (JP) when signing his land transfer, in the presence of 19 himself, his wife and the JP that he was to hold the property for the benefit of 20 all siblings equally. Hence, the property is not on trust. 21 5. The reality is that the entire claim which is rested on Mr. James Bodden (JP) 22 establishes inconsistent evidence. 23 6. During his oral evidence, he was never at any time told orally by Father that the 24 property was to be shared or held on trust for the benefit of others. 25 7. Mr. Bodden went under the ‘impression’, ‘thought’, ‘opinion’ and ‘assumption’; 26 he assumed that he and his father had prior discussions regarding sharing before 27 the premi the transaction 29 8. His fathe 28 he reaches to cond 28 er’s intention 29 he and F 29 nted as is ad 30 discussion 28 discuss 28 as joint-proprietor and by relinquishing all names/persons from his property and 31 bank accounts. Additionally, consenting for him to have Letters of Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 64 of 78 ```
**Administration regarding his mother’s estate. Nothing of the sort was mentioned regarding ‘overseeing’, ‘managing’, ‘trust’ in his presence by his father.**
Hence, it would be inappropriate to apply the reasoning in any of the case laws highlighted by the Plaintiffs’ counsel to this case when no common intention was established to indicate there was a declaration of trust to begin with. It remains, the onus was never met.
The rule requiring that trusts be declared exists to prevent people from unwittingly creating trusts, and the possibility for ‘loose conversations’ (in this case, ‘impression’ to be used. There is, therefore, no coherence in treating ‘impression’ which Mr. Bodden had created in his own conscience as a declaration of trust.
All formalities were complied with regarding all transactions his father performed; which he did voluntarily without undue influence or duress. All decisions he made were finalised by way of confirmation with the various personnel at the entities (Lands and Bank) he spoke with in his (lifetime).”
The Defendant also submitted that Counsel was misleading and giving his own assumption. Mr. Bodden clearly stated at the time of signing, that his father made no vocal statement and that he did not pry. Mr. Bodden assumed that he and Father had conversations prior and agreed that he had limited conversation with Father. Mr. Bodden said that looking at it now he agreed that he did not take the right step. He stated it was just his impression from the transaction. He basically reacted out of what he thought was the situation. He said that he assumed Father wanted everyone to be included. That word assume, comes back to things not told to him. **ASSESSMENT**
I have carefully considered all the evidence and all the submissions made, some of which I have herein. Having as most direct opposition given by evidence used him carefully I was less inclined to believe him where he differed from his siblings. His wife
even less so. I got the impression that she was bent on supporting her husband rather than on being truthful. I took a dim view of the incident with Cliven Facey and noted that while Mr. Facey stated that they both came upon him while he was in the course of a conversation with Barrington Wellington, the Defendant states that it was Mr. Facey who approached him, asked him what was going on and then decided to call Barrington. The Defendant and his wife listened in as Mr. Facey and Barrington Wellington spoke about the case. I thought Mr. Facey to be dishonest and cagey. Unsolicited at the end of his evidence he declared that he did not want the other siblings to have anything against him as they were all friends. I got the sense that he was also anxious to maintain his relationship with the Defendant for whom he continues to work. I thought that the Defendant went to great lengths, as far back as 1993 to recount every ill-judged escapade by his siblings and to paint himself as the only sibling of virtue and thus the likely recipient of his father’s trust and confidence. Yet surprisingly for some time his father was being assisted by his Church companions and a nephew. He himself agreed that this was the case and that he encouraged the others to allow his father to do as he pleased. I preferred the version given by the other siblings that he was distanced from his Father and rarely visited him. This appeared to me to be the truthful version. The picture that emerges of Father came from a number of witnesses but was sometimes inconsistent. Leroy Roberts described him as a good man, a kind hearted, fair and down to earth man. 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Wellington in 2004, the relationship was never the same. This was said to be an issue over the order of service of food and the distance between them continued for some eleven years. The Defendant tried hard to paint the others as financially ill-treating Father but it was clear to me from all the evidence of his siblings, which I accept, that the Defendant was also borrowing moneys from them. I accept the evidence that Father had loaned him money for a dump truck which he had failed to repay and that as a result he was less inclined to visit Father. This does not go directly to the issue but I have considered and do not accept that there was much light of day between the fall from Father’s high moral standards by one side as against the other. I believe Audrey Wellington when she says that none of them lived up to their father’s standards. I do believe the Defendant that he genuinely believes that his mother was ill-treated by his siblings. I hasten to add that I am not concluding whether or not this in fact was the case. Additionally whether or not his father also believed this and turned against the other children shortly after her death, I cannot with confidence so conclude on the available evidence. Certainly, this is what the Defendant asserts. I accept the evidence of Audrey Wellington and Barrington Wellington who I believe to be both witnesses of truth. I accept the evidence of the latter that he it was who on the 28th August 2014 persuaded the Defendant to help his father, and took him into see his father they were go of him. Barrington says to say that thing to take that at that carpoint there ussion about was no disc the prope I do find it strange that within about a week after this, the transfer document was signed and that the Defendant did not say to at least Barrington that his father had added his Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 67 of 78
```html 1 name to the property. He kept it a secret from his siblings until the altercation with 2 Lindell Wellington on the 29th January 2015. It may be said that he did not want to 3 create an incident but it did seem to me that perhaps the better way to settle the matter 4 was to have had all the children present with his father for Father to say what his decision 5 was and that he was not changing it. Instead he locked them out and changed helpers so 6 that they could not build relationships and enter the home in order to speak to Father. 7 233. 8 I viewed the evidence of Lindell Wellington with caution in some respects. When he 9 recounts words used by Father in his Affidavit, I found it difficult to accept that Father 10 said or would have used those particular words. I think it is plain that whatever may have 11 been said by Father, he did not use the words ‘on trust for children’. 12 234. 13 There is conflict as to whether Father always said that the property was for everybody 14 or whether he said in the Defendant’s hearing that he was not leaving anything for “no 15 wicked children.” Having listened and assessed them as witnesses of truth, I prefer the 16 evidence of Audrey Wellington, Lindell Wellington and Barrington Wellington to that 17 of the Defendant. I thought the Defendant not only embellished the stories he told about 18 his siblings but that he is powerfully motivated by his desire to retain the property in 19 which he and his wife now reside. I noted that Audrey Wellington maintains that she has 20 a good job, and owns her own home, she does not need a share of the property and she 21 said so not only in Court but to Father while he was still alive. 22 233. 23 How these points are the deciding factors in this case. The primary issue is 24 whether Father intended at 25 whether Father intended at 26 whether Father intended at Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 68 of 78 ```
```html 1 236. I was concerned to see whether on the Plaintiffs’ case there was any consistency in 2 Father’s declarations of intention. Even if I was inclined to dismiss the evidence given 3 on the Defendant’s case, on the Plaintiffs’ own case, Barrington Wellington stated that:- 4 “That was agreement from longer time that father said property to be left to take 5 care of anybody who need help. 6 First he never want dead left anything to give any family member.....and children 7 don’t treat him good but after he find out that everybody resile back, he then said 8 that...it must leave for every one of the children who want help from it get help, 9 It was both before mother died and after mother died. 10 About two days after the incident with Lujaney and Malio. 11 That is when he said place must left and everybody who want help must get help 12 from it. 13 I used to go out there in the morning time before Delroy come and talk to him and 14 that was when he said that. 15 Me and him and the helper was there when he said it.” 16 17 237. It is clear from this evidence that Father had over the course of time changed his mind 18 as to what he wanted to do with the property. 19 20 238. Then there is the aborted document signing of 28th August 2014 which appeared to 21 suggest that there was an attempt to transfer the property to persons other than the 22 children. Whether this was in fact Father’s intention or something being forced on him 23 is unclear. The Defendant told the others that Father should be allowed to do what he 24 wanted to do with his own property. 25 239. It is clear from this evidence, that the Plaintiffs’ case is 26 240. that all the consistent declarations of intention over the years. 27 28 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 69 of 78 ```
```html 1 240. This background made it all the more important that there be clear evidence at the time of the execution of the transfer. 2 3 4 241. In this respect Mr. Bodden is a significant witness. It was clear to me that he was doing his best to speak the truth as he remembers it. He is an independent witness with no particular attachment to either side. In terms of impartiality, he appears to be the only major witness without an interest to serve in this matter. I entirely accept him as an independent and truthful witness and one of integrity. 9 10 242. Regrettably, I am not able to say that he was very clear as to what took place at the time of the signing. In his oral evidence he varied from his Affidavit evidence and resiled from some of the positive statements which he had made therein. He did say that at the time he gave his Affidavit, the matter was fresher in his mind. What I have to consider is whether from his evidence as a whole there is a sufficiency of evidence to say that Father made his intention sufficiently clear. 15 16 17 243. For much of his evidence Mr. Bodden spoke of the impression which he had from the limited inquiry which he made and from earlier conversations with Father. Those revolved around Father’s pride in his family. Mr. Bodden admitted that he had not been privy to much of the family activity. 20 21 22 244. While he cannot be faulted for the professional way in which he approached and sought to discharge his responsibilities as a Justice of the Peace, it does mean that there is very limit available for to be made The positive material a determinat statements ion which 25 made in the central evidelloy 26 27 Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 70 of 78 ```
```html 1 - He (Father) intimated the wish that his children would be taken care of. 2 - He did say that he wanted to transfer the property so that his son could oversee the property. 4 - When the idea of a will came up, he said that it would be complicated and expensive. 6 - When he (Mr. Bodden) gave his Affidavit, it was true and correct, to his knowledge and belief. Father told him that he wanted to transfer the property so that in the event of his death, Defendant would oversee and manage the property. 10 245. Mr. Bodden spoke of having the impression that sharing had already been discussed. 12 246. The Defendant says that he was present throughout this but he denies that his father said anything about other children at the time. 15 247. At paragraphs 43 and 44 of his written submissions. Counsel on behalf of the Plaintiffs stated:- 17 248. The lack of clarity as to Father’s intentions is encapsulated by Mr. Bodden’s own evi ded: 30 31 32 omplication a v dea came red the whole s when th u 31 nce. He state So I suggest 2 idea of h i. 2 about Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 71 of 78 ```
It is true that he had documents and there were filled up. I realized then that he had given some thought to the seriousness of the matter which I raised and it would be appropriate to proceed. Reason that concerned me is that I saw potential for multiple claimants and no clear succession plan which was my fear. In hindsight I regret now not expressing it because, when the matter came to a head and I was requested to give an affidavit, I realized that I should have raised it with Mr. Wellington’s, the possibility for the family to be spilt as a result of no clear interpretation or no clear hierarchy.”
At one point Mr. Bodden, also said this in answer to the Defendant:- "That is not what I came away with, not impression that I came away with. It is quite plausible that your interpretation could be different from mine."
Mr. Bodden based his impression partly on the fact that he knew Father to have been equally proud of all his children, yet all the family witnesses spoke of his estrangement from Sharon Wellington who rarely visited the property. Also it very much appears that there would have been occasions that Father could hardly have been proud of some of his children. For quite some time, these were not the people to whom he “gravitated” according to all the witnesses. He was close to his Church companions and his nephew.
The transfer took place on the 5th September 2014, shortly after Mother’s passing in August of the same year. The videos produced at best, were made some time after the 29th January 2015, about 5 months after the transfer. This was also after a confrontation between the Defendant and Lon which began in Father’s presence, and in Father’s presence, Lon injured the Defendant and his wife. Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 72 of 78
```html 1 252. In the aftermath of this incident and during the video, Father is confronted by three of 2 his children and is responding to questions asked by them in the face of their obvious 3 concern. There is nothing shown on the videos leading up to the questions and no 4 indication of what went on before those questions were asked. The questions appear to 5 begin abruptly. I am concerned as to the circumstances in which the videos were made, 6 the timing of these recordings and the quality of these recordings. 7 253. Thirdly the Defendant was not present. Was this what he had been told at the time of the 9 transfer? Is this what he understood to have been the basis of the transfer at the time it 10 was made? The videos do not assist with these questions. Equity acts on a person’s 11 conscience. The evidence for the Plaintiffs as to what the Defendant must have known 12 thus takes us back to the evidence of Mr. Bodden. 13 254. Even if I were to put aside any misgivings about these videos, can I be satisfied so that 15 I can safely conclude in law that a declaration made some five months after the transfer 16 was signed reflects what was intended at the date and the time of the transfer. I believe 17 that it would be unsafe to do so. 18 19 255. It was no doubt for good reason as to the likely uncertainties involved that experienced 20 Counsel for the Plaintiff in his written submissions of 10th February 2019, at the start of 21 this case and in his closing submissions of 13th March 2019, placed much emphasis on 22 the eintention wh 23 expression of ich the Plaint 24 in closing he submitted:- Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 73 of 78 ```
```html 1 40. In order to establish an express bargain constructive trust, a claimant must 2 adduce clear evidence that she and the legal owner orally declared 3 themselves in such a way as to make plain their common intention that 4 [the claimant] should have a beneficial interest in the property (per Nourse 5 LJ in Stokes v. Anderson [1991] 1 FLR 391 at 398A). She would need to 6 establish that there was some agreement, arrangement or understanding 7 reached between them that the property was to be shared beneficially 8 (Lloyds Bank v. Rosset [1991] AC 107 at 132E) albeit that it is not 9 necessary that there should have been express agreement as to the size of 10 the share (Oxley v. Hiscock [2004] 3 WLR 715). 11 12 41. If an express common intention can be established, the range of material 13 changes of position or detriment that the court can consider is extremely 14 broad. It is likely, as suggested by Browne- 15 Wilkinson V-C in Grant v. 16 Edwards ([1986] Ch 638 at 657) that any acts done by [the claimant] to 17 her detriment relating to the joint lives of the parties...is sufficient...The 18 acts do not have to be inherently referable to the house 19 256. Lindell Wellington produced certain police statements taken after the January 2015 20 incident between them. One was the statement of PC 115 Ebanks dated 8th June 2015 21 in which she records the Defendant as saying on the 7th February 2015 that since his 22 father's illness he was awarded care take of the premises by his father. PC Ebanks 23 did not provide an Affidavit and was not called to give evidence. At best this is hearsay 24 from Lindell Wellington. However even if I accept that in February 2015, he described 25 himself at that time as the caretaker rather than caretaker and co- owner, I cannot see 26 how this assists in determining the issue at hand. The Defendant had in fact taken on 27 care take responsibilities and on 7th February 2015, he was only a co-owner of the 28 property. 29 30 237. Lindell Wellington also produces a statement of Natalie Holder dated 30th January 2015 31 32 in which she was a sick leave 32 holder dated 3 ment, and as was a sickmitted ture 33 Wellington a statement of Holder dated 30th January ell Wellington statement of Holder dated 30th January 32 ment, and as was a sickmitted ture 34 en to the 35 cross examin Holder- en to the 32 ment, and as was a sickmitted ture 36 she had Pol on the 37 the January 2015 incident. In that statement she referred to her husband as care take Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 74 of 78 ```
```html 1 administrator/co-owner of the property. Again the Plaintiffs sought to suggest that such 2 a description was more consistent with knowledge of a limited role with respect to the 3 property than with sole ownership. 4 5 258. I cannot see how these statements assist the Plaintiffs’ case. Had it been the case that 6 these were made after the death of Father and at the time of sole ownership, there may 7 have been in respect of the first, some faint support that the Defendant was conscious 8 that he was not. 9 10 259. The Defendants’ own statement dated 12th June 2015 was put to him. He identified his 11 signature. In that statement he is recorded as saying that on the 29th January 2015, his 12 father told Lindell Wellington to ask him for a place to stay because he the Defendant 13 was now the caretaker of the property. The question does arise, why would Father defer 14 to the Defendant if the property was also to belong to Lindell Wellington? Why did 15 Father not say that the property belongs to Lindell Wellington as well, so he is to get 16 what he wants? In referring to the Defendant as a caretaker was Father saying that he 17 was no more than this? On one view the Defendant was not then the sole owner of the 18 property and was in fact a caretaker of it. In light of all the evidence, I do not think that 19 the use of the word caretaker, is conclusive as inevitably having the meaning or bearing 20 the interpretation that the property was held on trust and was to the shared for all the 21 children. 22 24 dan oss exam 23 60. The lo point to the that he vnt s. In hisina 24 Plaintiffs also Defen Defeat Father seinen the proposition the 25 Father did not explain to him that he wanted him to have the property. He just had the Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 75 of 78 ```
```html 1 document presented to him and explained that he wanted to get this done and told him 2 to go to Lands and Survey Department. He did say that the process was explained to 3 Father and the outcome and that Father’s wish is reflected in the document. Additionally 4 it appears that shortly thereafter Father told the tenants that the Defendant was now in 5 charge. 6 261. I find that the entirety of the evidence lead or relied on by the Plaintiffs in proof of their 8 case to be tenuous and unclear. Weighing heavily is the view that I have taken that the 9 oral evidence of Mr. Bodden was not strong and significantly reduced the import of his 10 Affidavit evidence. 12 262. There is a material difference between a property which is to be held in trust and 13 beneficially owned by others so that it may be transferred into the names of those others 14 and property which is meant to be held by one person and to be used to help others if 15 they need help. This latter scenario was the evidence given by Barrington Wellington. 17 263. I note that Father must have known the effects of what he was doing. I accept that he 18 was advised of the process and would have known that on his wife’s death he (himself) 19 became the sole owner of the property. I accept Mr. Bodden’ evidence that Father was 20 understanding what was happening on the day that the transfer was executed. Mr. 21 Bodden raised with Father the possibility of a will. Father declined to consider this route. 22 Regrnot here witdence. Unfor ntunately what a nelncertain state view is o m 23 ettably he ish us to give at is left behind which in esse evind is 23 lous and u of affaimy ore than 24 speculation and pulling tiny strands of evidence from various statements, as to what 25 Father’s intentions were on the day he signed the transfer document and what he must Judgment: Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram: Richards J. Date: 30.04.19 Page 76 of 78 ```
```html 1 have meant. He leaves the Plaintiffs to invite this Court to infer what must have been 2 said to the Defendant in the absence of his other siblings and behind closed doors. That 3 is not an invitation which I can accept. 4 264. The fact that it is strange or surprising that he would have chosen the Defendant, who 6 was not particularly close to him and who had borrowed monies from his parents which 7 he had not repaid， cannot amount to positive evidence that Father must therefore have 8 265. At paragraph 37 of his written submissions， Counsel on behalf of the Plaintiffs submitted 9 as follows： 10 11 In order to establish that the property is held on trust， the key elements 12 of a constructive trust must be established. These are broadly threefold： 13 (a) “bargain” (or common intention) 14 (b) “change of position” (or detrimental reliance) 15 (c) “equitable fraud” (or unconscionable denial of rights)。” 17 266. I have not in the course of this judgment considered the latter two elements in any detail. 18 I will say that I consider that it is unlikely that these could possibly be established on the 19 available evidence. There is no evidence about any of the children contributing 20 financially to the property or taking any action on the basis that they would inherit the 21 property. I have not gone on to detail the considerations because my view is that the 22 Plaintiffs’ case gets into difficulty at the first hurdle. 23 24 267. I have given anxious consideration to this case as I very much appreciate the import of it for y. legal prin ove the 25 all the famil guid ed by th and the av 26 e able case. My vie evidencetiff rove the 27 28 Judgment：Cause G 0005/2016 Wellington & Ors. v. Delroy Wellington Coram：Richards J. Date：30.04.19 Page 77 of 78 ```
```html 1 268. For the reasons set out above，I am not satisfied on a balance of probabilities that the 2 Plaintiffs have established their case that the property is held on a constructive trust for 3 them and I decline to make the declaratory orders sought. 4 5 269. The Plaintiffs have been represented by able and experienced Counsel and I thank him 6 for the way he has conducted this case and the legal research which he undertook. I thank 7 the Defendant also for his written submissions and the research which he undertook in 8 respect of this case. 9 10 11 Dated this the 30th April 2019 12 13 Honourable Justice Cheryll Richards Q.C. 14 Judge of the Grand Court 15