Smellie CJ
IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO. 477 OF 2010 BETWEEN ESTATE MARCUS EDGAR THOMPSON (by Administratrix Joan Watler) PLAINTIFF AND ALFRED NEWTON SOLOMON DEFENDANT IN CHAMBERS AS OPEN COURT BEFORE THE HON. ANTHONY SMELLIE, CHIEF JUSTICE THE 10TH TO 14TH MARCH; 17TH MARCH AND 28TH APRIL, 2014 APPEARANCES: Mr. James Kennedy of Samson and McGrath for the Plaintiff Mr. Delroy Murray of Murray and Westerburg for the Defendant Transfer inter vivos; whether transferor, later deceased, acted under undue influence
His house is located at Bodden Town (registered as Block 44B Parcel 212, “the house”).
The bank accounts comprised certificates of deposit and a savings account at Scotia Bank and at First Caribbean International Bank. At the time of his death the accounts together contained approximately CI$207,000.00.
The Plaintiff denies that there was the asserted close relationship between MET and ANS.
She avers in her statement of claim that all funds held in the bank accounts were placed in them by MET and that ANS was added to the accounts as joint signatory only in order to assist with the financial affairs of MET and that accordingly, the bank funds are held by ANS on resulting trust for the estate of MET.
She also avers that the house is
relationship and dealings between them was based upon an implicit trust and understanding between them that ANS would take care of MET by seeing to MET’s welfare and expenses for as long as MET lived and any surplus remaining from MET’s assets when he passed, would belong to ANS. That MET never once mentioned to him that he had any children and during their lifelong relationship, he never observed any such relationship himself and never met anyone claiming to be a child of MET until literally days before MET died. Then it was that he was confronted by the Plaintiff and her brother Shelby Watler for the first time, both claiming to be MET’s children and guardians.
These diametrically opposed accounts of the relational framework of MET’s life set the context for the factual inquiry that this trial involves. But improbable and starkly opposed though the accounts might seem in the
“We grew up in my grandmother’s house on Cumber Avenue in Bodden Town”, she stated. “Our home was a few hundred yards away from my father’s home. My father was a seaman and when we were growing up he was off at sea for long periods of time. Generally he was away for twelve months at a time and then would come home for three months before leaving again. This continued until the early 1980’s when he stopped going to sea and took a job with the government as a garbage truck driver.” Her narrative continued: “My father was a very quiet man and due to his travelling we did not see him for long periods but we all got on well with him and I would have considered that we all had a good relationship with him. Shelby would have been the closest to him of his children as
She continued that she had never heard of her father speak of ANS and “did not know that he had any relationship with my father whatsoever until shortly before his death”.
In support of the evidence of her relationship with MET, she produced a copy of a marriage certificate of her youngest sister Cynthia Velene on which his name appears as her father. Photographs of the wedding show him walking the bride down the aisle and otherwise in pride of place, as a prominent member of the wedding party.
There is other evidence in the case that inferentially supports her claim to this father/daughter relationship with MET, including a hospital record in which he is recorded as having declared during a hospital visit in February 2007 that he had four (4) children.
While the Plaintiff’s claim does not
The relationship between MET and those claiming under his estate is said by them to be important to the resolution of these questions. They assert that not only are they his children, but that he was also close to them and wished and intended to benefit them. The evidence was, however, far from consistently supportive of their claim. This includes in telling ways, the evidence given by the Plaintiff herself under cross-examination about here contact with MET at crucial times as shown in the following exchanges: “Q: Did you know much about (MET’s) illness? A: I know that my father was a diabetic and that he was on medication. I think I knew about this when my mother visited the clinic at Bodden Town. She met him there. She reported that she had seen my father and we were talking about his illness. On one
diagnosis not confirmed until after a subsequent visit to the Mount Sinai Hospital in Miami, Florida on 23 March 2009.
She then admitted under cross-examination, that she did not definitely know of MET’s condition until she saw a copy of his medical records some months later in July 2009, although “we had suspected because of his weight loss”.
While she sought to explain this lack of knowledge of MET’s condition as being due to ANS’s instructions to the doctors not to disclose any information to her, she acknowledged that she had made no contact with MET nor assisted with any of the arrangements for his care and treatment and that ANS it was who had arranged and accompanied MET on his various trips overseas for medical treatment. When pressed under cross-examination, she accepted that ANS
She testified that she had made this search of the Land Register in April 2009, her “concerns” over the newly formed relationship between ANS and her father having been aroused. However, when confronted in Court with the transfer document, which although dated 31 March 2009, showed that registration of the transfer did not take place until 15th May 2009, her response was that she was no longer sure that it was in April 2009 that she had checked the land register and could no longer say what had caused her in the first place to check the register.
In her witness statement, she also cites the transfer of her father’s house to ANS as her reason for approaching one of MET’s doctor’s – Dr. Ebanks
Against this background and so without having acquired from his doctors any knowledge of the real nature of MET’s illness, the Plaintiff resolved to have him removed from his home and taken, not to CTMH where she was aware he had been receiving treatment, but to the George Town Hospital (GTH). This she did with the help of the Emergency Medical Team (EMT) and with the intervention of the police (who were required by her to respond to the Guardianship Order) on the 10th July 2009. MET had been at his home in the care of Marlene White who testified that she had been hired by ANS and MET to care for MET, after he had returned home from treatment at the Mount Sinai Hospital in Miami.
While the Plaintiff’s explanation for this drastic action was that she
MET did not return to his home but remained at the GTH where he died 10 days later. It is a sad circumstance of this case that this appears to have taken place against his wishes.
Evidence in support of the Plaintiff’s case was given by Mary Lou Dixon who claims to be a second cousin of the Plaintiff and a first cousin of MET. Ms. Dixon claims to have enjoyed a very close relationship with MET. She testified to having seen him in person or to having spoken to him by telephone “just about every day”. She said that she attended to all of his household chores for him, seeing to his personal affairs as well, including on several occasions doing his banking for him. Specifically, she claimed to have arranged with “the bank” for the renewal of his fixed deposits and not only had she never
had formed the impression that this was ANS already improving the house (presumably with MET’s money) for his own benefit. She also came to understand that ANS had been taking MET for treatment overseas but did not know how this came about.
Having been present with the Plaintiff and Shelby Watler on the 7th July 2009 when MET was removed from his home to the GTH, Ms. Dixon supported the Plaintiff’s account of the reason for this, testifying that they had been denied access to MET by “the helper” and were very concerned that he was not being properly cared for. This she said was a result of ANS having prevented them from getting information from the doctors at CTMH about MET’s condition.
In cross-examination this witness came to admit, that despite her own
evidence as to the nature of the relationship either between herself and MET or as to that between ANS and MET.
Shelby Watler also testified in support of the Plaintiff’s case and in so doing, spoke not only of a paternal relationship between the Plaintiff and MET but of his own such relationship with MET as well. To substantiate this, he described a very close bond with MET which developed after they had both retired from going to sea and returned to live permanently at Bodden Town. In particular, he spoke of many fishing trips in MET’s boat and insisted that during not even one of those was ANS invited to go along. Most of the time he and MET fished with Daniel Minzett, he said, as “the three of us were together on weekends”.
“In all my years of knowing my
Indeed, Shelby Watler fared no better than did Mary Lou Dixon under cross-examination. Apart from becoming very hesitant and vague in his answers, he also contradicted himself in telling ways. For instance, while in his statement he gave the impression that he went fishing with MET on the weekly basis, as often as twice per week, in answer to the question “when was the last time?”, he said “when he really got sick we could not go” and when pressed for a more specific answer, that “I think it was in January 2009”.
He wrote in his statement of first learning of MET’s illness in January 2009 during a visit that he, Mary Lou Dixon and “a good friend of [MET’s] one Adrian Watler (now deceased)” paid to
between MET and ANS although he knew of the friendship between MET and ANS’s Aunt Lee Lee. He was surprised to learn of MET having entrusted ANS with his assets, especially because he knew MET to have been “a very private man who did not take readily to strangers”. He never saw MET in the company of ANS and never once did ANS go fishing with them.
Here too, a different picture emerged under cross-examination. Despite the close friendship avowed with MET, this witness could not remember the date nor even the year MET died. He had not paid him a single visit while he was in the hospital here in Grand Cayman and could not remember about when it was that MET had become ill. “After (MET) became ill I saw him once or twice around Bodden Town and I attended his funeral
relationship which started when ANS was a young boy growing up in Bodden Town, and one which grew and strengthened as ANS became a man and lasted until the day MET died.
A compelling narrative, which I accept as true and accurate, came from Alfred Henry Solomon’s statement which he affirmed on oath from the witness box: “1. I was born on the 15th November 1937 and am the father of the Defendant in these proceedings.
I had known the deceased, Marcus Thompson, from he was a child until he died. We grew up in the same area. He was a little older than me and his home was about one hundred and fifty feet (150’) from where I lived.
Although I knew the deceased from childhood we did not become friends until we were teenagers
My son, Alfred Newton Solomon, the Defendant in these proceedings, was born on the 7th October 1966.
The deceased’s mother was named Lily Thompson and she was a friend of Caroline Donaldson. Mrs. Lily Thompson would visit Ms. Caroline Donaldson on a regular and daily basis. They would sit and chat about old times. Mrs. Lily Thompson would often play with the Defendant and he in turn became very friendly with and attached to her. Whenever Mrs. Lily Thompson came over to visit Ms. Caroline Donaldson my son, the Defendant, would chase after her as she made her way home, where the deceased lived. Marcus Thompson took a liking to my son and a strong friendship developed between them. In many ways the deceased was like a godfather to the Defendant, who, as he grew,
to provide this assistance up until just before he went overseas for his medical treatment.
I am aware that after my sister went to live with her sister that my son and daughter had my daughter’s helper assist in looking after the deceased and that as the deceased became more ill my son, the Defendant, employed another person to live in with the deceased and look after him.
Throughout the years I have known the deceased he never told me that the Plaintiffs were his children or that he had children.
That it is to my knowledge that when the deceased became ill that it was the Defendant who took him to see the doctors and who took him overseas when he needed medical attention.
I would visit the deceased at the home of my son or at his home during his period of illness and I was also present at
It was the Plaintiffs and the Police who forced the EMT’s to take Marcus Thompson from the home to the Hospital. Marcus Thompson resisted the attempt to remove him from the home and they had to forcefully lift him off the bed in the sheet that he was laying on and take him away.
I visited my friend, Marcus Thompson at the George Town Hospital and talked with him before he died."
The picture of the close and lasting relationship between ANS and MET emerging from that narrative of ANS’s father was confirmed by the evidence of Nellie Solomon, ANS’s wife and that of her sister Joyce Seymour. Both women had come to know MET as a constant figure in ANS’s life and from their respective relationships as wife and sister-in-law of ANS, had come to know and regard MET
account holder (with MET)". This, she explained, came about (as confirmed by ANS in his testimony) when she was asked by ANS to collect money from the bank to make the payments. As to the transfer of MET’s house to ANS, she testified that she was unaware that it had happened until informed by ANS that MET had transferred the property to him and that he was going to register it.
Over the course of the 14 years or so that she had known MET, she had never heard him speak of having any children. Although she may have come across the Plaintiff in and around Bodden Town, she did not know of any relationship between her and MET and could recall meeting Shelby Watler only once and this was at the GTH when MET was admitted there.
Joyce Seymour for her
became more frequent immediately following the birth of Kimberley as both Ms. Josie and Ms. Lee Lee were quite fond of her and she in turn became quite fond of them. During my visits to the home of Ms. Josie and Ms. Lee Lee, I also observed that there was a closely knit bond between Newton Solomon and Marcus Thompson. Both Ms. Lee Lee and Marcus Thompson treated Newton Solomon as though he was their child”. Having herself become married in 1997, her visits to Ms. Lee Lee’s home, she said, became less frequent, although she kept in touch regularly by telephone. Kimberley, she said, who remains close to her father, graduated from high school and went to college in Tampa and through her it was that she heard of MET’s trips to Tampa with ANS: “Kimberley
ANS’s father according to her: “I was very surprised and remarked to Caroline that I had thought that MET was his father”. As an example of the closeness of the relationship between ANS and MET she described how ANS, who is a commercial pilot, “…would always come by (MET’s) house on the mornings that he was flying to check on (him) to ensure that he was alright and to inform him that he was leaving and when he would be back. Sometimes (ANS) would stay overnight when he worked and he would always telephone to check on (MET) at such times. (MET) referred to (ANS) as “Figgie” and he was the only person I heard refer to him by that name.”
This witness had also become involved as the attesting witness to the execution of the documents
She said she remained there awhile that evening talking with MET as she usually did before returning to Caroline’s home, and that MET, although she was aware that he had been ill, appeared quite well and was fully aware of what he was doing. In fact, he continued to appear to be in good health, she said, “until around sometime in April when he got really ill.” At no time during her earlier dealings with MET or on the occasion of the execution of the documents, did she hear or observe anything about him that caused her to think that anything was wrong with him mentally: “He had a good power of recall and apart from the ill-health with his blood sugar levels he appeared quite healthy to me and had a great power of recall of things he had done, places he had been and people he had met”. 62
officers. She was frightened and surprised by the presence of the police and could see that MET was upset by the continuous pounding on the door. She telephoned ANS who was away for work, explained what was happening and he said he would ask his father to “come and sort things out”. Alfred Solomon arrived shortly after and while he was speaking with the persons outside, the ambulance arrived.
On the basis of the “court order” presented by the Plaintiff, the witness said she allowed the EMT staff to examine MET and they spoke to her about his care. They remarked according to the witness, that “apart from his elevated blood-sugar level he was fine”. She showed them the log she kept of her administering his medication three times each day. One of the medications had the effect of temporarily spiking his blood sugar
be his children interacting very little with him” and “apart from two occasions when answering questions posed by the nursing staff, she never heard them refer to MET as their father”. The witness continued that she observed that MET became increasingly withdrawn while at the hospital and refused to eat the meals provided for him there. She went to the hospital each day and stayed with him during visiting hours until he died. ANS visited MET throughout she said, and she observed that “at such times (MET) was at his happiest during his stay at the Hospital leading up to his death.”
Mr. Morris Garcia, attorney-at-law, testified. He said he first became acquainted with MET when he arrived at his offices in George Town on 5th March 2009, accompanied by ANS. When MET said that he wished to engage his
I requested that he provide these instructions in writing. He did so. I received them on or about the 13th March 2009."
Mr. Garcia then presented from his file the original hand written note of those instructions, which, although mentioned in his witness statement of 12th October 2011, was being produced for the first time in Court. No one disputes the authenticity of the note and I am satisfied that it is written in MET’s handwriting and reads: "Dear Mr. Morris Garcia; I, Marcus Edgar Thompson wish to have Newton Solomon conduct all transactions on my behalf as of date. It is also my desire to give to Newton my assets. Please prepare the documents to allow this. Thank you. (Signed) Marcus Edgar Thompson 13 March 2009"
He confirmed that MET executed the documents in his presence and that of the witness Elizabeth Clarke.
According to Mr. Garcia, during his conversations with MET, he had no reason to doubt that he understood what he wanted to do and was in fact doing. At one point in cross-examination, he explained that he had further sought to explain the implications to MET during his first consultation with him on 5th March 2009, by relating the experience he had had of another person who had transferred his home to a person whom he trusted only to find himself ejected from his home and destitute as the result. This was narrated to MET in the context of advising him on the other options open to him other than an outright transfer to ANS. MET’s response, said Mr. Garcia, was “He
and apparent physical frailty had not given him concern about MET’s ability to understand the implications of his instructions, as of that point in time.
He answered that no such concerns had arisen. He explained that a matter of some days after their first meeting on the 5th March 2009 and not having yet received the written instructions, he had enquired after MET with ANS and was told that MET was then in hospital. ANS also said that MET had expressed a wish to see him and so he paid him a visit at CTMH. This, he said, was simply out of compassion and so he discussed no business on that occasion. In fact he felt that he had not yet been formally retained, having not yet been given the written instructions which he had requested. Although hospitalized, MET appeared to be in complete
While in no doubt that MET understood fully the implications of what he was doing, he was mindful that he was, after all, an elderly man. He simply wished to spare him the inconvenience of having to attend again at his offices.
ANS in his testimony earlier in court and Mr. Garcia himself in his witness statement, both stated that Elizabeth Clarke was asked by ANS to witness the execution of the power of attorney document only after Mr. Garcia had arrived at ANS’ home and when it had become apparent that an independent witness was required. Mr. Garcia was therefore also challenged in cross-examination to explain how then did it come about that Elizabeth Clarke’s name had already been typed into the document as witness when it was presented by him to MET at ANS’s home, as indeed is apparent on the face of the document itself
executed the transfer of land and power of attorney documents. Not only did each of them impress me as an honest and reliable witness, significant aspects of the independent evidence in the case also support their accounts. Not least among these is the circumstance revealed from the extensive medical records in the case, that MET, throughout the ensuing months of April, May and June, was able to consult with his doctors, understand and accept their advice and diagnoses and travel (at different times in April and May) under his own steam, although accompanied by ANS, to and from the United States for medical treatment.
Further evidence by Mr. Garcia given under cross-examination and which I accept is also worth noting on this aspect for the sake of completeness. When asked by Mr. Kennedy whether he had made any enquiry of MET why he wished to transfer his assets
certificates of fixed deposits) and Scotiabank (a certificate of deposit). ANS admitted in court to having obtained a net benefit from all the accounts after payment by him of MET’s medical and other expenses, of something in the order of CI$160,000. Bank documents (at Tab 24 page 62 of the Defence discovery bundle) show that he withdrew all the proceeds of the FCIB accounts totaling CI$200,704, on 2nd September 2009.
His evidence in relation to this transaction was that on the basis of his legal and contractual right as joint account holder and on the basis of his understanding reached with MET over the years, he regarded this as his money. In his own words: “The reason for the joint accounts was
“Please accept this letter as your authorization to add Newton Solomon to all accounts in my name. Therefore effective from the date of this letter either Mr. Newton Solomon or I will have full signing authority for any transaction(s) on all my accounts. Below are the two authorized signatories for all accounts: Marcus Edgar Thompson (signed) Or, Newton Solomon (signed) Also, please update your records to show the below contact details for all correspondence for all accounts: Mr. MARCUS EDGAR THOMPSON or NEWTON SOLOMON P.O. Box 205 SAV Grand Cayman, KY1-1501 Cayman Islands Ph: (345)926-0364/927-5845 (cell) (345) 9
officer who signed as attesting witness to MET’s signature (as well as to that of ANS on the document) is not challenged either. It was however, suggested to ANS in cross-examination, that the dating by the bank on 10th March 2009 shows that the document was executed by MET on that date at a time when he was admitted at CTMH and not, as ANS testified, on the 26th February 2009, along with the letter of that date. On this basis, it was also suggested that although the signature appearing on the document is MET’s, he signed when in a very frail state and was unduly influenced by ANS to do so. ANS rejected this, insisting that both documents were submitted to the bank together on the 26th
signed these documents and this is plainly borne out by the terms of the letter of the 26th February 2009, even if taken by itself.
Thus, fully a month before MET became aware that he might have been terminally ill, he is shown to have acted to ensure that ANS would have joint signing authority (including the right of survivorship) over any account of his held with FCIB over which ANS had not yet held such authority. This was a turn of events which was quite consistent with MET’s visit to attorney Mr. Garcia only a week later, seeking to vest his only other significant asset – his house – in ANS, explaining to Mr. Garcia that he reposed his trust in ANS to take care of him.
This, I am satisfied, was not the
This is the assertion of circumstances of undue influence falling within the second category of circumstances recognized by the old case law and later restated and refined by the judges, as justifying intervention by the Court to set aside a gift.
As explained by Cotton LJ in Allcard v Skinner3: "These decisions may be divided into two classes. First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for the purpose; second, where the relations between the donor and donee have, at or shortly before the execution of the gift, been such as to raise a presumption that the donee had influence over the donor. In such a case, the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under
devoting her fortune to it, because at the time when she made very substantial gifts she was subject to the influence of lady superior Skinner, she would have been entitled on leaving the sisterhood to claim the restitution of such amounts of her gifts as were still in the hands of the sisterhood. She was however found to be barred by laches and her acquiescence from doing so.
As Cotton LJ also observed in his judgment, the object of the equitable principle is not to save people from their own folly – there was to be no suggestion that Miss Allcard was foolish to part with her fortune to the sisterhood. Rather, he explained, "the doctrine of undue influence is founded upon (the principle that it is) right and expedient to save people from being victimized by other people" and that it was in this
been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the Defendant abused the influence he acquired in the parties’ relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn” (per Lord Nicholl on behalf of the Court at p.459 paras 14 and 16).
Lord Nicholl went on to explain⁵ that the availability of the rebuttable evidential presumption of undue influence has led to that type of case sometimes being labeled “presumed undue influence”. This, he said, is by way of contrast with cases involving actual pressure or the like, which are labeled “actual undue influence”
person are not normally to be expected. Examples of relationships within this special class are parent and child, guardian and ward, trustee and beneficiary, solicitor and client, and medical advisor and patient. In these cases the law presumes, irrebutably, that one party had influence over the other. The complainant need not prove (that the donor) actually reposed trust and confidence in the other party. It is sufficient for him to prove the existence of the type of relationship (to become entitled to relief unless the donee proves otherwise)".
Here the Plaintiff obviously may not claim that the relationship between ANS and MET came within the special classes identified by Lord Nicholl. The Plaintiff says nonetheless that their relationship was one in which MET had become so frail of body and mind and so dependent upon ANS, that the very substantial
have been used in an endeavour to encapsulate the essence: trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other. None of these descriptions is perfect. None is all embracing. Each has its proper place."
Those being the guiding principles, it follows that my first task is to decide on what was the true nature of the relationship between MET and ANS. Was it one of vulnerability and dependence on the part of MET and ascendancy, domination and control on the part of ANS? If so, did it give rise to a rebuttable evidential presumption of undue influence? And if so, has the presumption been rebutted?
Before turning to answer these questions, I must examine the second limb of the Plaintiff's claim, that of a resulting trust
Likewise in relation to the house, Mr. Kennedy asserts that a resulting trust has presumably arisen from the voluntary transfer by MET to ANS for no real consideration but merely “a peppercorn”.
In this regard, although the point was not expressly taken by Mr. Kennedy, I note that the fact that a transfer has taken place in keeping with the statutory requirements of the Registered Land Law (“RLL”) is not of itself conclusive rebuttal of a possible resulting trust. This appears from section 27 of the RLL: “Every proprietor who has acquired land, a lease or a charge by transfer without valuable consideration shall hold it subject to any unregistered rights or interests subject to which the transferor held it and subject also to the Bankruptcy Law (1997 Revision) and to the winding up
presumption about the intention of a person in making a gratuitous transfer of property; although he has transferred the legal interest, he would generally not intend the transferee to take the property beneficially. The name “resulting” thus describes the effect of the trust in causing the beneficial entitlement to the property to spring back to the person who transferred it and, since it arises by operation of law, it may take effect informally.\footnote{11} In the circumstances of this case, if undue influence is found to have operated upon the mind of MET then it would be *unclear whom he intended to have benefitted* and so a resulting trust would be presumed to have arisen. But with all of that noted, even if a resulting trust could be presumed to have arisen, the question that nonetheless remains is whether any presumption of undue influence
For MET, such it seems, was the impact of his prolonged absences upon his relationships with his children. So loose were the ties that after his return from sea to live in Grand Cayman, his sense of family and affection was not with them but with ANS ("Figgie") and his family. For her part, the Plaintiff was herself unable to lay claim to a strong father/daughter relationship which lasted beyond the early years of her childhood.
Rather, her evidence reveals that her contact with MET while growing up as a child, was far from constant – taking place during his three months of shore leave following his twelve-month absences away at sea. Although she asserts that MET was close to her mother while she and her siblings were growing up, she admitted that "once we were all adults I would
As already mentioned above, this acclaimed lifelong bond is however, quite inconsistent with Shelby Watler’s admittedly minimal contact with MET when MET became ill and his vagueness about the “arrangements” which he claimed to have put in place (involving Mary Lou Dixon) for MET’s medical treatment here and overseas. His account is equally inconsistent with his asserted ignorance of the relationship between MET and ANS, not even being aware, as he said under cross-examination, that after returning from treatments in Tampa (at the Moffitt Cancer Center) and Miami (at Mt. Sinai Hospital); MET had spent several weeks recuperating at ANS’s home.
While his admittedly minimal contact with MET is true (if not, why admit to it?); I do not accept Shelby Watler’s allegation that this
By contrast, MET’s strong feeling of affection and affinity towards “Figgie” and his family, is abundantly clear from the evidence. The early bond between man and boy seems to have been forged around the affections they shared for Ansfirth Solomon – ANS’s “Aunt Lee Lee” – and MET’s common law partner for many years. ANS, as a boy growing up, was favoured by their mutual affection towards him. As Mr. Alfred Solomon and Mitzie Walton Jervis explained, ANS was the apple of their eye and became “like a son” to them. And, as he became a successful man in his own right, ANS came to be seen by them as someone in whom they could repose their trust as well.
His father Mr. Alfred
He (MET) fully understood what a joint account meant.... Throughout his life-time Marcus always told me that he did this to ensure that on his death whatever was in the accounts would pass to me."
ANS went on in his testimony (and at para 31 of his witness statement) to explain that the latter transactions on 26th February 2009 by which he was added to the additional accounts as joint holder, had been arranged by MET himself and without any prompting or suggestion from him. This is evidence that I also accept.
Indeed, on the totality of the evidence in this case, I am satisfied that MET acted throughout in his dealings with his house and his bank accounts, entirely of his own free will, fully understanding the moral and legal implications of his actions and in no
Notwithstanding that he made no contributions to the accounts during MET’s lifetime, ANS succeeded to the entirety of the balances in those accounts as a matter of due operation of law, by survivorship; that being the clear intention of MET\(^{14}\). Costs
Despite my rejection of her claim, it is impossible to conclude that the Plaintiff acted merely out of malice or bad faith in bringing this action. While there was never a declaration of his paternity and no such record of paternity on her registry of birth, it is clear that she genuinely regarded MET as her father and the balance of probabilities weigh heavily in her favour of the existence of that relationship. During the course of her evidence (and from her demeanour in Court) one was even able to sense that she nurtured genuine
Moreover, it would not be appropriate to make an order for costs against the Plaintiff in her personal capacity as she acts as administratrix of MET’s estate which itself has no assets with which to pay costs.
For all these reasons, in the exercise of the discretion I have whether or not to award costs, I order that there shall be no order as to costs. Hon. Anthony Smellie Chief Justice April 28, 2014