Between Meldine Powell (by her Guardian Etta Lou Robinson) Plaintiff v Randy McLean Alfred McLean (Administrators of the Estate of Alfred Lawrence Powell) Respondents
| Jurisdiction | Cayman Islands |
| Judge | Mrs. Justice Margaret Ramsay-Hale |
| Judgment Date | 30 December 2021 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. G 216 of 2020 |
Hon. Mrs. Justice Margaret Ramsay-Hale
CAUSE NO. G 216 of 2020
(Probate & Administration 107 of 2005)
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Administration — Application to remove personal representatives of an Intestate Estate on ground appointment obtained by fraud — s 8 of the Succession Act — Probate action to be commenced by Writ—Grand Court Rules Order 5 (2) — Probate and Administration Rules
Succession — Intestacy — Statutory trust for sale arising on intestacy — Whether defendants entitled on intestacy and holding land as trustees — Definition of child of the Intestate — ss29 and 30 (c) of the Succession Act (2006 Revision — Status of Children Act 2003 — s 35 (3) The Succession Act 1975 (Law 18 of 1975)
Land Law — Land Adjudication Act — Land registered in the Crown as unclaimed land — Whether held on trust for purchaser in possession
Land Law — inter vivos gifts of real property — Whether valid gift of land made to defendants — Milroy v Lord — Equity will not perfect an imperfect gift
Limitation of Actions — Succession — Intestacy — Adverse possession — Application of Limitation Act to equitable interests in land — Whether claim for rectification statute-barred — When right of action accrues — Whether defendants acquiring title by adverse possession — Whether grant of Letters of Administration revived Estate's Title — Doctrine of relation back — ss 19,20,24,27 and 31 of the Limitation Act
Succession — Limitation of Actions — Claim for rectification of Register — Whether vesting of Land in the Estate by Crown revived Estate's title — s.23 Limitation Act
Mr. Clayton Phuran, Attorney-at-Law for the Plaintiff
Mr. Crister Brady Attorney at Law for the Respondents
The Plaintiff in this matter is Meldine Powell, who appears by her daughter and Guardian, Etta Lou Robinson. Ms. Powell is the daughter of Alfred Lawrence Powell, deceased, (“Mr. Powell”) and his wife, Pearlithal, also deceased. The Defendants, Randy McLean and Alfred McLean, are her half-brothers on her father's side. They were appointed administrators of Mr. Powell's estate (“the Estate”) by the Court on 15 September 2005 in an application bearing cause number P 107 of 2005.
The Estate is comprised of some 36 acres of land (“the Land”) in Registration Section Midland East Block 58A, Parcels 11, 40 and 41. Parcel 11 is registered in the names of the Defendants as joint proprietors while Parcels 40 and 41 are registered in the names of the Defendants and their siblings of the whole blood as tenants in common in equal shares.
On 26 October 2020, by ordinary Summons filed in P 107 of 2005, the Plaintiff commenced proceedings to remove the Defendants as administrators of the Estate pursuant to section 8 of the Succession Act and appoint the Guardian or another as administrator in their place. The Summons also sought, among other things, an order to rectify the Land Register pursuant to section 140 of the Registered Land Act, inter alia, to cancel or amend the registration of the Defendants and their siblings as proprietors of Parcels 11, 40 and 41 and restore title to all the Land to the Estate.
At the first hearing of the matter on 6 November 2020, the Court observed that the application, properly construed, was a contentious probate action as defined in the Probate and Administration Rules 1 which must be commenced by way of Writ pursuant to Grand Court Rules Order 5 r2 (e). Further, and in any event, the Plaintiff alleged, in her supporting affidavit, that the Defendants transferred the Land in the Estate to themselves in fraudulent breach of trust. Order 5 r 2 (b) provides that where any claim is based on an allegation of fraud, the claim should be commenced by way of Writ.
I note here that because the application was originally issued as a Summons in a pending cause, it was not filed by the Clerk of Court as an originating process and given a Cause Number as provided for by Order 5 r 5. This is an irregularity in the process which must be cured by the Plaintiff.
Mr. Brady, who appears for the Defendants, made an in limine (and, as it transpired, unfiled) application to strike out the Summons as an abuse of process on the ground that it raised the same issues and sought the same relief as in Cause No. G 282 of 2007 (“G 282 of 2007”) which had been struck out by the Hon. Chief Justice on 9 May 2019. Noting that Mr. Phuran, on behalf of the Plaintiff, had filed written submissions on the question of whether the action was an abuse of process, the Court invited Mr. Brady to file written submissions and adjourned the matter to 1 December 2020.
On 1 December 2020, the Court, having considered further submissions by Counsel, determined that before any interlocutory application could be decided, the best course would be for the claim to be fully particularized. The Court ordered that the matter be continued as if begun by Writ and directed the parties to agree any further directions necessary for the conduct of the trial or the hearing of any interlocutory applications. The proceedings were then adjourned generally.
The Order was not perfected. A Statement of Claim was filed by the Plaintiff on 26 January 2021 but no Defence was filed by the Defendants. In exercise of its case management powers, the Court, on its own motion, relisted the matter for 28 April 2021. The Defendants' filed their Defence the day before the hearing along with a joint affidavit in lieu of witness statements. No point was taken by Mr. Phuran about the late filing of the Defence. Indeed, the parties were anxious to proceed with the matter to save costs and it was agreed that all matters would be resolved in a rolled up hearing, including the application to strike the claim as an abuse of process.
Ten children were born within the marriage of Mr. Powell and his wife, Pearlitha: the Plaintiff, Meldine, Astor, Vintris, Annistine, Leroy, Arlain, Roylin, Macy, Murphy and Byron. Although the marriage persisted, Mr. Powell and his wife ceased to cohabit as man and wife at a date unknown. He went on to establish a relationship with Ms. Lurline McLean with whom he had seven more children. The Defendants, Alfred and Randy McLean, are two of the seven.
According to copy deeds which were obtained by the Defendants from the National Archives, Mr. Powell purchased a parcel of land in an area of Frank Sound then known as ‘Munk Cabbage’ from an Albert Levy of Bodden Town on 28 December 1918 for the sum of £7. Another parcel was purchased from one Sarah McCoy of Bodden Town for £7 on 19 November 1924. A third parcel was purchased from James Levy and his wife Isabelle for £25 on 8 March 1933 (“the Land”). Mr. Powell lived on the Land in Frank Sound with Ms. McLean where they raised their family together and he farmed the Land for as long as he was able. The Defendants knew the land intimately as they were regularly taken along the full perimeter of the lands by their father, and shown the boundary markers in the early mornings on their way to the farmlands.
The Intestate died at the age of 96. The Defendants remained in occupation of the Land and continued to farm it after his death.
The system of land registration commenced in the Cayman Islands in the 1970's. The public was invited to make a claim to their land during the land adjudication process which was established by the Land Adjudication Act (1971). Property interests and boundaries which were accepted by the adjudicators were recorded in the Land Register. A new register was opened for every parcel shown on the Registry map. Where no claim was made or where a claim was not accepted, the land in question was adjudicated Crown Land.
Mr. Powell never made an application to register the land he had acquired in Frank Sound. In consequence of that the Land, which was parcellated and registered as Midland East Block 58A, parcels 11, 40 and 41, was adjudicated Crown Land.
In 1989, Mr. Powell executed a document which was witnessed by the late Ronald McLean, JP of East End. The document states as follows:
“TO WHOM IT MAY CONCERN;
I, LAWRENCE ALFRED POWELL, INTEND TO CLAIM MY PORTION OF LAND BETWEEN FRANK SOUND AND NORTH SIDE BETTER KNOWN AS ‘MUNKCABBAGE’ BLOCK MIDLAND EAST, PARCELS 40 AND 41.
FURTHERMORE, I INTEND TO REGISTER THE SAID PARCELS IN MY NAME AND, SUBSEQUENTLY, TO TRANSFER THE ENTIRE CLAIM TO MY TWO SONS, TO BE SHARED EQUALLY BETWEEN THEM, NAMELY ALFRED NEVILLE MCLEAN AND RANDY HOWARD MCLEAN.”
In 2000, with the assistance of their attorneys, Peter Polack and Co., the Defendants applied to then Governor Peter Smith CBE for the transfer of the Land to them personally on the ground that their father had gifted it to them. That application was denied but after 5 years of pursuit by the Defendants, the Governor in Cabinet announced that it was intended to vest the land formerly deemed Crown Land into the Estate of Alfred Lawrence. The Notice was gazetted on 8 February 2005.
The Defendants, relying on legal advice, applied for a grant of Letters of Administration in the Estate on 18 August 2005. In their affidavit in support of the grant, the Defendants acknowledged that their father was still married at the date of his death, that their father and his wife had ten ‘lawful’ children and that he and his brothers and sisters were his illegitimate children. They asserted that a majority of their father's lawful children had consented to their application and that those who consented had renounced any interest in the Estate. The application was accompanied by a Deed of Consent of Beneficiaries and Renunciation of Beneficiaries signed...
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