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    233 views24 pages

    LAW3106 - Nasrudeen V Nasrudeen

    Uploaded by

    Donette Anthony

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    © All Rights Reserved
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    MERARA 1996 No, 1022 p HUGH COURT OF THE SUPREME COURT OF JUDICATURE OF GUYANA CIVIL. JURISDICTION BPTWEEN: ZAMIN NASRUDEEN personally and as Next Friend of NAREEFA NASRUDEEN Pia ats 7 DOODNAUTH THOMPSON, executor of the ast will and testament of SHFIK MOHAMED NASRUDEEN. Defendant Dee 18, 2009; Mar 5, April 16, May 2L, Aug 12, 1, Oct 13, Now 3, 9, 10, Dee 14,2010; Jan 17 Feb 4, Feb 25, Sept 16, 30, Nov 4, 2011; Feb 13, April 27, Jone 1, 2012: May [4, June 13,28 July 15, Sept), 2013; March 24, 2014 Me. R. Ramkarran, S.C. for the pins Mr. K. Ramjattan, forthe defendant wupGMeNt i GEORGE, R, J: Zamin Nasradeen, the fist named plaintif, and Naseefa Nasrudeen, the second named plaintiff on whose bell she sued, are widow and daughter respectively of Sheik “Mohamed Nasudcen, deceased. The deceased was matted to Soicoda Nasrudeen and had tee children - Sabeena, Sheik Shahabnddeen and Ansari Nasrudcen. Sobeda Nasraleen died in 1975. The deceased subsequently marred the tt named plantif (Mrs. Nastadeen in 1977 and they also had three children ~ Aleesha, Safz and Nareefa Nasmulen, The deceased died on “May 25, 2001 leaving will dated October 15,1994 which provided for his family a follows “IGIVE AND BEQUEATH unto 1. To my three (3) children home by my First Wife SOBEEDA (deceased) namely Saheens’ KHAN, SHAIUBDEEN (sic) NASRUDEEN and SHEIK ANSARI NASRUDEEN, my property siwite at Lot It Strand, New Amstedam, Berbice, Guyana, held by transport No, 198/70 (Berbice, with contracts dated 84.94 and 109.94 w Foganty’s (Guyana) Led oily AIL my house told belongings, Fridge, TV, VCR, Radios, Books, Beds, Suits, Fomiture, Rugs, Kitchen Uteneles (sic), Calinary and Culeres (sic) Washing meaching (sic) Micro-wave Oven, and all other movable property in the house situated at Lot It Si NASRUDEEN, and, New Amsterdam, Berbice, to my wile ZAMIN 5080 and Bedford Motor Truck, Registration No. Goc 3. My rover Motor Car PAA 0 a eld Moe Track, Retain No ce S030 to my son SHAHUBDEEN (ie) NASRUDEEN, with all sp or oa No. with 4. Tomy som SAFRAZ NASRUDEEN, my Mini us Registration No. BEE S141 Contracts to Guyana Flesicity Corporation 5. To my wife ZAMIN. NASRUDEEN and thee chien namely: ALESHA [NASRUDEEN, SAFRAZ NASRUDEEN and NAREEFA NASRUDEEN, my portion ofthe property sited at Lat 1 Stand, New Amsterdam, Hebice, held by transport No. 4404 (Berbice), jointly. All ther assest (i) surance Policy, Bank Accounts et) | eave and bequeath 10 sny wife ZAMIN NASRUDEEN ‘The residue of my property lave and boqueath to my wife ZAMIN NASRUDEEN. My wife ZAMIN NASRUDEEN is ented to remain and enjoy peaceful oecupation for three (3) years on the propety described in Transport No. 198/70 (Berbice) subject fo the eonmets mentioned abo ove, without a ‘pompensation to the beneficiaries entitle othe said peoperty. Al rates and taxes for the immovable, respectively, afler my death rental, payment or ropes, to he paid by the beneficiaries, The plaints" claim thatthe provision made Mrs. Nasrudeen should be entitled to plaintiff, then & minor, in this wil foreach of them is inadequate and that all ora least half of his estate while the second named should be entitled to provision for her maintenance i defendant oppoes the plain’ esis, argng tha We plains have een adequate Brovided for in the will Shahabudeen Nasrudcen, son ofthe decease, tested on behalf of the defence, I can be sai tha it is he whois intrested in disputing the plane’ canes cee ‘executor who now lives overseas has not peticipatd in the tt Let me say from the outst that I have determined thatthe plant are entitle share inthe deceased's estate pursuit tothe provisions of the Family and Depen edants Provision Act, 199, CAUSES OF ACTION and PROCEDURAL ISSUES, The plaintiffs claims were originally in equity only, tho and Dependants' Provision Act, 1990 (FDPA), | wa of the view tht te claims, moreno imino plains coukd not be propety sustained only in equity and that t mould have hor, see 0 Know the extent of the assts ofthe esate 0 tht there ould bes prose ‘ceermintion of the issues berween the patie, {came to this vcw having considered Ue teat ‘Court decision in Gahindea Nar h (Full Ct Appeal No. 4169/1996) [1999. 2000] GLR. 87 In this case the responca, Sukwa sued the ape last wil of his deveased father, claiming a shite of the promissory estoppel given promises which she sid 88 husband and wife. The defendant appealed tothe Full Coun which wade and rulings on preliminary procedural issues which to my mind. have Proceedings in this case, At the Full Curt, Bemard Cl she then nas. pi the Court, ruled thot the aetion brought by the plaintiff could have been defendant had intermedaed with the estate by carying onthe busines, though the Coun he that the judgment at first instance should have been stayed pending the determin ‘Pending action to prove the will of the deceased in solemn form, The Count other beneficiaries who were not before the cour should have been given ther tiven the provisions of the Family lant, Narne, as executor ofthe tate based on the prin the deceased! made to her during thei ples of some observations 8 bearing on the ing the judgment of minained since the ution of a also held that the ight tobe hear, Although the FDPA had been enacted and was i [Narine v Sukwab, (which was filed in 1993) no dou With this legistation in mind. However, itis in the in Narine v Sukh and the claims made by fore, there was no reference to this Actin ubt because the litigation was not commenced context of the issues raised by the Full Court the plaintiffs that diected thatthe plaints 308 consider amending their claim to include a claim wndee the FDPA for under this Act st #8 sulicient to sue the representative of the estate once a grant has been obiained, Therefore any decision would be binding on all beneficiaries even if they have not been joined or given a opportunity to be head. The provisions of the FDPA allow fr a redistribution of « deceased's estate based on the fats presented to the cout in pursuance ofthe elas made, To my mind. claims of this nature should be commenced under the FDPA and aot der the MPPA 1990 38 ‘veurred in Narine v_Sukwah as it specifically provides 9 regime forthe redisisbtion of & Aeceased's estate once the provisions of the Act are salsfied, Further, a noted inthe fats of ah, as would occur in an FDPA seton, the Court halt rely on the statement of ities in onler to determine the assets of the estate for the purposes of adjudication. I is only ifone fll outside the parameters of this Ast that one woul! have to look to equity in order to found an action eg. if he person claiming asa spouse could not laf do so under the Act because either helshe or the deceased was sill legally marred. See eg Re Basham (dec'd) [1987] 1 AIIER 405, an also Wayling v Jones [1995] 2 FLR 1029.) ‘The FDPA permits claims to he made where a person, as provided fr ia ss 2 and 3, alleges that 2 deceased has not or ha adequately povided fr them out oF his or her state whether by will ‘F pursuant to the rules of intestacy ofa combination of the wil an sch rules In aditon, dae to the fact that pursuant to s 6 there must be a grant of representation for an FDP ation tbe filed, this case was put dovn pending the grant being obiained. The grant of probate was ‘biained on March 30, 2012, This grant id been orginally appli! foe by the executor of the deceased's will, but Mrs. Nasrleen Gled a caveat thereto and subsequently fled these ‘proceedings. The executor didnot then pursue obtaining a prant of probate A grant of representation is necessary so that the net assets ofthe estate (pers 2, FDP) could be ascertained in order to allow the court to make an asessient of whether adequate financial provision pusiant to 5 (1) (e) has heen made ant whether there ave sient assets one recistribution, if 90 found, to satisfy the provisions ofthe FDPA and so that Fay awa is made, it canbe implemented bythe representative ofthe estate. applied Re Seale {1948} > AIL [ER 426 where a similar situation occurred whereby an application vas mace unr the then English equivalent of the FDPA — the Inhetitance Provision Act 1938 - hut no grant of representation had been taken ut. In ation the issHe ofthe limitation peri for filing the application arose. Roxburgh 3 dealt with these sss thus “The testator died on Oct. 29, 1946, the summons was taken out on Mar 18, 1947; no representation was granted until May 6, 1947; an! three, the summons was taken ont before probate, Was the application good within s 2 (1) of the Act? The question of construction isnot easy, but I propose to guide myself by two considerations. The fist 1arises from the submission made by counsel that for the purposes of s 2 (1) time bes to fun from the date of the grant of representation, a that therefore an application made before the grant must necessarily he make before the commencement of the petiod of time within which application may he mad and so be a mit. If that constvetion be correct, as far more than six months have now elapsed since the date of the grat, this ‘blunder, if it be a blunder, would be fal to the plant's claim, That any Winner ofthat sort should completely and finally deprive a litigant of recourse to the court ould challenge the foundations of natural justice. That is one principle by which t propose to ‘tide myself, The other is thatthe obvious purpose of this section is ta prevent applications from being made wo late when partis have altered their postion in face of the dispositions made by the testator. It seems 19 me improbable that Parliament ever ‘thought of applications whieh might he made 10 soon." ‘Our equivalent tos 2 (1) is s 6 which provides: 7 after the end of the period of one year from the date o ed is first taken out” ens ning © 26112 fhe Roles othe igh Cour ering coum fr he ates in Mergers sng in an cous an with he isto in the Court ode an aerdet ‘and the positions of the partes in this ease not having been altered, didnot consider e ‘would be an injustice to them to allow the amendment tothe statement of claim to include 2 «lim for celief pursuant to the FDP. In any event, the proton of the statement oF assets and Uiailtes would have been necessary for an adjication of any share that the plaimtffs may be ated to based on equitable principles, for as stated in Noring ¥-Sukwah (supra) the grant Would have been necessary to enforce any judgment of award the court may order. 1 will go "rough the facts ofthis ease ond the decision of the Courts in some detail later FVIDENCE, Mrs. Nastudeen testifies for and on behalf testified that having mit the decease, on his of hetsell and the second named plaintiff. She ‘proposal of mariage she resisted this ashe was ‘uch older than she was = 19 years olde - and had the children. Afr some persusion, she ‘married the decessed on August 8, 1977 at age 22 yea ‘00d financial provision for her. Therefore, cont that he woul lave all his property to her, To my mind would sand to teason, given te Person portrayed in the evidence that he mas kel to her given thst he had three children wh were liv ‘ut that he also wanted to provide forthe children Mrs, Nasradeen went to live with the deceased ler he hud promised be wonld make to her pleadings, the deceased. did not say Vdd no say he would leave all his property ing with him. The provisions inthe will bear ‘of his first marrage. Aer they got m fan his children at what famity property at 1 Strand New Amsterdam. ‘This property had bec ‘deceased had lived there with his family prior to his triage to Ms, Neve ried, the desribed as the sxcquited in 1970. The vaeen, ‘The deceased was a businessinan who had many business enterprises loth and clothing store, cinema which he dl nat opeate lor very Parlour hich Mrs. Nasrudeen managed exclusively. Incuune fiom the ‘used 10 operate the businesses, fn ‘ppcars fiom the evidence that at th ‘retvon any longer except for the renal of Lot 12 Stand to Scolabank and pose no ucking business, hough evidence onthe lari ited. They 11 Strand which was established in 1993 an Mrs. Nasudeen e She testified that this was her business. She was not shalen ‘mentioned in the statement of assets an liabilities, Ms Nexen ems her small income of $20,000 ~ $25,000 per month ana teucking, motor spares Fong and an ice cream tious businesses was nee loans and maintain the properties and household I also operated a travel agency at online to operate it uno now nged about this and it was not ten sui that this business only sometimes less. She latce sid that it cams $40,000 out of which she pays her employee $3500, She also sad $130,000 per year fo the National Insurance Scheme for he ‘$12,500 per month, Although she was not eros-examined not ad up, I donot believe that Mis. Nasrueen was being tl about her earings at expenses in relation to the tel agency; an she has tought no documentation ts suppet ng contentions inthis sega that she pays Fond her employee. This amounts shout the travel agency the figures ‘Over the years the various properties wete bou the deceased alone or jointly and sod, exce ep for Lots 11 end 12 Strand, The deceased ght the property at 12 Strand which vas registered in Mrs, Nasrudcen's joimily on which he coastrcted for and rented large mortgage with ScotaBank which stood tthe tht and put into the name of Mrs. Nasrdeen or and the deceased’s names 4 buikling to ScotiBank, This property had a a1 $45 milion a the ime of the deceased's death, of testyng the property derived a etl of $916.00 with par of thi sm oun 4 towards the mortgage instalment in the sum $646,228 per month. After the end of the taking of Ccidence and with the concurence of both counsel, the current status of the morteage Ws [bceriained. This morgage is apparently now substantially liquidated. Mrs. Nasrudeen said that from the balance of the rent she pwid rates and taxes income tx, fre insurance and for the maintenance of the building, leaving her with a sum of about $30,000 to $40,000 per month for hher personal expenses. While this evidence was not challenged in crossexamination, Mts [Nasradeen didnot produce any documentary evidence to substantiate the sums she had to pay i relation to the building. 1 do nt believe her evidence i relation to the balance of $30,000 ‘$40,000 which she says remiss from the rental 19 Scotiabank. Given her evidence regarding het ceamings from the travel ageney, I got the impression that Mrs. Nasnadeen was trying to minimise the financial resources to which she has access. She also sid that at the time of his death the ‘deceased had an overdraft with the bak inthe sum of $499,540 which she paid off This was not challenge. Mrs, Nasrudeen said thit Lot 12 is now bers. Paruant tothe rules of survivorship, the 12 Strand property would vest in Mrs, Nasnadeen solely unless the provisions of s 17 ofthe FDPA apply ‘Section 11 (1) sates: “Where a deceased person was immediately before his death beneficially eniled 10 a joint tenancy of any property, then if before the end of the period of one year from the date on which representation with espe to the estate ofthe deceased was first taken out, ‘an application is made for an order under section 4, the Court for the purpose of facilitating the making of financial provision for the applicant under this Act may order thatthe deceased's severable share of that property, at the value thereof immediately before his death, shall, to such extent as appears to the Court to be just in all the ireumstances of the ease, he treated forthe purpose ofthis Actas prt ofthe net estate of, the decease.” (Emphasis mine.) In the particular cumstances of this ease by which the FDPA has come to be applied, the pleadings and evidence led, including the statement of ascets and ibis, indicate that the parties treated the deceased's share of Lot 12 as being a part of his estat. {have conelidd that

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