Marian Louise Norford (Administratrix of the Estate of Mabel Norford, deceased Claimant v St Christopher-Nevis-Anguilla National Bank Ltd Defendant [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Lanns, M |
| Judgment Date | 12 January 2012 |
| Judgment citation (vLex) | [2012] ECSC J0112-2 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | CLAIM NO SKBHCV 2010/0244 |
| Date | 12 January 2012 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO SKBHCV 2010/0244
In the year 1976, Mable Norford, late of Ponds Pasture, Basseterre opened a bank account with the St Kitts-Nevis-Anguilla National Bank. She was the only authorised signatory for the account. She alone signed the Agreement in relation to the operation of the account. This resulted into the conclusion of a contract in relation to the opening and operation of the account between Mable Norford and the Defendant Bank exclusively. The signature card indicated that the name of the account was "Trust". Theletters and words "T/F Franklyn and / Louise" appear after Mable Norford's signature. She deposited and withdrew monies from the account freely from time to time between 1976 and 2008.
Mable Norford died intestate on 30th June 2008. Upon her death a balance remained in the account.
Letters of Administration of the Estate which by law devolves to and vests in the personal representative of Mabel Norford were on the 17th day of November 2009 granted by the Eastern Caribbean Supreme Court at the Registry thereof at Basseterre in the Island of St Christopher to Marian Louise Norford, (Louise Norford) the natural daughter, and one of the persons entitled to share in the estate of the deceased Mable Norford.
According to the Grant of Letters of Administration, an Affidavit in verification of the account of the estate of the deceased has been duly filed wherein it is shown that the gross value of the deceased estate amounts to $9,000. The documents leading to the Grant of Letters of Administration are not before the court so the court has no knowledge as to the contents of the inventory of the estate.
On 17th January 2011, Louise Norford (in her capacity as Administratrix of the estate of Mable Norford, deceased) filed an Amended Claim Form and Statement of Claim in which she claims against the Defendant Bank payment of the sum of $8,267,67 which she says is the amount standing to the credit of Mabel Norford, deceased on her savings account No 1000005 at the Defendant Bank. Louise Norford asserts that this sum of money forms part of the estate of Mable Norford. She pleads that despite repeated demands, the Defendant Bank refuses to deliver the money.
Louise Norford also claims a Declaration that all monies standing to the credit of Mabel Norford, deceased, on her savings account No 1009905 at the Defendant Bank forms part of the estate of Mabel Norford, and as such, are payable to Marian Louise Norford, as Administratrix of the Estate.
Louise Norford also claims interest pursuant to Section 27 of the West Indies Associated States Supreme Court Act No 17 of 1975, costs and further and other relief.
In paragraphs 5 to 6 of the Amended Statement of Claim, Louise Norford alleges, among other things that in or about 1975, her mother, Mable Norford opened a savings account No 1009905 at the Defendant Bank. Louise Norford says that she was present when the account was opened, and heard a conversation between her mother and the Bank clerk. Mabel Norford is said to have told the clerk the reason for opening the account, whereupon the clerk is said to have advised Mabel Norford what she had to do in order for any of her children to make deposits or withdraw money from the account on her behalf in case of her illness or death. A savings account was accordingly opened in the names "Mabel N. Norford T/F Franklyn &/or Louise Norford" which is to say Mabel N. Norford, in trust for Louise Norford and or Franklyn Norford.
Louise Norford asserts that her mother withdrew monies from the account periodically, and at one time during her illness she sent her son Franklyn to withdraw the sum of $400.00
Louise Norford pleads that her mother has always said that whatever money she has left on the Bank at the time of her death was to cover her funeral expenses, and that she has never intended that the monies held on the account was to be held by her for her children
Louise Norford further pleads that in her capacity as Administratrix of the Estate of her deceased mother, she attended at the Defendant Bank to withdraw the money standing on Account No 1009905, but she was told that she could not draw the money because it was trust property. Louise Norford says that by reason of the Bank's refusal to pay the money, she is unable to settle her mother's funeral expenses and just debts.
Hence the suit.
The Defendant Bank filed an Amended Defence on 31st January 2011, in which it neither admit nor deny most of the allegations or contentions of the Claimant. It however, specifically refutes the allegation that a conversation between the deceased and a Bank clerk took place, in which the clerk is alleged to have advised the Claimant to state "Mable Norford in trust for any one of her children". Also, it specifically denies that Franklyn withdrew moneys from the account. The Defendant Bank asserts that the deceased opened the Account as a trust account for the benefit of Franklyn and or Louise Norford and that the deceased intended to create a trust for them.
The Defendant contends that the monies do not form part of the estate of the deceased, but, are held on trust for Franklyn Norford and or Louise Norford. Furthermore, the Defendant Bank pleads that the monies held in the account are trust monies and are to be dealt with in accordance with the Trust Act of 1996.
At a case management conference held on 15th March 2011, discussions ensued as to whether or not this matter should go to trial or whether the parties should attempt to settle the matter privately, or by way of mediation. In the end, the case management conference was adjourned to 5th April 2011 to allow the parties to consider relevant authorities and to hold discussions with a view to settlement.
When the case conference resumed on 5th April 2011, the parties had not met. They sought a further adjournment to 4th May 2011. By 4th May 2011 when the matter next came before me, Mr Butler had filed skeletal arguments and authorities but the Defendant had not had an opportunity to reply. Still, they had not met to negotiate a settlement. The Defendant was given an opportunity to reply to the written submissions of the Claimant, and the matter was further adjourned to 15th June 2011 for further case conference.
When the matter came back before me, the parties requested that the court consider the issue as to whether or not the money held at the Defendant Bank in Account No 1009905 in the name of "Marie N. Norford T/F Franklyn & or Louise Norford" forms part of the estateof the deceased Mabel Norford, or whether the account was held on trust in favour of Louise Norford and Franklyn Norford — the children of the deceased, and therefore falls to be managed in accordance with the Trust Act of 1996.
To my mind, these are the only issues in the case, and it would appear that I am being asked, to conduct a mini trial, at this stage of the proceedings, without witness statements or without the aid of full evidence, and without any undertaking by either counsel to be bound by any decision I make, with the possibility that any decision I make will be open to appeal, and be subject to be remitted to the master for directions for trial. This seems to be an inappropriate use of the court's resources.
Notwithstanding these concerns, for what it is worth, I go on to consider the submissions put forward by counsel for the parties.
Mr Butler prefaced his submissions with a discourse on the three certainties that must be present for the creation of a trust — certainty of intention, certainty of subject and certainty of object. He then examined the facts as stated in the statement of claim and went on to submit that those facts indicate that there was no intention on the part of the deceased to create a trust in the context of the Trust Act of 1996.
Next, Mr Butler examined the Defence. In doing so, he pointed to the signature card which the deceased had signed, setting out the terms of the agreement between the Defendant Bank and the deceased as stated on the signature card. Equity looks at the intention and not the form, contended Mr Butler. So far as Mr Butler is concerned, this intention may be gleaned from the Agreement on the signature card, the authorization to the Defendant Bank, the conduct of the deceased and the fact that she was able to withdraw and deposit monies "ad Lib" and retained control over the savings account which was inconsistent with an intention to create a trust.
As to certainty of subject matter, Mr Butler submitted that there is no certainty of subject matter because the deceased was free to withdraw any amount of money from the account at any time; so it cannot be said what sum of money is to be held upon trust. The probability existed that the account could have been depleted prior to the depositor's decease.
Moreover, argued Mr Butler, the Bank has authority to withdraw monies from the account at any time for any debt due to the Bank and also for Bank Charges incidental to the account.
To support his position that there is no certainty of subject matter, Mr Butler relies on two cases includingSprange v Barnard 1789, in 2 Bro. C.C. 585. In that case, a testatrix by her Will left £350.00 to her husband for his sole use, and at his death, the remaining part of what is left, and he does not want for his own wants and use, to be divided between the Testatrix's brother and sister equally. It was held that there was no trust because there could be no certainty as...
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