IN THE SUPREME COURT OF BELIZE, A.D. 2001

Action No. 105 of 2001

 

Between	(MANUEL AYUSO (LINCOLN BLAKE	PLAINTIFFS/ APPLICANTS
	( ( ( And ( (
	(AMPARO NOBLE (FRANCIS GEGG (MINERVA JONES	DEFENDANTS/ RESPONDENTS

Ms. D. Courtenay for the Applicants
Mr. L. Welch for the Respondents

AWICH J:

Notes:

Contentious probate and administration, O.69 part II of Rules of the Supreme Court. Entering caveat and the steps in procedure to follow. Who is to issue writ of summons under O. 69 r 54 when matter is deemed contentious? Whether contentious proceedings may be discontinued summarily by application of petitioners for grant of Letters of Administration.

J U D G M E N T

The Application

Mr. Manuel Ayuso and Mr. Lincoln Blake, the applicants, by their
summons dated 26.2.2001, filed at Court on the same day, brought

Mr. Amparo Noble, Mr. Francis Gegg and Mr. Minerva Jones, the respondents, to this Court, "to show cause why the proceedings ... arising from a caveat entered on 5.2.2001 should not be discontinued and why Letters of Administration of the Estate of Lois (Therese) Blake Ayuso, the deceased, should not be granted (to them), her widower ... and her brother ...." It seems the application was an effort by learned counsel Ms. D. Courtenay, for the applicants, to have the petition of the present applicants, filed earlier on 18.1.2001, for grant of Letters of Administration decided quickly. There were needs of the children and bank loans to be met. The estate of Lois is a large one, inventoried at $2,051,026.53. Moreover, according to the will of James Howell Blake, the father of the deceased, she was, and now her estate is the sole beneficiary of Mr. Blake's estate which is even larger. Mr. Blake directed that his estate be passed on to the three children of Lois, on her death.

Background

The application by petition of Ayuso and Lincoln Blake for Letters of Administration was made, I presume, in accordance with O. 69 r1 of the Supreme Court Rules. Noble, Gegg and Jones then entered a caveat on 5.2.2001; that would be under O.69 r47. They described themselves as god-father and close friends of the deceased and her three children, Lauren Ayuso 10 years old, Sean Ayuso 8 years old and Libbie Bianco Ayuso 3 years old. Manuel Ayuso is the father, Lincoln Blake is the brother or step brother of the deceased. The caveat was warned in accordance with O. 69 rr 49 and 52, and notice of the warning was given to the respondents/caveators on 12.2.2001. They entered appearance, presumably on 15.2.2001, under O. 69 r 54. The matter was, according to the rule, deemed to have become contentious.

The next step in the proceeding, according to O. 69 r 54, was for Ayuso and Lincoln Blake, "the person(s) warning the caveat (to) commence an action for administration, by issuing a writ of summons." That would put in motion the rest of the pleadings leading to trial to determine whether Ayuso and Lincoln Blake are not entitled to the grant of Letters of Administration or whether Noble, Gegg and Jones alone, or with Ayuso and, or Lincoln Blake or with others are entitled to the grant. Ayuso and Lincoln Blake did not issue writ of summons, instead they made the present application demanding that Noble, Gegg and Jones do show cause why the steps they have taken in contesting the petition for the grant should not be discontinued and why Letters of Administration should not be granted to Ayuso and Lincoln Blake.

Determination

I do not think it was the proper application to make at that stage of the proceeding. Noble, Gegg and Jones had not failed or delayed in any step required of them. The next step was to come from Ayuso and Lincoln Blake, "the person(s) warning the caveat." The perception, which I think reasonable, might have been that it was for Noble, Gegg and Jones to issue the writ of summons, based perhaps on the practice in England whereby either party could issue the writ of summons - see Atkin's Court Forms, Second Edition, Vol. 32 at page 158 paragraph 17. Even by that practice, it would be open to Ayuso and Lincoln Blake to themselves proceed to issue the writ of summons, although I think that would not be consistent with our O. 69 r 54. The rule lays the responsibility on, "the person warning the caveat," in this case, Ayuso and Lincoln Blake. I quote the rule here for ease of reference:

I think that in the event that the persons warning the caveat delay unreasonably to issue writ, the caveators, in this case, Noble, Gegg and Jones, can challenge them to issue the writ or can apply for Court direction.

The central question to be decided in this application remains whether Noble, Gegg and Jones should be allowed to continue with their contention against the grant commenced with their caveat filed on 5.2.2001.

I have already stated that Noble, Gegg and Jones have not failed or delayed, so far, in taking any step required of them in their contention against the grant of the Letters of Administration, which grant is now deemed a contentious matter. A writ of summons has to issue and pleadings have to be done, and the issues stated in the appearance will have to be determined by Court. If Noble, Gegg and Jones fail in their contention, then Ayuso and Lincoln Blake may be appointed joint administrators of the Estate of Lois Therese Blake Ayuso, upon the Court having perused the petition and all the papers required to be filed, and having been satisfied with the bond provided. If they succeed, however, then the grant may not be made to Ayuso and Lincoln Blake or to them alone; the wish of Noble, Gegg and Jones will be taken into account in granting the Letters of Administration.

In this application to discontinue the contention of Noble, Gegg and Jones, parties have filed affidavits in which facts and grounds for grant according to the request of each have been stated. Both learned counsel

Ms. Courtenay for the applicants, and learned counsel Mr. L. Welch for the respondents, made extensive and detailed submissions about why the contentious proceeding commenced with a caveat on 5.2.2001 should not be proceeded with or should be proceeded with, respectively, and further, as to why their respective clients should be regarded as entitled to the grant of the Letters of Administration. The second part of their submissions made me consider whether I should waive the failure to issue a writ of summons following appearance, and proceed to regard the affidavits filed as sufficient pleadings for the purpose of contentious business under part II of O. 69. I declined, however, to do so despite the extensive submissions on the merits as to the suitability or nonsuitability of the persons to whom grant may be made. Given the fact that Mr. Ayuso, the widower, was living apart from the deceased at the time of her death, and that the interests of minor children are involved, and further, that a rather large estate of the deceased's father, has been, bequathed to the deceased, and now may go to her estate for the benefit of children who are very young, I should allow a writ of summons to be issued as required under the Rules, and full pleading to take place. That will, I assume, enable the Court to have the full material facts that parties would like the Court to have when deciding upon the grounds of the contention raised by Noble, Gegg and Jones. The facts might be extensive and involved. It is obvious from what I have said in the preceeding paragraph that I consider discontinuing the contentious proceeding commenced with caveat on 5.2.2001 premature. No ground has been established for Noble, Gegg and Jones to show cause why the steps in the contentious proceeding should be discontinued at this stage. I dismiss the application of Mr. Manuel Ayuso and Lincoln Blake, dated and filed at Court on 26.2.2001.

The applicants are ordered to have a writ of summons specially indorsed, issued within seven days of today. The respondents are to deliver their defence within eight days of the day the writ of summons is served on them. Thereafter any pleadings necessary will comply with the Rules. Upon completion of pleadings the matter must be set down, immediately for determination.

If delay in granting Letters of Administration will cause any financial hardship to the minor children, the necessary application supported by detailed affidavit may be made to this Court, for a modest sum to be released.

I have to make some general observations about the Rules of procedure. I think that the rules for "Contentious Business" under Part II of the Rules make the procedure too protracted and without serving the interest of the beneficiary which may sometimes require that money from the estate be made available quickly. Nor do the rules add much in protecting testamentary direction of the deceased or intestate estate. I think that it is possible to shorten the steps after caveat has been entered and quicken determination of the contention about who is entitled to probate or Letters of Administration. The caveator could be required to file his grounds for contention at the time of filing the caveat or within a limited number of days, and to serve the grounds on the caveatee within days. The caveatee would then be required to file his answer within days as well and the contention would be immediately set down for determination. Alternatively either party could, immediately after caveat has been entered, apply to court by notice of motion or originating summons supported by detailed affidavit, for determination. The requirement for advertisement of application for probate or Letters of Administration could also be improved by including advertisement in a newspaper, given the fact that people tend to see newspapers more often than they see the gazette.

Costs

Costs of this application are reserved.

Delivered this Monday the 28th day of May, 2001.

At the Supreme Court,
Belize City, Belize.

Sam Lungole Awich
Judge