Wills v Wills
| Jurisdiction | UK Non-devolved |
| Judge | Lord Walker of Gestingthorpe |
| Judgment Date | 01 December 2003 |
| Neutral Citation | [2003] UKPC 84 |
| Court | Privy Council |
| Docket Number | Appeal No. 50 of 2002 |
| Date | 01 December 2003 |
[2003] UKPC 84
Present at the hearing:-
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Sir Martin Nourse
Sir Philip Otton
Privy Council
[Delivered by Lord Walker of Gestingthorpe]
This appeal raises issues as to the acquisition and extinction of title to land under the Limitation of Actions Act of Jamaica. The issues arise in an all too familiar context, that is where property is owned by a husband and wife as joint tenants and there is a breakdown of the marriage leading to separation and divorce. It is however a very unusual context, so far as reported cases go, for a dispute as to whether one co-owner (in this case, the husband) acquired title by possession from the other co-owner (his first wife).
The proceedings were commenced by originating summons and were heard on affidavit evidence without cross-examination, even though the affidavits revealed severe conflicts of evidence on a number of points, and other matters which called for further elucidation. This presented the trial judge (Chester Orr J) with a difficult task in making findings of fact, although it must be said that he may have increased the difficulty of his task by reserving judgment for over two years. The Court of Appeal (Rattray P, Bingham JA and Langrin JA (Ag)) did not disturb any of the judge's rather limited findings of fact, and the Board has been urged not to depart from concurrent findings in the courts below.
Their Lordships would, in accordance with their normal practice, be very reluctant to depart from concurrent findings of fact, even though the judge did not (as there was no cross-examination) have the advantage of seeing and hearing the witnesses. But in the course of the hearing before the Board it became apparent that although there are some strong conflicts of evidence, and although there are several points which could usefully have been explained, the most salient events are largely common ground. The following summary sets out matters of common ground except where otherwise indicated. For clarity, the parties' first names are used; this does not of course convey any disrespect.
The Facts
Mr Alexander George Wills ("George") married his first wife, Mrs Elma Roselina Wills ("Elma") in 1935, when he was aged 24 or 25. They had three children, two daughters and a son, born between 1935 and 1941. George worked for all his adult life as a building contractor. He and Elma owned various homes, pooling their resources and building their houses themselves. The two properties relevant to this appeal are 84 Sunrise Crescent, Kingston ("Sunrise Crescent") and 6 Newleigh Avenue, Kingston ("Newleigh Avenue"). Sunrise Crescent was transferred to George alone, as a vacant plot, on 25 November 1964 but on 22 February 1966 it was transferred into the joint names of himself and Elma. On 14 September 1966 it was mortgaged to secure £2,600, probably to finance the construction of what became the matrimonial home (although it also contained a flat which was let out). The mortgage was paid off in 1972; there is a dispute, which need not be resolved, as to who made the final payment. Newleigh Avenue was transferred to George and Elma as joint tenants on 17 December 1957. It contained three separate units which were let out.
By the 1960s the three children of the marriage were grown up. All the family seem to have had a propensity for travel, but the evidence leaves many loose ends about the details (one very loose end is an unidentified four-year period during which George is said by Elma to have left Jamaica and travelled to Aruba). However, it is clear that the elder daughter, True, married and settled in the United States. The son, Laurell, married and settled in Canada, where George visited him in 1974 or 1975. In or about 1964 Elma left Jamaica to stay with her daughter in the United States. She said that this was with her husband's consent. But in a letter written much later (on 18 June 1983) she wrote to him:
"From I leave there in '64 I haven't receive [d] any [support] after so much ill treatment."
Mr Dingemans QC, appearing for George's second wife, Mrs Myra Wills ("Myra") relied on this as evidence that George had not accounted to Elma for any rental income after her departure from Jamaica.
Elma's departure for the United States in or about 1964 was not permanent. In 1966 she became a joint tenant of Sunrise Crescent and joined in mortgaging it as already mentioned. Elma has deposed that she went to the United States again in 1967. But it was not suggested that she was permanently separated from George until the early years of the 1970s. (The divorce petition presented in 1984 specified 5 January 1974 as the date of Elma's desertion, or alternatively the beginning of their permanent separation.)
By then Myra had come into George's life. He was now in his 60s and suffering from leukaemia, although there is evidence that he managed to work, at least intermittently, despite his illness. Myra first deposed that she went to Sunrise Crescent in 1973 at George's request "in order to nurse, take care of him and be his companion". Later (again, the timing is unclear) George and Myra began to live as man and wife. In a later affidavit Myra said that she had met George in 1971 and had stayed at Sunrise Crescent to look after the property for part of 1971 and 1972, while George was away in the United States (where he too had acquired residential status). Elma deposed that she stayed at Sunrise Crescent for 9 months in 1971. There seems to be a conflict here but it cannot and need not be resolved.
It is common ground that Elma visited Jamaica and stayed at Sunrise Crescent in 1976, when George and Myra were living there as man and wife (though Elma says she was unaware of their intimacy). According to Elma she stayed there for a period of 9 months; Myra's version is 3 weeks. Myra says that Elma was treated as a guest and that she (Myra) ran the household; Elma says that Myra kept house because that was what she was paid to do. Myra says (with some support from a neighbour's household helper who has made an affidavit) that Elma was violent to George on one occasion, and frequently quarrelled with him and swore at him. Elma admits some disagreements. Again, these conflicts cannot and need not be resolved. The important point is that Elma does not claim to have set foot in Sunrise Crescent after 1976. She visited Jamaica in 1991 but says that George did not invite her to the house.
There is however one telling point of detail which deserves mention. In her third affidavit sworn on 30 June 1994, Myra deposed that in 1971 she:
"did not find any of [Elma's] possessions there not even a single piece of clothing save and except her wedding ring which she left behind …"
Elma had evidently seen this affidavit in draft but in a rather different form (in her affidavit sworn on 26 May 1994 she refers to Myra's third affidavit as having already been sworn, but the paragraph numbers do not correspond exactly). Elma did not in her affidavit make any positive case about having left any of her possessions at Sunrise Crescent, either in 1971 or at any later date.
Myra deposed that she and George managed the rented property (that is the flat at Sunrise Crescent, and Newleigh Avenue) and there was a good deal of documentary evidence (in the form of rent receipts, a rental agreement and a summons for possession) to support this evidence. In some of the documents Myra was named as co-owner with George. They did not account to Elma for any of the rental income. Elma deposed that the rents
"were used by George but this was because I permitted it because he was up to 1985 my husband and was the father of my children and I wished him to have an income from which he could meet the properties' expenses and his needs. I say further that to the best of my knowledge and belief the income from the said properties was sufficient to maintain the said properties and to provide George with a source of funds for his own needs."
Elma said that this was in accordance with an arrangement between them under which George would pay the property taxes and outgoings. There was also some evidence about the management of properties belonging to the children, but it is not necessary to go into that matter.
On 18 June 1983 Elma, writing from her daughter's house in New Jersey, sent George the letter already mentioned. It provides confirmation that Elma was not receiving any rental income (or any other support) from George. It shows that Elma was thinking of taking legal advice. George must have done the same because he had a formal notice published in a newspaper (the Daily Gleaner for 16 February 1984) disclaiming liability for any of Elma's debts. On 3 April 1984 he petitioned for divorce on the alternative grounds of desertion and five years' separation (on or from 5 January 1974). A decree absolute (on the ground of five years' separation) was granted on 24 May 1985. George and Myra were married in Jamaica on 22 January 1986.
On 20 January 1987 Elma's attorney wrote to inform her that George had through his attorney offered $25,000 "to satisfy your claims to premises at 84 Sunrise Crescent and 6 Newleigh Avenue". The attorney advised Elma not to accept the offer, as it was too low. Elma did not accept the offer. After taking further legal advice (as to the prospect of her becoming entitled by survivorship) she
"decided that it would be better to leave things as they were because I did not wish to deprive George of the roof over his head or adequate funds with which to live."
George died on 28 December 1992, aged 82. Elma (who seems to have travelled to Jamaica for his funeral) gave notice to the tenants that they...
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