God has his work cut out for him in
Anguilla. And what connection does God
have with estates in Anguilla, you ask.
I’ll tell you. But first a little
background will help.
I am not certain how
much land in Anguilla is without a living registered owner. But there is a lot of it. Shortly after I came to live and work in
Anguilla in 1976, I estimated it to be over half of all properties. Indeed, before the Cadastral surveyors came
here in 1974, most land was without a titleholder. This became evident as the registration
process enfolded. If you have read
hundreds of land dispute records, as I have, you would come to the same
conclusion.
The Cadastral surveyors
divided the island up into several Sections.
Each Section was divided into Blocks.
And each Block was divided up into Parcels. Every inch of land was surveyed and given a
Parcel number.
The surveyors
methodically went through the island Block by Block. They called on anyone who claimed an interest
in any Parcel of land in a particular Block to be present at a location on a
day and time, and to make their claim.
If any claim was contested, a Hearing took place. The surveyors made a Decision on the dispute. If anyone was offended by a Decision, they
could appeal to an appeal tribunal. That
tribunal listened to the evidence and made a Decision. Anyone offended could appeal to the High Court,
then the Court of Appeal, then the Privy Council. I know of only one dispute that went the
whole way up.
Very few of the
persons who made a claim in 1974 held a title deed to their land. For most, there was no title document of any
kind. Most claimed as an heir through a
Will, or by showing a receipt for a purchase.
Persons who held a deed were registered as owning their Parcel “absolutely”,
an unchallengeable and the best title there is.
Persons who had only a Will, or a receipt, or a letter, or a claim by
long possession, were registered as having “provisional title”. After a period of years, twenty as I recall,
they could go to the Registrar of Lands and apply to perfect their title by changing
it to “absolute”. Land held by provisional
title was not considered marketable, as the registered owner might encounter
someone else with a better claim, and find the land taken away.
Most land in Anguilla
was registered during the Cadastral registration process of 1974 in the name of
“the heirs of” the last person with a title deed or other apparently
valid claim to own the land. Such land
could not be dealt with by the heirs until they appointed someone to apply to
the High Court for Letters of Administration to the estate of the deceased
owner.
Such an application traditionally
required a lawyer. Most Anguillians
objected to paying legal fees, claiming they were too high. In those days, there was little money in
circulation or in savings to pay even minimal legal fees, far less the death
duties. And there were no lawyers
residing in Anguilla. All lawyers who
practised in Anguilla lived in Antigua, St Kitts, or Tortola, merely visiting
from time to time.
Persons began to
congregate around the doors of the Registrar of the Supreme Court, who handled
the administration of court process, demanding their right to apply on their
own without a lawyer. By 1978, the
Registrar became overwhelmed with the work and the responsibility. In particular, the Registrar was conscious
that he should not be advising litigants on their court procedures. He might even be accused of assisting someone
in defrauding the rightful heirs of their estate.
In due course, the
House of Assembly acted. Death duties
were formally abolished to make administration and distribution less expensive. The Registrar was legally authorised to
assist in preparing the application to the court for a grant of Letters of
Administration. All such applications
were readily granted, since it was the same Registrar who approved the
applications. During my tenure, the
court granted many hundreds of such applications in this way. This process continues to this day. The government earns a fee of 1% of the value
of the estate for the use of its Registrar in providing this private legal
service.
However, there was a
hitch. Not all Administrators were
honest. Not many of them sought or took
legal advice on how to properly perform their duties as Administrator. In some cases, they were representing the estates
of persons who had died hundreds of years previously. After so many decades, it was difficult to be
accurate in determining who exactly were the persons who were entitled to make
a claim on the estate. Many rightful
heirs were cheated.
Mainly, the
Administrators did their best in administering their responsibilities. Their best did not always equate to doing the
job properly or even at all. Many
Administrators died without having completed, or even begun, the
administration. This necessitated one of
the heirs starting all over again with a new application to the Court. A great deal of land in Anguilla lies
afflicted by this blight.
So, you ask, what
exactly is an Administrator expected to do?
It is important to know that an Administrator is a trustee. Trustees bear a great responsibility. And there are severe penalties for failing to
perform those responsibilities properly.
One of the documents
that a prospective Administrator must sign is a Bond. This Bond is an agreement to pay into Court
an amount of up to twice the value of the estate to compensate the heirs for
any losses that a maladministration may cause.
And it must be co-signed by two sureties who promise that in case the
Administrator fails to pay up, they will pay the amount of the Bond into
court. That is an awesome responsibility
and liability. It is difficult and
embarrassing to call on friends or family to sign a Bond for you that may
involve them in losses of millions of dollars.
An executor appointed under a Will does not require a Bond. That is another reason why you are advised
not to die without leaving a Will.
One of the
responsibilities of an Administrator is to divide up the estate and distribute
it to the beneficiaries within the Administrator’s Year. The Administrator’s Year can, if there is
sufficient excuse, be extended for up to three calendar years. Any longer than that can be actionable
misbehaviour.
If the Administrator
does not diligently progress the distribution within three years, he is liable
to be sued, ordered to compensate the heirs for any losses they suffer, and
have the Grant of Letters of Administration taken away and given to someone
else. In Anguilla, few disappointed
heirs take the trouble to enforce their rights through such court action. This is understandable as the defaulting
Administrator is usually a brother or sister or a close cousin.
The more normal remedy
is the usual Anguillian one. The
suffering heir lifts his face to heaven, extends his arms upwards, rolls his
eyes, and exclaims, “Me boy, I leaving he to God. I leaving he to God.” Very few Anguillians take the trouble of
defending their rights through a court remedy.
So, how does an
Administrator avoid this heavenly imprecation?
The first rule is to make sure to get competent legal advice. A lawyer will be able to guide the
Administrator through all the hoops and stumbling blocks in the way forward.
The main rule that an
Administrator will be warned to follow is to involve the other heirs as much as
possible in the process. Do not divide
up the estate without the prior approval of the family, or at least after
consulting them. Either call them to
regular meetings to discuss progress, or if this is not practical, write them
with updates on a regular basis. A lack
of communication is the root cause of most suspicions and distrust.
If the heirs do not
agree to come up with their share of the administration expenses, set aside an
area of land, say a half-acre, to be sold to meet the expenses. The expenses are numerous. The application to the court costs over a
thousand dollars. The survey can be
several hundred dollars per acre. The
lawyer’s fee will be a percentage of the value of the estate. There may be arrears of property tax to be
paid. Fortunately, there are no death
duties.
In my time, the
lawyer’s fee was typically 2% of the value.
Government charges 1% for the Registrar’s office preparing the
application. So, 2% is not much when one
considers the amount of work that must be done to guide the Administrator
through the process. The Registrar gives
no such advice. Suspicion can be avoided
by performing the simple duty of regularly accounting in writing to the heirs
on all monies received and all bills paid.
It is the Administrator’s duty to do this anyway.
Given the large number
of Anguillian estates that are still unadministered after more than forty years,
it is amazing that there are not more lawsuits against Administrators. All I can assume is that God is very busy
trying to sort out these Administrators.
This is a heavy burden to place on the shoulders of the good Lord.
If the Administrator
appears either to have abandoned the task he volunteered for, or to be
squandering the estate, or to be defrauding the other heirs, they should not
hesitate to consult their lawyer and have a stiff letter written to the
Administrator. If the letter does not
get immediate compliance, then the heirs must pool their resources and file a claim
in the High Court. The Administrator or
his Sureties will have to pay up the legal costs at the end of the day. God best helps those who help themselves.
