Justice Sandil Kissoon in a judgment on Tuesday ruled that a marina and boating services property in Essequibo sold to Antares Inc back in 2017 had been fraudulently sold below value by the daughter of the deceased to whom the property was willed as trustee of beneficiaries.
Justice Kissoon noted in no uncertain terms that in on the fraud, was lawyer for the daughter (the executrix), Senior Counsel Stephen Fraser; while the record showed that the sale was to a company established after the testator’s death and staffed with immediate relatives of the executrix.
The Judge noted that as an officer of the Court, Fraser’s actions ought to be condemned in the strongest possible terms.
Effort by this newspaper yesterday to contact Fraser for a comment proved futile.
The Claimants, who are beneficiaries of the estate in question, of Anthony DaSilva, raised allegations against the executrix Deborah DaSilva DeSantos of “self-dealing, breach of trust, malversation of office, dishonesty and fraud.”
As a result, the sale has been set aside and the daughter has been removed as executrix and has to pay $5,000,000 in damages for the fraud she has committed.
With the daughter’s removal, wife of the deceased, Dershanie Harrilall, has instead now been appointed Adminis-tratrix of her late husband’s estate.
It is the contention of the Claimants—Dershanie Harrilall, Ameer Harilall, Sharief Mohamed and Charles DaSilva— that Deborah DeSantos filed an incomplete inventory of the assets of the estate as at the date of DaSilva’s death.
Specifically, they contend that assets bequeathed to them by the deceased were not listed.
The executrix on the other hand, contended that the deceased in his will included property which he did not own, but was rather owned by the Friendship Slipway and Company Limited.
The property at the heart of the litigation is situated at Roden Rust, East Bank Essequibo.
Justice Priya Sewnarine-Beharry had previously granted Dershanie Harrilall an injunction, restraining the executrix from selling or alienating the subject property.
According to court documents seen by this newspaper, the testator had directed that the subject property be sold, excluding an area surveyed, identified and devised to Mohamed. The testator further directed that after the deduction of expenses, the proceeds be distributed to all four Claimants in proportions of 60%, l5%, 15% and 10%, respectively.
Those proceedings were heard before Justice Nareshwar Harnanan, who discharged the interim injunction order.
Further, in relation to the substantive claim, Justice Harnanan on 25th August, 2017, ordered the executrix to accept and consider any bid made by any of the beneficiaries in pursuing the sale of the subject property.
According to court documents, it was then discovered by Dershanie Harrilall that the executrix had, during the pendency of those proceedings secretly executed an agreement of sale on May 29th, 2017 purporting to sell the subject property to Antares Inc.
The claimants argued that the entire deal done by the executrix was for her own unjust enrichment and that of her nominees.
Separately, the Claimants further allege that the executrix had converted and was seeking to further convert the income from the marina business carried on by the deceased at the property prior to his death for her unjust enrichment and was unlawfully attempting to deprive and deny the beneficiaries of that revenue.
Deborah’s assertion, however, was that the business and its income was that of Friendship Slipway and Company and therefore did not form part of the estate.
She would then go on to contend that the current proceedings were an abuse of the process of the Court, in that the identical issues raised had been previously litigated before Justice Harnanan and therefore the action ought to be dismissed.
In assessing whether the issues were res judicata—meaning that they had already been decided by a Court and therefore could not be re-litigated—Justice Kissoon, in deference to a plethora of case law authorities said he was satisfied that “there was no adjudication, determination, consideration, or judicial disposition on the merits” of the issues raised by the Claimants.
Justice Kissoon said it appeared to him that the disposition of those proceedings were based entirely on a submission made by the executrix’s lawyer Stephen Fraser SC, who was the Respondent in that action, to the effect that the proceedings were flawed and did not disclose a cause of action.
He said the record does not reflect that the substantive issues had been adjudicated and determined.
But Justice Kissoon said that more significantly the reason the plea of res judicata was unfounded and must fail is that Deborah DeSantos and her lawyer committed a fraud upon the Court in the proceedings before Justice Harnanan, “in that they calculated to and deliberately concealed material facts from that Court.”
Those facts Justice Kissoon said were directly relevant to the issues which arose for adjudication and determination, and which were actively under consideration; while adding that more importantly, “those material facts which were deliberately concealed” had a direct bearing upon the outcome of those proceedings, that is, both the substantive matter and the decision to discharge the interim injunction order of May 25th, 2017.
Referencing Deborah DeSantos’ affidavit in defence filed by her attorney Fraser, in the previous proceedings, Justice Kissoon noted where she had said that the highest offer she received for sale of the subject property was $60,000,000; and that she feared that if she did not proceed swiftly, “the opportunity to secure a sale will quickly dissipate.”
Justice Kissoon noted that neither DeSantos nor Fraser disclosed to Justice Harnanan, that the intended buyer of the imminent sale was Antares Inc— a company incorporated on the October 27th, 2015, after the death of the testator, and that it was her immediate family members—Alphonsus Manfred De Santos, Risa Maria De Santos and Melissa De Santos—her husband and daughters, who were the principal officers of that company.
Justice Kissoon described that state of affairs as “a wholly incestuous and untenable affair that simply could not be defeated by the corporate veil of a separate legal personality in such circumstances.”
The unfortunate consequence he said was that whilst Justice Harnanan, continued to give active consideration to the issues arising in the proceedings before him, the executrix and her lawyer Fraser, “concealed from that Court” that she had already executed an agreement of sale with Antares Inc, during the course of those proceedings.
Justice Kissoon said it appears that both the executrix and her lawyer, “having committed a fraud upon that Court in those proceedings, to procure a particular outcome by deceit and, having benefited therefrom, now seek to rely upon that jaundiced outcome to obtain a similar result before this Court.”
“Such conduct and behaviour involving an officer of the Court [Fraser] and [the executrix], who occupies a position as trustee, as executrix of the estate of the deceased and who owes a fiduciary duty to the beneficiaries and the Claimants must be condemned in the strongest possible terms,” the Judge said.
Justice Kissoon said that from her testimony, the executrix was well aware of the “grave and perilous position of conflict that she had subverted herself in view of her fiduciary duties to the estate and its beneficiaries.”
He then went on to add that the purported sale demanded without more as a condition precedent at the very minimum full, complete and utter transparency, a full disclosure to the Court and all parties directly affected by the intended sale, the sanction and approval of the Court of such sale more especially in the extant circumstances where the parties were already before the Court that was actively engaged in considering that issue and finally in absence of an order of Court sanctioning the sale the Executrix was mandated to obtain the express consent and approval of the beneficiaries.
The Judge said that these safeguards are neither new nor exhaustive and are simply but a few of the basic measures “intended to insulate and protect the assets of an estate and its beneficiaries against dishonest dealings, intromissions and the acts of an unscrupulous legal representative and the prohibition against self- dealing by a fiduciary.”
Justice Kissoon said that the efforts of Fraser as a member of the Inner Bar, to justify his client’s conduct are “reprehensible and unpalatable.”
“The duty and obligation of Counsel to the Court is inviolable, it remains constant, never flinching, unyielding, unaffected by any fact, circumstance, litigant, personality, body or remuneration. It is never to be dishonoured as a matter of convenience in the manner it was in the conduct of the proceedings before the Honourable Mr. Justice Nareshwar Harnanan to procure a desired or particular outcome. Duty, integrity, trustworthiness, honesty, obligation to oath, conscience and ethics are among the attributes that form the bedrock and lie at the foundation of the legal profession, the very qualities which birthed the legal profession. In the absence of such, the Courts would be hard pressed to distinguish between Counsel and a dishonest litigant,” the Judge said.
For those reasons given, he said that the plea of res judicata, as was unfounded, and therefore rejected.
Justice Kissoon then went on to examine whether Deborah DeSantos needed to be removed as executrix and referenced provisions of the Deceased Person’s Estate Administration Act; citing Section 58 which provides, that “every Executor shall administer and distribute the Estate which he is appointed to administer according to law…[and] file with the Registrar a full and true account, verified by affidavit, supported by vouchers, as it relates to an accounting of the administration and distribution of the assets of the estate.
In the circumstances of the case, Justice Kissoon said there is an” impermissible and unacceptable conflict of interest” to the extent that the executrix “has acted in bad faith to the detriment of the beneficiaries, and inimical both to their interest and that of the estate.”
He said that in this regard, she was “motivated by avarice and greed, has pursued a course of fraudulent conduct and dishonesty in her dealings, both with the Courts and the beneficiaries to unjustly enriched herself.” In those circumstances, the Judge said that she is unfit to act as trustee of the estate or to stand in a fiduciary relationship with the beneficiaries; while adding that she has “at every juncture sought to deprive them of their just entitlement bequeathed to them.”
Against this background, Justice Kissoon said that the executrix “must be removed forthwith.”
On the issue of whether the Court ought to set aside the agreement of sale of the property, Justice Kissoon said it had been rendered nuduni pactum (a bare promise) and has set aside the sale.
On this point he said that the attempts by the executrix to convey the transport to Antares Inc subsequent to the grant of the injunction “highlights, not only her bold dishonesty, but her erroneous belief that the conveyance of the transport into the name of [the Company] somehow placed that property beyond the reach of the Court, and clothed [it] with the status of a bona fide purchaser for value.”
In addition to the $5,000,000 in damages she has to pay for fraud, the deceased’s daughter also has to pay fixed costs to the claimants in the sum of $1,000,000. An additional one million dollars has to also be paid to them—$500,000 by Friendship Slipway and Company and $500,000 by Antares Inc.
