Wills v. Wills, Court of Appeal - Privy Council, December 01, 2003, [2003] UKPC 84

Resolution Date:December 01, 2003
Issuing Organization:Privy Council
Actores:Wills v. Wills

Wills v. Wills (Jamaica) [2003] UKPC 84 (01 December 2003)


Privy Council Appeal No. 50 of 2002

Myra Wills Appellant


Elma Roselina Wills Respondent






Delivered the 1st December 2003


Present at the hearing:-

Lord Bingham of Cornhill

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Sir Martin Nourse

Sir Philip Otton

[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...

To continue reading