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. Considering that government charges 1% for the Registrar’s office preparing the application, 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.
