How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Alex J. Your Own Question
Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3840
Experience:  Solicitors 2 years plus PQE
Type Your Law Question Here...
Alex J. is online now

Beneficiaries of a trust have sued the trustee of

This answer was rated:

Beneficiaries of a trust have sued the trustee for breach of fiduciary duties. The trustee dies before trial. It is understood that litigation continues against the trustee's estate. However, since the the trustee's evidence or testimony would have been crucially important, how are these difficulties overcome?
Hi Thank you for your question and welcome. My name is ***** ***** I will assist you. Did the trustee leave any records or files? Did the trustee have a business email account? Kind regards AJ
Customer: replied 1 year ago.
Yes, the trustee left extensive files and records and yes he did have an email account/address from which there are extensive records of communications with the beneficiaries.
Hi, Thank you. The way to compensate for the trustees absence is to have someone relevant to the case,( I.e the beneficiaries) use his emails and records in a witness statement and present them to the court. The court cannot consider evidence that is simply unavailable. Did the trustee have an assistant or any work colleagues that may be able to provide a statement?
Customer: replied 1 year ago.
Many emails and affidavits, both by the plaintiffs and the defendant (trustee) have been submjtted to the court before the trustee died in the case management phase of the case.
Hi, Thank you. The only way to fill in this gap is to make sure that any witness statements you submit in support of your case, are accurate and consistent. The deceased trustee's witness statement, is a statement depicting his version of events, it is impossible to obtain this now so the court can only make the decision based on the evidence it has. Do you have specific concerns in the evidence that need to be addressed? Kind regards AJ
Customer: replied 1 year ago.
Since it is still the case management phase, the proceeedings so far have dealt with the defendant's (trustee's) Applications to strike him out as the Defendant which have failed. He died at this point, having not been subjected to direct testimony or cross examination. The central issue being his refusal to provide proper trust accounts as required by law.
The central questions now being, are the Affidavits already filed and emails between the beneficiaries and the trustee sufficient to continue to trial in the absence of testimony and cross examination of the deceased Defendant?
Hi, Thank you. Is there anything you need to actually cross examine in the affidavits? Normally a witness is limited to what they put in their statement anyway.
Customer: replied 1 year ago.
Thanks for your responses Alex. There are several points that need to be countered in his Affidavits. The beneficiaries have already done so in their Affidavits, but no cross examination by either the plaintiffs or Defendants attorneys.
Hi, Thank you. Would it be worth asking the personal representatives to submit a witness statement? If the defendants do not want top cross examine the opposing witnesses, then they are missing the opportunity to elaborate on the evidence - this may be to the detriment of their case. Is the lack of witness statement and cross examination from the trustee going to prejudice your case?
Customer: replied 1 year ago.
I will take up the matter of a witness statement from the representatives of the trustee with the attorneys. I suspect that they will not do so unless they are forced, ie ordered by the Court. The defense will not object to cross examining the plaintiffs. The point as I explained in the beginning is the inability of the plaintiffs to cross examine the now deceased trustee and whether the defense will now argue that the litigation can not proceed now that there can be no testimony from the late trustee, which brings us back to the question of whether his Affidavits and emails which have been filed in evidence can be 'examined' and defended by his attorneys and so allow the litigation to continue.
We are not concerned about our case being prejudiced, only whether it can continue.
Hi, Thank you. Surely the case has to continue as there is still a case to be answer, and the estate of the trustee can have a judgment against it. Are the personal representatives trying to strike out the claim?
Customer: replied 1 year ago.
Yes indeed there is still a case to answer, but will the absence of the trustee prove fatal to continuation? We are awaiting rulings on pending attempts to have the (late) trustee struck out (before his death) which we believe will be denied. It is possible (probable?) That the Defendant attorneys may apply now to have the case struck out because of the trustee's death and here we get back to the initial crucial question.
Hi, Thank you. The absence of one witness should not be fatal to continuation. Aside from his records, is his evidence so crucial that there is no case without him?
Customer: replied 1 year ago.
The trustee was not just one witness, he was the defendant and sole witness, so yes his evidence was crucial, so finally, can I ask once more your opinion on whether his previously filed Affidavits and emails can be used as a basis for continuation?
Hi, Thank you. His estate is now the defendant, so I appreciate he (as a witness) is not available but his estate can still be sued as a legal person would. If his files and affidavit are the evidence you have there is no reason why the hearing cannot proceed. His affidavit is his witness evidence, if your case is not prejudiced by the lack of cross examine it then surely there is nothing further the trustee can add to the proceedings any way. Is the court refusing jurisdiction?
Customer: replied 1 year ago.
Thanks Alex. This is encouraging and hopefully the Court will agree with your assessment. No the Court is not refusing jurisdiction. This litigation is taking place in Barbados and we follow English common law, though the final appeal Court is now the Caribbean Court of Justice, not your Privy Council (now the Supreme Court?) whch it used to be.
It would seem that there's not a lot else to be discussed, but I appreciate all your prompt responses .... is it time to rate you now?
Hi, Thank you. I would be most grateful if you would rate my answer. I am happy to assist you any further if you have any follow up points on this thread. In the mean time I am going to see if I can find the procedure rules for the Caribbean Court. Kind regards AJ
Alex J. and other Law Specialists are ready to help you
Customer: replied 1 year ago.
The Caribbean Court (CCJ) is the final appeal Court as mentioned and we have not yet reached there and hopefully we will eventually be successful at the High Court in Barbados without any judgements being appealed to the CCJ.
Hi, Thank you. Has the court indicated which procedure rules would be applicable to this evidence?
Customer: replied 1 year ago.
No, we are awaiting rulings on two Applications to strike by the Defendant ..... since November last year.
The CCJ continually criticizes the Barbados judicial system for the ridiculously long times taken by the Courts to dispense 'justice'.
Hi, Are these application on the basis that there is no case to answer or no reasonable prospect of success?
Customer: replied 1 year ago.
Neither. One is Laches (delays in bringing the suit) and the other Acquiescence by the beneficiaries in accepting the accounts provided by the trustee which is nonsense. As I said, we expect both Applications will be dismissed.
Hi, Thank you. If you have any update once the applications have been decided I am happy to assist further? Kind regards AJ
Customer: replied 1 year ago.
Thanks for your offer Alex. Hopefully my legal team should be able to deal with any issues arising as its headed by the top QC in the Island. I contacted you because I wanted an opinion on the matter discussed which has been of concern. You have been helpful and I am awaiting concurrence or otherwise from the team. Thanks again.
No problem. I wish you the best of luck. If I can assist further please do not hesitate to contact me. Kind regards AJ