Hot off the presses is the case of the Estate of Celeste Dos Santos. The main issues are the ownership of the house of the deceased, Celeste Dos Santos, and the question of the limitation period within which to bring an application seeking to compel a passing of accounts.

Celeste died in 2013. She was capable until her death. She was survived by her three sons, including John, the recipient of Celeste’s house, her de facto attorney for property and executor of her estate. In 2021, one of her other sons, Rui, commenced an application seeking, among other things, a declaration that Celeste’s home is an asset of her estate and an order requiring John to pass accounts as Celeste’s de facto attorney for property.  

The source of the conflict was primarily the 2001 transfer of Celeste’s house to John. John says the transfer was done as a gift on the basis that Celeste would continue to live in the home and John would look after her personal and financial affairs until her death. Rui, in contrast, asserts that his mother intended that John hold the house in trust for her, such that on her death the asset would form part of her estate. The Court reviewed the law, the evidence of the deed of transfer and of the surrounding circumstances, which the Court determined supported the inference that Celeste intended for John to receive the house, thus rebutting the resulting trust presumption.

In respect of the other core issue, being Rui’s request that John be compelled to pass attorney accounts, the difficulty for Rui was that he brought the application nine years after his mother’s death, and John no longer had any of his mother’s pre-death financial records. Was Rui out of time?

Rui relied on the appellate decisions of Armitage v. Salvation Army and Wall v Shaw to support his argument that an application to pass accounts is not a “claim” and therefore does not fall within the Limitations Act. It follows that the basic two-year limitation period in s.4 of the Act does not apply, such that Rui’s application is not statute-barred.

The Court did not agree with Rui’s interpretation of the Armitage or Wall case. It did not see those cases as excluding the application of the Limitations Act in this scenario. In short, the distinction made by the Court was that although an application to pass accounts is not a “claim” and, therefore, not subject to the Limitations Act, an application seeking to compel an application to pass accounts is a “claim” and is subject to the Limitations Act.

The limitation period issue aside, without a good explanation for the lengthy delay, the Court also saw it as unfair and unreasonable to expect John to account, especially without any prima facie evidence of wrongdoing.

Rui’s application for an order directing John to pass accounts was denied. Given the recency of this decision, it remains to be seen whether a further debate on the issue will be had at the appellate level.

Thanks for reading and have a great day,

Natalia Angelini