On 17 September 2026, the High Court of Justice (Gill J) granted each of the declarations sought by the claimant in Gerald Anthony Dwyer Astaphan v Estate of George Sahely, Claim No. SKBHCV2025/0082 (Saint Christopher Circuit), with costs to the claimant. The Court held that the gifts of personal property in clause 4 and of real property in clause 5 of the Last Will and Testament of George Sahely, dated 13 April 1944, were life interests in favour of the testator’s daughters, with the remainder to their respective issue, and that the provisos to both clauses are valid and legally effective.
The testator died in 1956. Each clause gave the relevant property to his wife and six daughters in equal shares, subject to a proviso that a daughter’s share would pass to her issue if she died leaving issue, or to the wife and surviving daughters if she predeceased the testator or died without lawful issue. The claimant, a grandson of the testator, brought a Fixed Date Claim seeking declarations as to the true construction of the Will. The Estate contended that the words “I give and bequeath” and “I give devise and bequeath” conferred absolute gifts, and that the provisos were void as repugnant to absolute ownership, relying on Da Costa v Warburton and Kenny (1971) 17 WIR 334 and on the presumption in section 28 of the Wills Act, Cap. 12.15 that a devise without words of limitation passes the fee simple.
The Court rejected that contention. Applying Charles v Barzey [2002] UKPC 68, in which the Privy Council overruled the Eastern Caribbean Court of Appeal’s reliance on Da Costa, the Court held that the rules against repugnancy are rules of public policy and not rules of construction: the court must first ascertain the testator’s intention and only then ask whether it can be given effect. Applying Marley v Rawlings [2014] UKSC 2, the Court read the Will as a whole and found that the contrast between clause 2, which gave the testator’s wife his furniture, household effects and motorcar for her own use and benefit absolutely, and clauses 4 and 5, which omitted those words and carried detailed provisos, showed a deliberate intention to qualify the later gifts. That intention was a contrary intention sufficient to displace the section 28 presumption, and the interests created could be accommodated within the law of property without difficulty.
The Court awarded the claimant prescribed costs of $10,000. The judgment is published on the Eastern Caribbean Supreme Court website. The Estate has appealed to the Court of Appeal, and the appeal remains pending.
Counsel
D. Victor C. Elliott-Hamilton, with Adana D. Romeo, appeared for the successful claimant.