Audrey Sheila Flowers (formerly Audrey Sheila Scavella) and another v Bria Scavella and 2 others

Probate and Administration of Estates Act 2011, section 65, allocates responsibility for charges only between interests in property forming part of the deceased’s estate. A beneficial joint tenant’s interest is extinguished on death when another joint tenant survives; it is not transferred to the survivor and does not enter the deceased’s estate. The survivor’s resulting sole interest therefore does not become primarily liable for the estate’s mortgage debt under section 65, even if the survivor is also an estate beneficiary. The question whether the provision applies to an intestate estate remains undecided. Equitable contribution or indemnity may arise between the survivor and estate, but that issue was not before the court.

William Scavella and Audrey Flowers owned a property as beneficial joint tenants and jointly mortgaged it. William died intestate, and Audrey became sole owner by survivorship. As administrator of William’s estate, Audrey used proceeds from an uncharged life insurance policy to reduce the mortgage debt. William’s children and former wife sought an account, arguing that section 65 required the property to bear the mortgage debt in exoneration of the estate.

The Supreme Court of The Bahamas found for the claimants. In May 2022, the Court of Appeal reversed that decision, holding that section 65 did not apply to property held by beneficial joint tenants and did not apply to an intestate estate. The Privy Council resolved the joint-tenancy issue against the claimants and therefore did not determine the intestacy issue.

The joint judgment of Lord Briggs and Lord Richards advised that the appeal be dismissed. The answer to the joint-tenancy question was determinative, so the Board did not decide whether section 65 applies to an intestate estate.

1. Nature of survivorship. Under the concurrence of Bahamian and English law, the interest of the first beneficial joint tenant to die is extinguished on death. It is not transferred to the survivor. The survivor becomes sole beneficial owner by survivorship, and the deceased’s interest never enters the deceased’s estate. Sections 61(3) and 59(1) of the Probate and Administration of Estates Act 2011 support that analysis. Section 20 of the Inheritance Act 2002 is consistent with it, but does not determine the legal mechanism of survivorship.
2. Scope of section 65. The provision is concerned exclusively with priority between different interests in property comprised in the deceased’s estate for payment of estate debts. Its statutory gateways require an interest of which the deceased was possessed or entitled at death, and which was charged at that time. An extinguished joint-tenancy interest satisfies neither requirement.
3. Claiming through the deceased. The reference to different persons claiming through the deceased concerns beneficiaries in the estate. A surviving joint tenant claims the property by survivorship, not through the deceased. The result is unchanged where the survivor also happens to be an estate beneficiary, since the two interests remain legally distinct.
4. Authorities and equitable liability. Syer v Gladstone (1885) 30 Ch D 614 concerned materially different statutory language and a testamentary gift rather than a joint tenancy. Official Assignee v Crooks [1986] 2 NZLR 322 concerned a New Zealand provision expressly addressing survivorship and was decided on a sufficient contrary intention. Neither authority materially altered the Board’s analysis. Equity may require contribution or indemnity between the survivor and the estate, but no such issue had been pleaded or argued.

The Board therefore advised His Majesty that the appeal should be dismissed.

• Privy Council: In [2024] UKPC 25, dismissed the appeal and left the intestacy question undecided.
• Court of Appeal of the Commonwealth of the Bahamas: In May 2022, reversed the Supreme Court’s decision, holding that section 65 did not apply to property held by beneficial joint tenants or to an intestate estate.
• Supreme Court of The Bahamas: Following trial in January 2019, Keith Thompson J gave judgment in December 2019 in favour of the claimants.