Cummins v Hall

• Jurisdiction: Barbados
• Judge: Williams, J.
• Judgment Date: 14 July 1983
• Neutral Citation: BB 1983 HC 51
• Docket Number: No. 548 of 1982
• Date: 14 July 1983
• Court: High Court (Barbados)

High Court. (Civil Jurisdiction)

Williams, J.

No. 548 of 1982

Cummins

and

Hall

Appearances:

Mr. E.L. Bayley and Mr. L. Greenidge for the plaintiff.

Mr. E. Hinds and Miss S. Osborne for the defendant.

Inheritance and succession - Statutory interpretation — Barbados Property Act — Meaning of “spouse”

Williams, J.

1 This originating summons was taken out by Daphne Cummins, personal representative of the estate of Carol Blackman. She seeks the determination of the Court on the following questions –

• “1. That Carol Blackman, deceased, late of Oistins in the parish of Christ Church in this Island was the spouse of Lewis Flemming deceased at the death of the said Lewis Flemming deceased under the Succession Act, Laws of Barbados.

• 2. That the estate of the said Carol Blackman, deceased is entitled to half the estate of the said Lewis Flemming, deceased as set out in the Succession Act, Laws of Barbados.

• 3. That the Court may make such further or other orders as may be just in the circumstances.

• 4. That provision be made for the coats of this application.”

2 The summons is supported by the affidavit of Daphne Cummins of 2080 First Avenue, New York, U.S.A., that –

• (a) she is the duly appointed personal representative of the estate of Carol Blackman, deceased;

• (b) that Carol Blackman was her aunt and was known to her throughout her life;

• (c) that Carol Blackman lived at Oistins, Christ Church, Barbados, with Lewis Flemming up to the time of his death, a period of not less than 30 years;

• (d) that during that time Carol Blackman and Lewis Flemming lived together in all respects as husband and wife though they were not married;

• (e) that Lewis Flemming died in Barbados on the 2nd of February, 1981 and Carol Blackman died in Barbados on the 3rd of July, 1981; they had no children;

• (f) that within the statutory period of six months after the death of Lewis Flemming, Carol Blackman gave notice of her intention to receive her statutory portion of the estate of Lewis Flemming to Winnie Seymour Flemming of Scarborough, Christ Church, Barbados, by serving a copy on him at his then known address and serving the letter of notice on his attorneys-at-law, Messrs. Smith & Smith;

• (g) that before his death Lewis Flemming had made a will giving all his property to Carol Blackman with a condition that if she died before him, the property should go to Yvonne Chase;

• (h) that in 1975 he revoked that will and gave Carol Blackman all his property for life and at her death to his adopted daughter Omer Yvonne Hall;

• (i) that the plaintiff is asking the Court for a declaration that Carol Blackman was the spouse of Lewis Flemming as determined by the Succession Act Laws of Barbados at the time of his death and that Carol Blackman's estate is entitled to half the assets of Lewis Flemming's estate.

3 The defendant, Omer Yvonne Hall, executrix of the estate of Lewis Flemming, filed two-affidavits in opposition to that of the plaintiff — her own affidavit and that of Winnie Seymour Flemming, her grandfather. The gist of the affidavits is –

• (i) that Omer Hall was one of the executors named in the will of Lewis Flemming dated the 13th of February, 1975, the other executor named therein being Winnie Seymour Flemming;

• (ii) that on the 23rd of February, 1982 letters testamentary to Flemming's estate were issued to Omer Hall;

• (iii) that Carol Blackman was employed by Flemming as caretaker and shop assistant and in that capacity she was permitted by Flemming to live at his residence;

• (iv) that Carol Blackman and Lewis Flemming at no time lived together as husband and wife; moreover Flemming's wife Drucilla was alive until the early seventies;

• (v) that the notices referred to by the plaintiff in her affidavit were null and void in law and not in accordance with the provisions of the Succession Act, 1975–46; and

• (vi) that after Flemming's death Carol Blackman continued to live at his residence and did not duly account for the equipment, furniture, chattels and other merchandise left by Flemming on his premises.

4 The defendant seeks the following relief –

• (a) a declaration that Carol Blackman was not the spouse of Lewis Flemming;

• (b) that if she was his spouse, she failed to make an election pursuant to the provisions of the Succession Act and was therefore entitled under Flemming's 1975 will;

• (c) an account by the plaintiff of the description, quantity and value of the equipment, furniture, chattels and merchandise left by Flemming and Blackman on the premises;

• (d) her costs.

5 The election point was taken first on the basis that a decision on it could substantially resolve the matters in issue between the parties.

6 Section 93 of the Succession Act, Cap. 249 enacts — “(1) If a testator dies leaving a spouse and a child who is a minor or a child who is, because of some mental or physical disability, incapable of maintaining himself, the...