Selby v Smith
| Jurisdiction | Barbados |
| Judge | Alleyne, J. |
| Judgment Date | 06 August 2010 |
| Neutral Citation | BB 2010 HC 13 |
| Docket Number | 629 of 2008 |
| Court | High Court (Barbados) |
| Date | 06 August 2010 |
High Court
Alleyne, J. (Ag.)
629 of 2008
Mrs. Beverley Walrond Q.C. with Ms. Dawn Shields-Searles for the plaintiff Ms. Ciceley Chase Q.C. with Ms. Mary Hunte and Ms. Dawn Holder for the defendant
Succession - Meaning of “spouse” under the Succession Act — Whether defendant capable of being regarded as the deceased's spouse — Deceased was married to someone else during a part of the 5 year period immediately preceeding the date of his death but cohabitated with defendant — Whether defendant should be given a discretionary grant of held not to be the “spouse” of the deceased — Circumstances in which court should exercise discretion — Finding that it is sufficient that both parties are single at the date of death — Defendant would be considered the spouse of the deceased if it was established that she and the deceased cohabitated as husband and wife for at least 5 years immediately preceeding his death — If defendant not the deceased's spouse, she should not be awarded a discretionary grant of administration.
Administration of Estates - Whether the defendant was capable of being regarded in law as the deceased's spouse under the Succession Act where the deceased was a married man during part of the five year period immediately preceding his death — Whether the defendant should be given a discretionary grant if found to be a spouse — Whether the term ‘single man’ includes a separated married man — Whether both parties must have been single throughout the entirety of the five year period.
Alleyne, J. (AG.): This case raises some important points with respect to the interpretation and application of certain provisions of the Succession Act, Cap. 249 (the Succession Act).
The Succession Act came into force on 13 November 1975. It regulates a range of matters relating to succession. It is described in the Long Title as:–
“An Act to amend and consolidate the law relating to succession to the property of deceased persons, and, in particular, the devolution, administration, testamentary disposition and distribution on intestacy of such property, and to provide for related matters.”
A survey of the headings to the various parts of the Act reveals its comprehensiveness. It covers Devolution of Real and Personal Estate on Death (Part II); Executors and Administrators (Part III); Grants of Representation (Part IV); Administration of Assets (Part V); Distribution on Intestacy (Part VI); Provision for dependants (Part VII); Wills Generally (Part VIII-A); Soldiers and Sailors Wills (Part VIII–B); Conflict of Laws relating to Testamentary Dispositions (Part IX) Testator's Spouse's Legal Right and Provision for Children (Part X) and Exclusion from Succession and Disinheritance (Part XI).
Two aspects of the legislation feature in this case. One relates to entitlement to grants of administration and requires an examination of provisions falling within Part IV. Sections 19(1)(3) and (7) are of particular relevance. They provide as follows:
“19. (1) The court may grant administration (with or without the will annexed) of the estate of a deceased person, and a grant may be limited in any way the court thinks fit.
(3) The court shall have a discretion as to the person to whom administration may be granted.
(7) Where a person has died…and because of the circumstances it appears to the court to be necessary or expedient to do so, the court may, notwithstanding any enactment or rule of law to the contrary, grant administration of the estate of the deceased (with or without the will annexed) to an administrator upon his giving such security, if any, as the court directs, and such grant may be limited in any way the court thinks fit.”
The other aspect is the definition of the term “spouse” found in section 2 of the Act. The relevant provisions follow:
“2. (1) …
(2) …
(3) For the purposes of this Act, reference to a “spouse” includes
(a) a single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death;
(b) a single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.
(4) For the purposes of subsection (3), a reference to a single woman or a single man includes a reference to a widow or widower or to a woman or man who is divorced.”
(5) Notwithstanding subsection (3), only one such relationship as referred to in paragraph (a) or (b) of that subsection shall be considered for the purposes of benefit under this Act.”
The plaintiff is the brother of Albert Michael Selby (the deceased). On 16 April 2008, he applied for various orders relating to the administration of the deceased's estate.
The Application came on for hearing on 17 April 2008 and, on that occasion; I made orders to facilitate the disposal of the deceased's mortal remains and to preserve the assets of his estate.
When the hearing resumed on 3 July 2008, counsel requested me to consider two preliminary questions which might settle the issue as to which of the parties may be entitled to a grant of administration to the deceased's estate.
Before detailing those issues, it is useful to set out the factual context in which they arise. However, it must be noted that I have made no findings of fact in this matter. Indeed, the affidavit evidence of both sides remains untested by cross examination and counsel made no submissions relating to any disputes of fact. It has been agreed by both parties that I should take the facts as asserted by the defendant for purposes of considering the preliminary questions. Consequently, I set out the factual background without prejudice to the rights of the parties to have any disputes of fact determined at a future hearing, if they so desire.
The deceased died in Barbados on 11 April 2008, intestate. He had no children and his parents predeceased him. At the date of his death, he was cohabiting with the defendant but he was not married to her. When that cohabitation commenced, the deceased was married to another woman. A decree nisi of dissolution of that marriage was granted on 29 March 2004. That decree became absolute on 30 April 2004.
The parties accept that the defendant is, and was at all material times, unmarried. She swears at paragraph 9 of her affidavit which was filed on 17 April 2008 as follows:
“I rented an apartment at the Mount in the parish of Saint George where I resided and on or about the month of April 2002 [the deceased] and I started cohabiting there as man and woman up until on or about the month of March 2004 when we relocated to his residence…where we continued our cohabitation until his untimely death…”
On her evidence, she lived with the deceased for a period in excess of five years immediately preceding the date of his death. However, the defendant's case is that the period of cohabitation was less than five years.
In a second affidavit filed on 2 July 2008, the defendant asserts that she had assisted the deceased in his business ventures; was considered by him to be a business partner; by agreement, had assisted him financially with the repair of his house in which they resided; enjoyed an especially close personal and business relationship with him; and was very familiar with his business and professional affairs.
I am not required to determine the veracity of the defendant's claims or to resolve any dispute as to when the period of cohabitation began. For present purposes, I proceed as though the facts are as asserted by her.
The parties have asked me to determine: (1) whether the defendant is capable of being regarded, in law, as the deceased's “spouse” for the purposes of the Succession Act, given that the deceased was a married man during a part of the five year period immediately preceding the date of his death; and (2) whether the defendant should be given a discretionary grant, if held or found not to be the “spouse” of the deceased.
Taking account of the defendant's assertions and the relevant statutory provisions, these questions may be rephrased this way:
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(i) Assuming, without so deciding, that the defendant woman resided with the deceased man, as his wife, for a period of five or more years immediately preceding the date of his death (the relevant period), could she be regarded as his “spouse” within the meaning of the term as defined by section 2(3)(a) of the Succession Act, given that: (1) she was unmarried throughout the relevant period; and (2) he was separated from his wife but remained married to her for part of the relevant period?
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(ii) If, for whatever reason, the defendant is held or found not to be the “spouse” of the deceased, as the term is so defined, should she be preferred for a grant of administration over the plaintiff, assuming, without so deciding, that she enjoyed a close personal and business relationship with the deceased; had knowledge of his personal and business affairs and had assisted with the repair of his house?
Both these questions relate, in some way, to the entitlement to a grant of administration to the estate of the deceased. I will demonstrate how and go on to consider the second question first.
Grants of administration are regulated by section 19 of the Succession Act. I have reproduced the relevant provisions at paragraph [4]. Section 19(1) empowers the court to grant administration and to limit a grant in any way it sees fit. Section 19(3) endows the court with discretion as to the person to whom administration may be granted.
In this jurisdiction, there are no statutory provisions or procedural rules setting out the order of priority with respect to entitlement to grants of administration.
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