BARBADOS


[Unreported]


 


IN THE SUPREME COURT OF JUDICATURE


HIGH COURT


 (CIVIL DIVISION)


No. 629 of 2008                                                 


                                                                           IN THE MATTER OF THE ESTATE OF 

                                                            ALBERT MICHAEL SELBY, deceased

 


AND IN THE MATTER OF THE SUCCESSION ACT CAP. 249 of the Laws of Barbados


BETWEEN:


ALBERT ANTHONY PETER SELBY                                            PLAINTIFF


AND


KATRINA SMITH                                                                          DEFENDANT


 


BEFORE: The Hon. Mr. Justice Olson DeC. Alleyne, Judge of the High Court (Ag).


2008:  3 July;   


2010:  6 August  


 

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


 


DECISION


Introduction


[1]        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).


[2]        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.”      


 


[3]        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).     


[4]        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."


[5]        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 background


 


[6]        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.


[7]        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.


[8]        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. 


[9]        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 factual setting  


[10]      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.


[11]      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.


[12]      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.


[13]      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 questions


[14]      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.


[15]      Taking account of the defendant’s assertions and the relevant statutory provisions, these questions may be rephrased this way:


(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?


(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?


[16]      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.


Entitlement to grants of administration        


[17]      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 a discretion as to the person to whom administration may be granted.  


[18]      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. 


[19]      In her work Non-Contentious Probate Practice in the English-Speaking Caribbean, 2nd ed. at page 191, Karen Nunez-Teshira notes:


                        “The persons entitled in priority to take out a grant of letters of administration of an intestate’s estate are generally those entitled to benefit on an intestacy.”


                       


With particular reference to the position in this jurisdiction, she continues: 


                        "According to s. 19 of the Succession Act Cap. 249, the court has a discretion as to the person to whom administration is granted. However the practice in Barbados is to follow the order of priority with respect to entitlement to grants of letters of administration as set out in r.21 N.C.P.R. 1954, England, subject to the overriding discretion of the registrar to determine the ultimate order of priority with respect thereto."         


 


[20]      Any adoption of a practice based on the United Kingdom’s 1954 Non-Contentious Probate Rules (NCPR (UK)) necessitates a modification of those rules to exclude the obsolete reference to “illegitimate”. Such a reference might have been common place in 1954 but is now legally inapplicable in many Commonwealth jurisdictions as it is in Barbados.


[21]      Subject to that rider, it does appear that the practice followed by the Registrar of the Supreme Court of Barbados coincides with the order of priority set out in rule 21(1) of the NCPR (UK). The practice gives priority to surviving spouses followed by children, parents, siblings and next-of-kin, in that order.


[22]      Sections 48 to 55 of the Succession Act detail the persons entitled to inherit on intestacy. Subsections 49(2) and 51(1) are of direct relevance to this case.  The former subsection provides that if an intestate dies leaving a “spouse” and no issue but next-of-kin, the “spouse” shall take two-thirds of the estate and the next-of-kin shall share the remaining one-third in equal shares.  Subsection 51(1) applies if the intestate is not survived by a “spouse”, any issue or a parent but by brothers and sisters. In such a circumstance, the brothers and sisters are entitled to inherit the estate in equal shares.  


[23]      Hence, if the defendant is held or found to be the deceased’s "spouse" within the meaning of the provisions of the Act, she will rank first among those entitled to a grant of administration.   However, if held or found not to be such, the defendant has no right of inheritance and, ordinarily, would not be entitled to a grant of administration. In such an event, the plaintiff and the deceased’s other siblings would be entitled equally to the grant.


                       


 


            The second question


[24]      The above notwithstanding, Counsel for the defendant, Ms. Ciceley Chase Q. C., contends that even if held or found not to be the deceased’s spouse and, hence, not entitled to a share in his estate, a grant should be made in her client’s favour. She submitted that given the closeness of the defendant’s relationship with the deceased, her intimate knowledge of his personal and financial affairs, her contribution to the repair or improvement of his house and her partnership with him in a fishing venture, a Court should exercise the wide discretion bestowed upon it by sections 19(3) and 19(7) of the Succession Act and grant her administration, in preference to the plaintiff. In particular, she contends that the discretion conferred by section 19(7) is sufficiently wide as to allow for a grant to someone other than a person who would ordinarily be entitled.


[25]      In response, Mrs. Walrond submitted that unless the defendant is found to be the spouse of the deceased, it would be highly unusual and irregular for a grant of administration to be made in her favour.  She contended, further, that nothing about this case would be sufficiently exceptional to merit passing over a brother or sister of the deceased in favour of someone who has no beneficial entitlement under the estate.  Counsel contended, also, that the defendant’s claims of being in partnership with the deceased and, by agreement, expending money in repairing or renovating his property were matters that could properly be raised by her against the estate but should not prefer her for a grant of administration over the deceased’s siblings.   


 


 


Analysis


[26]      I accept Ms. Chase’s submission as to the extensive nature of the discretion conferred on the Court by sections 19(3) and (7). However, the Court must have due regard to the practice which informs the exercise of the discretion under 19(3).


[27]      Ms. Chase puts her emphasis on section 19(7).  I accept her submission that the discretion conferred by this provision is sufficiently wide to allow for the grant of administration to someone other than the person to whom the grant would ordinarily be made. However, before this can obtain, the Court must be satisfied that “because of the circumstances it appears to [it] to be necessary or expedient to do so.”


[28]      There has been judicial debate in the United Kingdom as to whether the "circumstances" of which a Court can take note in deciding whether to pass over persons ordinarily entitled must relate to the estate itself or its administration or whether it could extend to any other circumstances which the Court considers to be relevant.


[29]      The modern view is that expressed by Hale J, as she then was, in Buchanan v Milton (1999) 53 BMLR 176. She had occasion to review the scope of Section 116(1) of the United Kingdom’s Supreme Court Act, 1981 which provides: 


“If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.”


[30]      Hale J concluded that “special circumstances” were not limited to matters relating to the estate or its administration. She stated at page 178:


"There is very little modern authority on the use of s 116 … In Re Taylor (decd) [1950] 2 All ER 446 at 448 Willmer J, as he then was, was attracted by the view that the term ‘special circumstances’ relates only to special circumstances in connection with the estate itself or its administration. He therefore declined to interfere for the ulterior purpose of protecting a 21-year-old sole beneficiary from the consequences of her youth and alleged immaturity. But in Re Clore (decd) [1982] 2 WLR 314 at 318, [1982] Fam 113 at 117 Ewbank declined to impose any such limitation:


            ‘I would say that the words "special circumstances" are not necessarily limited to circumstances in connection with the estate itself or its administration, but could extend to any other circumstances which the court thinks are relevant, which lead the court to think it necessary, or expedient, to pass over the executors.’


[31]      Whatever view is taken of that matter, I am not persuaded that the statutory discretion should be exercised in favour of the defendant.  I have reviewed a number of cases cited in Parry & Clarke, The Law of Succession, (11th ed. 2002) pp. 406-407 and Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (18th ed., 2000), pp 352 et seq. They demonstrate that the Courts have used the power to pass over persons entitled in a variety of situations. However, in all cases, the circumstances must be such as to satisfy the requirements of the statute.


[32]      I am not satisfied that there is anything in this case that would make it necessary or expedient to make a discretionary grant to the defendant. If the defendant has no rights of inheritance with respect to the deceased’s estate, her only interest might be a claim to joint ownership in law or equity to property of the deceased or a settlement of any interest she may have in any partnership. I agree with Mrs. Walrond that the defendant would not require a grant to pursue these claims. Indeed, in the event the claims were contested or regarded as dubious, the defendant could not properly represent both herself and the estate.


[33]      Nothing points to any unwillingness, unfitness, unavailability, unfavourable characteristic or misconduct on the part of the plaintiff or the deceased’s other siblings. Closeness of relationship or familiarity with affairs, without more, is not enough to justify passing over persons primarily entitled to a grant. Nothing suggests that the plaintiff would be unable through the usual endeavours made by personal representatives to identify the deceased’s assets and obtain the information required to properly administer his estate. The defendant should co-operate in this regard.


[34]      Consequently, I hold that this would not be a proper case to award a discretionary grant to the defendant.


 


The spousal question


[35]      I turn now to the first question which requires me to decide whether the defendant could be classified as a “spouse” for the purposes of the Succession Act in light of the deceased’s marital status during the five year period immediately preceding the date of his death.   


           


The submissions


[36]      The submissions of Counsel focused on the interpretation of subsections (3) and (4) of section 2.  I reproduced these provisions at paragraph [5].


[37]      Mrs. Walrond contended that this question must be answered in the negative. She submitted that the word “single” as it appears in section 2(3) means “unmarried”. She submitted further that, while section 2(4) extends the meaning of the term “single” to include widows, widowers and divorcees, it does not go beyond that. Hence, according to Counsel, the defendant could not be a “spouse” since the deceased was not a “single man” for the requisite period.


[38]      Ms. Chase urged the Court to answer the question in the affirmative. She submitted that subsection 2(3) does not define the term "spouse" exhaustively and that it “clearly contemplates persons cohabiting with each other who are not married.”


[39]      She cited a number of cases including R (Quintavalle) v Secretary of State for Health [2003] 2 A. C. 687, Smith v Hughes [1960] 1 W.L.R. 830, Re Sigsworth [1935] Ch. 98  and Fitzpatrick v Sterling Housing Association Ltd [2001] 1 A. C. 27 and urged the Court to adopt a purposive interpretation “so as to determine that ‘spouse’ can include a married man cohabiting with a single woman for a period of five (5) years or more.” 


[40]      Further, Ms. Chase submitted that there is a presumption favouring a construction which updates the wording of a statute. She referred to the following passage from Vol. 44(1), Halsbury’s Laws of England 4th Edition at para. 1473:  


“It is presumed to be the legislator’s intention that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of an enactment which is contained in any Act whose language is not fixed in time corresponds to its legal meaning, should apply a construction which continually updates its wording to allow for changes since the Act was initially framed (an updating construction).          


Whether it is right in a particular case to apply an updating construction will depend on whether, on weighing the relevant interpretative factors, the court finds there are no countervailing factors having greater weight. The kinds of changes since an Act was passed that the court of construction may need to take into account include changes in the mischief which the enactment is intended to remedy, changes in the surrounding law, changes in social conditions, developments in technology, developments in medical science and changes in the meaning of the words. If it seems that the meaning of an expression used in the Act may have changed materially since the Act was passed, evidence may be adduced to establish the original meaning.”


            Counsel noted that the legislature had in the Family Law Act, Cap. 214, (the Family Law Act) passed 16 years after the Succession Act, defined the term a "Union other than a marriage" in such a way as to include a relationship between a married man and a single woman. 


 


The local cases


[41]      The interpretation of the term “union other than a marriage” as employed in the Family Law Act was the point in issue In the case of Dorothy Hutson v Julius Polius, High Court Suit No. 93 of 1982, (decision 16 February 1983). That was one of two local cases on which Counsel commented during the course of their submissions.  The other is Kinch v. Clarke et. al. (1986) 21 Barb. L. R. 50.


[42]      In Hutson, the Court held a relationship between a married man and an unmarried woman, which had met the required time qualification, to be a "union other than a marriage" for the purposes of the Family Law Act.  Section 39 of that Act defines such a relationship as existing -  


 "when a man and a woman who, not being married to each other, have cohabited continuously for a period of 5 years or more and have so cohabited within the year immediately preceding the institution of the proceedings." 


[43]      Williams J, as he then was, rejected the submission of Counsel for the respondent that the word “man” as contained in the above definition meant a single man and did not include a married man.


[44]      As was agreed by Counsel on both sides, this case is of no assistance in the interpretation of subsections 2(3) and 2(4) of the Succession Act. The significant difference in the two definitions is the absence of the word “single” before the words “man” and “woman” in the Family Law Act.


            Kinch v Clarke


[45]      Kinch v Clarke is more relevant. The plaintiff, an unmarried woman, claimed to have resided with the late Mr. Clarke for a period of fifteen years immediately preceding the date of his death. Apparently, Mr. Clarke had been married to another woman whom he had divorced less than five years before the date of his death.  The plaintiff claimed entitlement under the Family Law Act to a share of the properties owned by Mr. Clarke.


[46]     The plaintiff had filed her application some days after the first anniversary of Mr. Clarke’s death. This was one of three reasons why Williams J, as he then was, held, that the application could not succeed. He reasoned that the definition of the term “union other than a marriage” requires that there be cohabitation within the year immediately preceding the institution of the proceedings. The other two reasons related to sections 56 and 57(1), the court holding that the action was not proceedings within or for the purpose specified in those provisions.  


[47]      The Court went on to express the opinion that it did not appear that the plaintiff was “within the definition of ‘spouse’ in the Succession Act.” Williams J reasoned thus:


            Subsection (3) of section 2 enacts that for the purposes of the Act, reference to a ‘spouse’ includes a single woman who was living together with a single man as his wife for a period of not less than five years immediately preceding the date of his death. Subsection (4) enacts that, 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. It appears that Alfred Seymond Clarke was not divorced from the second defendant Osyth Clarke until September 5, 1978. It follows that up to that date the plaintiff was living not with a single man but with a married man and, Alfred Seymond Clarke having died in August 1982, the plaintiff could not qualify as a spouse under the Succession Act because she had not been living together with a single man as his wife for a period of not less than five years immediately preceding the date of his death.”


[48]      Naturally, Mrs. Walrond placed great store on this comment.  Ms. Chase submitted, however, that the opinion expressed by Williams J was merely obiter and, as such, is not binding.


[49]      I agree with Ms Chase’s submission in this regard. Kinch v. Clarke did not involve an application under the Succession Act. The issue in the case related to whether declarations were possible under the provisions of the Family Law Act. The Court held that the plaintiff was not entitled to such declarations for the reasons outlined above. Furthermore, Kinch is a decision of a court of concurrent jurisdiction and, as such, has no binding effect on this court.


[50]      I have had the benefit of argument from both sides on the interpretation of sections 2(3) and 2(4) of the Succession Act. I am entitled to consider the point anew and, in so doing, am free to approve or disapprove the dictum in Kinch.  


Analysis


(i)         Approach to interpretation


[51]      I will set out the interpretational issues that arise for consideration after essaying an overview of the mischief which section 2(3) was designed to correct and outlining the approach to interpretation which I consider appropriate.  


[52]      Prior to the coming into force of the Succession Act, parties to non-marital unions enjoyed no rights of inheritance with respect to each other’s estates unless granted by testamentary disposition. A surviving widow was entitled to a life interest in one-third of the realty of her deceased husband, though the Dower Act, 1878 allowed a husband to deprive her of this common law right by various means. A surviving widower was entitled, in certain circumstances, to a life interest in the entire realty of his deceased wife.  Generally, intestate succession was governed by the ancient rules of primogeniture and coparcenary. The eldest male took to the exclusion of all other relatives and, where there were no males, females of equal degree inherited equally.  


[53]      The definition of “spouse” provided in section 2(3) of the Succession Act was intended to extend the inheritance rights granted by that statute to parties to relationships meeting the requirements of the provision. The Act guarantees surviving “spouses” a certain minimum share of their deceased partner’s estate, whether that partner dies testate or intestate.   Section 49 provides that, on intestacy, a surviving “spouse” is entitled to a minimum of one-third or a maximum of the whole estate. The actual size of the entitlement is dependent on the surviving classes of relatives, if any. In the event of a will, section 93 grants the testator’s surviving “spouse” a legal right to a one-half share of the estate, if the deceased is not survived by a minor child or a child who is incapable of maintaining himself or herself because of some mental or physical disability. If the deceased if survived by such a child, the statutory right is to a quarter share of the estate.


[54]      In her article “Family Inheritance Provisions in the Barbados Succession Act – Redefining “The Family”, Lawyer of the Americas (1977) Vol. 9, No. 1 p. 115, 122, Norma Monica Forde commented that the Act “has significantly altered the law relating to succession and inheritance in Barbados”. She described the enactment of the legislation as a “serious attempt to align legislative development with social reality”.  In so doing, she had in mind the ameliorative provisions outlined above and those definitional provisions, not reviewed here, but which embraced children who were born out of wedlock within the regime of succession rights. Those provisions became redundant on 1 January 1980 with the coming into force of the Status of Children Reform Act, Cap. 222. That statute abolished the distinctions between children born within wedlock and those born without.  


[55]      The Succession Act, therefore, can, in some respects, be described as social legislation. It is intended, inter alia, to confer significant benefits on previously excluded categories of persons. It serves a distinct social purpose. That being so, I am inclined to the view that its purpose is best served if it is given as liberal and beneficial an interpretation as it allows linguistically. 


[56]      In R (Quintavalle) v Secretary of State for Health Lord Bingham summarised the required approach to interpretation in this way, at para. [8]:


“The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”


 


[57]      At para. 21 of the same decision, in providing justification for a purposive approach to interpretation, Lord Steyn adopted the following passage from the judgment of Hand J in Cabell v Markham (1945) 148 F 2d 737,739 which I endorse fully:


“Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”  


 


Lord Steyn went on to point out that –


“…nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, e g social welfare legislation and tax statutes may have to be approached somewhat differently.”


 


[58]      I am guided, also, by the following dictum of Lord Scarman found in Williams & Glyn’s Bank Ltd v Boland [1981] A. C. 487, 510:    


“The Court of Appeal recognised the relevance, and stressed the importance, of the social implications of the case. While the technical task faced by the courts, and now facing the House, is the construction to be put upon a sub-clause in a subsection of a conveyancing statute, it is our duty, when tackling it, to give the provision, if we properly can, a meaning which will work for, rather than against, rights conferred by Parliament, or recognised by judicial decision, as being necessary for the achievement of social justice…Nevertheless, the judicial responsibility remains - to interpret the statute truly according to its tenor. The social background is, therefore, to be kept in mind but can be decisive only if the particular statutory provision under review is reasonably capable of the meaning conducive to the special purpose to which I have referred. If it is not, the remedy is to be found not by judicial distortion of the language used by Parliament but in amending legislation.”


[59]      However, I do not accept Ms. Chase’s submission that this is a case in which         an updating construction is appropriate. There is no evidence of any     changes since the Succession Act was initially framed that requires an             application of such an approach.                                


 


(ii)        Interpretational issues           


[60]      I turn now to the issues of interpretation of which there are three. These     are: (1) is it open to the court to construe the term “spouse” as defined in       section 2(3) to cover categories of relationships other than marriages and      those between “single” persons? (2) does the term “single man” as it           appears in section 2(3) include a married man who has separated from his       wife?; and (3) does section 2(3) require that both or either party to the             spousal relationship must have been single throughout the period of five     years immediately preceding the date of death?


 [61]     The first two issues arise from the submissions made by Counsel. Neither side addressed the third one. Indeed, both parties proceeded on the assumption that section 2(3) contains such a requirement. This assumption also underlies the dictum of Williams J in Kinch v Clarke.  Nonetheless, I consider it to be an issue worthy of examination.


[62]      These interpretational issues revolve around section 2(3). I have reproduced that provision in full at paragraph [5]. Section 2(3)(a) is directly relevant to this case, where the male party to the relationship has died. It provides that the term “spouse includes” -


“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.”              


Section 2(3)(b) applies where the female partner dies. It is in identical terms to 2(3)(a) save that the phrases “single man” and “single woman” are interchanged.


[63]      Section 2(3)(a) contains a number of requirements: (1) a single woman must have (2) lived together with (3) a single man (4) as his wife (5) for a period of at least five years (6) immediately preceding the date of the death of the man.


           


(iii) Extent of meaning of the term “spouse


 [64]     I turn to the first issue of interpretation. This arose from a submission made by Ms. Chase.  I do not agree with her that it is open to the court to construe section 2(3) as covering categories of persons other than those captured by the natural meaning of the term “spouse” and those included in the extended meaning prescribed by the provision.


[65]      Ordinarily, the word “spouse” refers to a married man in relation to his wife or a married woman in relation to her husband. That is its natural meaning. It refers to a relationship based on marriage.  This meaning is consistent with that found in the Oxford English Dictionary (OED Online 2nd ed. 1989). Section (3) extends the meaning of that word by adding to it “single” persons who meet the other conditions specified in the provision.  It is an enlarging provision of the type identified by Lord Watson in Dilworth v Commissioner of Stamps [1899] A.C. 99, 105-106 in these words:  


“The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares they shall include.”


[66]      Sykes J reviewed a provision similar to section 2(3) of the Succession Act in the case of Murray v. Neita (Supreme Court Jamaica, decision 18 August 2006), a case that came to my attention after the hearing of this matter.  He was concerned with the interpretation of section 2(1) of the Property (Rights of Spouses) Act, 2004 which defines the word “spouse” in these terms:


                        “Spouse” includes-


(a)        a single woman who has cohabited with a single man as if she were in law his wife for a period of not less than five years;  


(b)        a single man who has cohabited with a single woman as if he were in law her husband for [a] period of not less than five years


immediately preceding the institution of proceedings under this Act or the termination of the cohabitation, as the case may be.”


           


Section 2(2) provides:


The terms “single woman” and “single man” used with reference to the definition of “spouse” include widow or widower, as the case may be, or a divorcee.”


 


 [67]     Sykes J began his analysis of section 2(1) at para. 23, in this way:


            “In Jamaica when the word spouse is used no one needs to have it defined because it is understood to mean a husband or a wife in heterosexual unions. If spouse is intended to be used in an unusual way then one would expect the legislature to indicate this unusual use by providing a definition. This is what was done in this case. It is to be noted that the statute did not say spouse means a husband or a wife in a heterosexual union and also a single man and a single woman living together for the stated period. It said spouse includes which could only mean the ordinary meaning of spouse is already included and need not be stated. A single person is not normally included in the word spouse that is why it was necessary to expand the definition once the legislature decided to use the same word to include persons who would not normally be included. It chose to use the word usually reserved for married couples.


[68]      I shall return to Murray v Neita when I come to the second issue of interpretation. However, for present purposes, I agree entirely with the above analysis and consider that it constitutes an apt description of the nature and effect of the enlarging definition of the word “spouse” as set out in the Barbados provision.   


[69]      The extension of the meaning of the term “spouse” to include “single” persons is the extent of the statutory enlargement.  It is not open to this Court to enlarge the term further, as urged by Ms. Chase. To hold otherwise would leave a Court to decide what categories of relationships should be included and what conditional factors should attend the grant of spousal status. These are matters for Parliament.


[70]      Consequently, on that issue, I hold that section 2(3) of the Succession Act is exhaustive of the meaning of the term “spouse”.  As defined in that provision, the term must be taken to embrace married couples and “single” persons who otherwise satisfy the statutory criteria.  However, other issues remain.


 


(iv) Does the term “single man” include a separated married man?


 


[71]      The thrust of Mrs. Walrond’s submission goes to the meaning of the terms “single man” and “single woman” as used in section 2(3) of the Succession Act. She submits that these terms refer only to unmarried persons and the categories of persons identified in section 2(4) namely, widows, widowers and divorcees.  


[72]      It is a matter for judicial interpretation whether the application of the terms “single man” and “single woman” as they appear in section 2(3) is so limited or whether they include married individuals who have separated from, though not divorced, their husbands or wives, as the case may be.    


[73]      In Jones v. Evans [1944] K. B. 582, Atkinson J reviewed a number of cases which establish that the term "single woman" as it appears in affiliation proceedings legislation includes a married woman who has separated from her husband and is not entitled to maintenance from him. He stated, at page 584: 


"There is no doubt that there are circumstances in which a married woman is a ‘single woman’ for the purpose of s. 3 of the Bastardy Laws Amendment Act, 1872. Two propositions are well established. A married woman who is living with her husband at the date of the application for an order of affiliation is not a ‘single woman’ and a married woman, who is not living with her husband at the date of the application may be a ‘single woman’.


 


[74]      In that case, the appellant had applied for an affiliation order pursuant to the mentioned statutory provision which allowed such applications to be made by a “single woman”.  She had been married to a soldier who had gone on overseas duty over one year prior to the birth of the child of which he was not the father.  The court held that since the husband and wife had been separated for a long period, and she had lost the right to maintenance and to live with her husband because of an uncondoned matrimonial offence, she had to be considered a “single woman” within the meaning of the legislation.


[75]      The rationale behind this construction was expressed by Lord Denman CJ in          R v Collingwood 116 E.R. 1025 where he noted, at p. 1029, that “the law,         differently interpreted, would fail to reach a very large proportion of   illegitimate children.”


[76]      In Taylor v The Supplementary Benefit Officer [1986] 1 F. L. R. 16, the Court of Appeal of England and Wales had to consider the entitlement of a claimant for a supplementary benefit under section 1 of the Family Income Supplements Act, 1970.  Her claim had been disallowed by the benefit officer.  The appeal to the Court of Appeal was the culmination of an appellate process which saw the Officer’s decision being reversed by a Tribunal and then restored by the Social Security Commissioner.


[77]      The legislation in that case made provision for the payment of a “family income supplement” for any family in Great Britain, if the weekly amount of its resources fell below a prescribed amount. Section 1(1)(a) provided that:


“(1)       For the purposes of this Act a family shall consist of the following members of a household –


(a)    one man or single woman engaged, and normally engaged, in remunerative full-time work;”


[78]      The claimant was a married woman whose husband had been sentenced to             nine months’ imprisonment. She had been left to care for herself and her son on a small weekly wage. The Court held that the husband was still a member of the household and, hence, the claimant and her son did not constitute a “family” within the meaning of the legislation.  The temporary absence of her husband from the household did not make her a “single woman.” 


[79]      However, in delivering the judgment of the court, without adverse comment, Watkins J referred to the practice of benefit officers to regard a married woman as a “single woman” for the purposes of the legislation where her husband had been imprisoned for a period exceeding twelve months. He acknowledged, implicitly, that, in appropriate circumstances, the court could do likewise.  In commenting on the submissions of Counsel for the supplement officer, he stated, at page 22:


“Mr Latham…further submitted that the commissioner was equally right in deciding that the matter should not be remitted to the tribunal for the fact-finding exercise to be undertaken. The commissioner was entitled to come to the conclusion that no reasonable tribunal could come to any other conclusion than that the applicant, at all relevant times, was not a single woman; she was in fact a married woman whose family at all times consisted of her husband and child.


It seems to me that the contentions of Mr Latham are irresistible. I should interpolate, before dealing with them further, this fact. Mr. Latham has informed us that it has apparently been the practice of supplement officers in cases where husbands have been sent to prison, leaving to fend for themselves their wives, to regard as a single woman for appropriate purposes she whose husband has been imprisoned for a period of 12 months or something in excess. That has been a rule of thumb test applied by supplement officers. Any period of imprisonment less than 12 months has been regarded by them as not sufficient separation of husband and wife as to entitle a supplement officer to come to the conclusion that she is to be regarded as a single woman.”


After stating that he was persuaded by the reasoning of the commissioner, Atkinson J continued:            


“The next question is therefore whether or not the


commissioner should have sent the case back for the tribunal to consider upon the facts whether or not the applicant can be regarded as a single woman.”


 


 


He concluded his judgment at page 23, in this way:  


“...[I]t would be an artificial exercise to send this case back  …the husband did earn full remission by his good conduct in prison; he did … go home to his wife in October 1982; he has remained with her ever since and the family are as united as they were before ever he went to prison. I do not see how anyone now can dispassionately divorce from their minds those facts in coming to a conclusion as to whether or not she is to be regarded as a single woman.”


 [80]     These cases are of relevance only because they demonstrate that, in appropriate cases, a Court may construe a statutory reference to a “single” person to include a married person who has separated from his or her marital partner.  I have to decide whether such a construction is possible in this case, given the nature of the legislation under consideration and, in particular, the terms of sections 2(3) and 2(4).


[81] The force of Mrs. Walrond’s submission against such a construction cannot be ignored. Some support for it is to be found in Murray v. Neita to which I referred at paragraph [66].


[82]      The Jamaican Act provides for the rights of “spouses” to family property. The claimant, Ms. Murray, had lived with Mr. Neita for over twenty years before their relationship ended.  He was lawfully married and, though separated from his wife, never divorced. The issue before Sykes J was whether Mr. Neita was a single man within the meaning of the word “spouse” as defined in section 2(1) of that Act.   


[83]      Turning to the extended definition of the word spouse, Sykes J stated at paras 24 to 25: 


“Within the extended meaning of the word spouse the adjective single appears before ‘woman’ and ‘man’. Single must have some meaning in the context. Single is an ordinary word which usually means unmarried. The word single restricts the class of men and women who can live together and be regarded as spouses under the Act. Had it been intended that spouse includes any man and woman living together then single would not have been included in the definition.


I am confirmed in my view by section 2(2). This section is what I would call a ‘removal of doubt provision’, that is, a provision that is not strictly necessary but is nonetheless desirable in order to put doubts to rest. What is crucial and ultimately determinative in my view is that Parliament did not extend section 2(2) to include a person who is lawfully married but separated from his or her spouse and living with some other person as if he or she were a single person. The case of the separated married person who might be living with someone else is so obvious that if there were the intention to include such a person within the definition of spouse the ideal place to have made this clear would be section 2(2). The fact of its omission is a powerful and determinative argument in favour of the conclusion that such a person was not intended to be a single man or single woman for the purpose of the legislation.” 


 


[84]      Sections 2(1) and 2(2) of the Jamaican legislation bear similarity to sections 2(3) and 2(4) of the Succession Act of Barbados. However, the interpretation of a provision contained in a statute regulating succession rights in one jurisdiction need not accord with that of a similar provision in a statute regulating spousal property rights in another jurisdiction.


[85]      Turning my attention to the Barbados provision, I am not persuaded that the effect of section 2(4) is to limit the categories of persons that may be considered as “single” for the purposes of the legislation. I agree with Sykes J’s characterisation of section 2(2) of the Jamaica Act as a “removal of doubt” provision. Section 2(4) of the Succession Act serves a like purpose. It was intended to settle any doubts as to whether divorcees, widows and widowers are “single” persons for the purposes of the legislation. It is a definition of the type described by Viscount Dilhorne in I.R.C. v Parker [1966] A. C. 141, 161, in this way:


“It is a familiar device of a draftsman to state expressly that certain matters are to be treated as coming within a definition to avoid argument on whether they did or not.”


 


[86]      At page 46 of his work, The Composition of Legislation, Professor Driedger described this type of provision under the caption “TO SETTLE DOUBTS”. It reads: 


“There are cases where there may be doubt whether a word means a particular thing. Includes is used, but rather than add a meaning it serves to settle the doubt.”  For example –


                        .....


            “unmarried person” includes a widow, a widower and a divorced person.”


 


[87]      That being so, it does not follow that the absence of a reference to married but separated persons in section 2(4) manifests an intention by Parliament that such persons are not to be included within the term “single”. I have demonstrated already that, depending on the context, the term “single” can sometimes be said to cover such persons. It is unclear whether, in the context of the Succession Act, married but separated persons should be regarded as single. Hence, if that category is omitted from section 2(4) that is clarifying in nature, it remains unclear. If it remains unclear, then it is a matter for judicial interpretation whether it is covered by the word “single” in section 2(3).  


[88]      There may be occasions when the word “include” can give rise to a restrictive definition. As I have reasoned above, section 2(3) provides one such example. However, there is nothing to suggest that section 2(4) has such an effect. I do not see how section 2(4) can be construed so as to restrict what is included in the word “single” to its natural import and the categories of persons identified in the clarifying provision. For what it is worth, I note also that, in many instances where the draftsman of the Act intends an exclusive and restrictive meaning, he makes it quite clear by use of the word “means”.  Thus, for example, in section (1) the words “administration”, “administrator”, “Court”, “grant”, “minor”, “pecuniary legacy”, “personal representative”, “Public Trustee”, “Registrar”, and “representation” are defined in an exclusive manner by the use of that word. 


[89]      In arriving at my conclusion, I have given consideration to whether the maxim expressio unius est exclusio alterius is applicable to section 2(4). The maxim is explained in Bennion on Statutory Interpretation 5th ed. p. 1250 at para 390, in this way:


“(1)      The maxim expressio unius est exclusio alterius (to express one thing is to exclude another) is an aspect of the principle expressum facit cessare tacitum. Known for short as the expressio unius principle, it is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless these are mentioned merely as examples, or ex abundanti cautela, or for some other sufficient reason, the rest are taken to be excluded from the proposition.” [Emphasis mine]


           


[90]      Hence, an application of the maxim supports Mrs. Walrond’s contention that section 2(4) is exhaustive of the categories of persons who, along with unmarried persons, could be regarded as single for the purposes of the Succession Act. However, the expressio unius principle must give way where there are reasons for the express mention of certain items other than an intention to exclude others. Bennion emphasises this at page 1258 in his comment on code 395. He states:


            “There is no room for the application of the expressio unius principle where some reason other than the intention to exclude certain items exists for the express mention of the items in question. Thus they may be used merely as examples, or be included ex abundanti cautela, or for some other purpose.”


 


[91]      In Colquhoun v Brooks (1888) L. R. 21 Q. B. D. 52, 65, Lopes J had this to say about the maxim:


“It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents.  The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.”


 


[92]      In my view, there is no room for the application of the expressio unius maxim to section 2(4) of the Act which is a clarifying provision.  The intent behind such a provision is to settle doubt or provide certainty as to its application to the included items not to exclude others.


[93]      Indeed, there is a judicial disinclination to hold that clarifying definitions are intended to cut down the width of a general provision or exclude consideration as to whether items, not included in a prescribed list, may be included within the meaning of a term.


[94]      In IRC v Parker, the House of Lords was called upon to determine, inter alia, whether the payment of a debenture was a “transaction in securities” for the purposes of the Finance Act, 1960.  Section 43(4)(i) defined that term as including –


“transactions, of whatever description, relating to securities, and in particular – (i) the purchase, sale or exchange of securities, (ii) the issuing or securing the issue of, or applying or subscribing for, new securities, (iii) the altering, or securing the alteration of, the rights attached to securities.”


 


[95]      The House of Lords disagreed with the view that the payment of a debenture could not be described as a transaction is securities; that to do so would be to give too wide an interpretation to the words “transactions of whatever description, relating to securities”; and that this seemingly wide provision had to be limited to transactions of the nature specified in the definition. Viscount Dilhorne, at page 404, expressed the opinion that the provision was a clarifying one and that he did not think it was right “to seek to interpret the general words in the light of the particular instances given in the section.”


[96]      In Coltman et al v Bibby Tankers Ltd.  [1988] A. C. 276, the House of Lords had to determine whether a ship could be considered “equipment” within the meaning of the term as defined in the Employer’s Liability (Defective Equipment) Act, 1969. 


[97]      The appellants were the personal representatives of the estate of a marine engineer who had died when the ship on which he was working sank off the coast of Japan.  They claimed damages against the ship’s owners on behalf of the estate and the deceased’s dependants. They alleged that the deceased’s death had occurred in the course of his employment and as a consequence of a defect in equipment which had been provided by the defendants for the purpose of their business; and that the defect was attributable to the defendant’s negligence within the terms of section 1 of the Act. They claimed that the ship had been defectively constructed and designed. The defendants denied that the ship was “equipment” within the meaning of the Act. That point engaged the attention of the courts as a preliminary issue.


[98]      Reversing the decision of the Court of Appeal and restoring that at first instance of Sheen J, the House of Lords held that, in the context of an Act which imposed vicarious liability on employers for defective articles, the word “equipment” in the phrase “equipment provided by his employer for the purposes of the employer’s business” was wide enough to include a ship provided by an employer for the purposes of his business.


[99]      The word “equipment” was defined in section 1(3) of the Act as including “any plant and machinery, vehicle, aircraft and clothing”. Having expressed the opinion that a ship would be comprehended in the term “equipment of the business”, as provided in section 1(3), Lord Oliver went on to consider the argument that the effect of the statutory definition of the word “equipment” was to exclude ships.  I will quote from his judgment, at length. He said at page 298:


“It is, however, argued that subsection(1) does not stand alone. It has to be read in the context of an Act which also contains subsection (3) and it is this which, in my judgment, constitutes the strongest argument for the defendants. Here, it is said, is a specific definition of “equipment” which goes out of its way to include plant and machinery, vehicles and aircraft and clothing. Is it conceivable, it is asked, that the draftsman of the statute, who evidently regarded himself as indicating, in subsection (3), particular articles which might possibly not be thought of as ordinarily embraced in the phrase “equipment provided...for the purposes of...business,” should have specifically included vehicles and aircraft but should have omitted any reference to vessels if such omission were not intentional? Thus, it is argued, if vessels were omitted deliberately from the expanded or clarifying definition in subsection (3) this demonstrates that the word is used in subsection 1(a) in a more restricted sense. My Lords, I have found myself unable to accept this approach to the problem of construction. To begin with, it is quite clear...that the word “includes” in subsection (3) cannot be construed as “means and includes” so as to confine that which is embraced in the word “equipment” to the exemplars there specified. Granted that there may be circumstances in which an inclusive definition of this sort can have a restrictive effect, that cannot, in my judgment, possibly apply in the case of this statute. Here, where the draftsman intends a restricted meaning, he makes it quite clear. One has only to contrast the definitions of “business,” “equipment” and “personal injury,” all of which are by reference to what is included with those of “employee” and “fault”, where the Act makes it clear that there is to be a single exclusive meaning for the purposes of the Act. Subsection (3) cannot, therefore, be used to cut down the meaning of the word “equipment” as it is used in subsection (1). It must have been inserted in the statute either for the purpose of enlarging the word by including in it articles which would not otherwise fall within it in its ordinary signification or it must have been inserted for clarification and the avoidance of doubt. For my part, I agree with Lloyd L.J ... that the definition is a clarifying and not an enlarging one.”


 


            Lord Oliver went on to stress the importance of the presence of the word “any” in the provision he was considering. 


 [100]   Given my conclusion on this issue, it is left for me to decide whether the term “single” as it appears in section 2(3) of the Succession Act should be construed to cover persons who are married but have been separated from their marital partners. In considering this aspect, I have taken account of the nature of the statute and the purpose of the provision.  I have paid regard to the policy that requires that the sanctity of marriage be respected. I have paid regard too to the policy that requires the law to be just and fair and court decisions to meet the ends of justice, including social justice.  I have remained mindful, always, that I should not give the language of the provision a meaning which it cannot reasonably bear.


 [101]   Further, I have considered the statute as a whole and, in particular, I have taken account of section 102(5) of the Act. Section 102 sets out the circumstances in which spouses are excluded from succession. Subsection (1) excludes, except by will, a spouse against whom the deceased obtained a judicial separation; a spouse who failed to comply with a decree of restitution of conjugal rights obtained by the deceased; and a spouse who is guilty of desertion which has continued up to the date of death for three years or more. Subsection (3) excludes anyone from taking a share as a legal right who has been found guilty of an offence against the deceased or any child of the deceased punishable by imprisonment for a maximum period of at least two years, or a more severe penalty.  Subsections (4) and (5) follow: 


“(4)      Where a husband and wife have ceased to cohabit with eachother and have been living apart continuously for a period of 5 years or more immediately preceding the date of death of either of them, the survivor shall be precluded from taking any share in the estate of the deceased as a legal right or on intestacy.


                       


(5)        Any share which a person is precluded from taking under the section shall be distributed as if that person had died before the deceased.”            


 


[102]    Thus, parties to a marriage who have separated from each other and have lived apart for more than five years cease to enjoy statutory rights of inheritance with respect to each other’s estate.  It matters not whether they are divorced. It matters not whether one or the other is guilty of desertion; has failed to comply with a decree of restitution of conjugal rights; or was subject to an order of judicial separation.  Once a period of separation of five years, or more, persists prior to the date of death of either party, all statutory rights cease.


[103]    In my view, a married man who has separated from his wife and who  establishes an enduring relationship with another woman with whom he lives, as her husband, is for all intents and purposes adopting the life of a single person. After five years’ separation, such a man has no statutory rights of inheritance with respect to his wife’s estate and she has none to his.  Any share to which the surviving marital partner would have been entitled otherwise is to be distributed as if he or she had predeceased the deceased partner.  


[104]    I find it difficult to accept that parliament could have intended that such a man and the woman with whom he establishes his new relationship are to be excluded entirely from the statutory benefits conferred by the Succession Act. Clear language would be required to compel such a conclusion.


[105]    There is a further point. The presence of section 102(5) demonstrates that the legislation has taken cognisance of social reality. It recognises that after a lengthy period of separation, marital relationships can be regarded as at an end, absence of a formal dissolution notwithstanding. Social reality is that some married persons who separate choose, for whatever reason, not to get divorced but go on to establish new relationships of some permanence.  The law must have regard to this reality.


[106]    I see no reason why such persons should not be regarded as “single” for the purposes of the Succession Act.  To so construe the statutory provision would be to enable a category of persons who have not been clearly excluded by the language of the statute to benefit from its provisions. That seems to me to be a result that accords with social justice, fairness and equality. It also lends to consistency in the law since such persons enjoy inter vivos rights under the Family Law Act. It does not prejudice   surviving marital partners since, by virtue of section 102(5), their rights evaporate when the qualifying period for the establishment of a spousal relationship, under section 2, is met.  Thus, there is no prospect that both a separated wife and a “single woman” who qualifies as a “spouse” can compete for benefits with respect to a deceased man’s estate.


[107]    Consequently, I hold that the word “single man” as it appears in section 2(3) of the Succession Act includes a married man who has separated from but has not divorced his wife. It follows that the deceased could be regarded as a single man for the purposes of the legislation and the defendant as a “spouse”, if all other material facts are established satisfactorily.


 


(iv) Must both parties have been single throughout the entirety of the  five year period?


 


[108]    The above conclusion is determinative of the first question. Nonetheless, although it is unnecessary for me to do so and, despite having not had the benefit of submissions from Counsel in this regard, I will render a short opinion on the third issue of interpretation which I identified earlier. It is whether section 2(3) requires that the parties to the relationship must have been single for the entirety of the five year period immediately preceding the date of the death of the deceased partner.


[109]    It appears to me that the provision is capable of two interpretations, one requiring that the parties maintain the status of singlehood throughout the relevant period; the other requiring, merely, that both be single at the date of the death of the deceased partner. This ambiguity arises because the term “single” is a descriptive one which connotes a state that may endure over a five year period or be changed within that period.


[110]    That the provision is capable linguistically of bearing the latter of the two interpretations is made obvious if, for analytical purposes, we replace the adjective “single”, with one that connotes a state that cannot remain constant over such a period. 


[111]    By way of example, if one substitutes the term “forty-year old” for the term “single” the relevant portion of the provision would read -  


            “a forty-year old woman who was living with a forty-year old man for a period of five years immediately preceding the date of his death.”


            So worded, the provision is capable only of one meaning: that both the man and woman who comprised the relationship must have been forty years old at the date of the man’s death.  


[112]    Thus, in interpreting section 2(3)(a), it is possible and reasonable to conclude that the adjective “single” which qualifies the terms “man” and “woman” is merely descriptive of a quality which the parties to the relationship must have possessed at the point in time immediately before the death of the deceased and not a state which must have endured for the five year period.


[113]    Given the social purpose of subsection 2(3), I see no reason to resolve any ambiguity in favour of an interpretation that would restrict the number of persons that would benefit from the provisions of the Act. In the absence of a clear provision requiring that the parties to the spousal relationship must have been single for the duration of the statutory period, I am of the view that it is sufficient that both parties are single at the date of death.


[114]    The deceased was divorced prior to the date of his death. Section 2(4) makes it clear that divorcees are considered “single” for the purposes of the definition of the term “spouse”. Hence, on this view, the defendant could be held to be the deceased’s spouse, were she to establish, satisfactorily, the other requirements of section 2(3).


[115]    For the reasons outlined above, I hold that the fact that the deceased was married during a part of the period of cohabitation with the defendant and was not divorced for a period of at least five years preceding the date of his death, as a matter of law, does not exclude the defendant from being regarded as the “spouse” of the deceased within the meaning of the term as defined in section 2(3) of the Succession Act.


                       


Disposal


 


 [116]   In the circumstances, I answer the two preliminary questions which I have been asked to determine in the affirmative, as to the first question and in the negative, as to the second one. I hold that the defendant would be the spouse of the deceased, if she establishes on a balance of probabilities that she cohabited with him, as his wife, for a period of at least five years immediately preceding the date of his death.  I hold further that, if for any reason she is found not to be the deceased’s “spouse”, she should not benefit from a discretionary grant.  


[117]    The parties are at liberty to have the factual issues determined by the Court.  Failing agreement by them, the matter should be set down for further hearing within forty two days of the date of this decision.


[118]    Each party should have his or her costs, certified fit for two Counsel, paid out of the estate, such costs to be taxed.


                                                                                        


Olson DeC. Alleyne Q. C.


                                                                   Judge of the High Court (Ag)