Citation: TT 2013 HC 202
Title: SAHADEO-EVANS v. EVANS
Country: Trinidad and Tobago
Court: High Court
Suit No.: FH 2255 of 2010
Judge(s): Ramkerrysingh, J.
Date: June 26, 2013
Subsubject: Administration of estates – Intestacy – Co-habitational relationships – Whether claimant was involved in a co-habitational relationship with the deceased for the requisite period – Whether the claimant was entitled to share a portion of the deceased’s estate – Whether the deceased held an interest or share in property situated in 25Ladoo Trace, Mc Bean Village, Couva.
Mr. Joseph Toney Instructed by Mr. Gray for the applicant
Mr. Garnet Mungalsingh Instructed by Ms. Arnim Hasnain for the respondents
- RAMKERRYSINGH, J.: The applicant, in this case who I shall refer to as “P”, filed an application on the 26th November, 2010 seeking: (1) a declaration that she and the Deceased shared a cohabitational relationship for the ten years preceding his death and (2) entitlement to his estate. The Deceased died on 9th September, 2010 leaving his wife, hereafter called “C” and his daughter, “K”, who are the respondents in the matter, surviving him.
- The Act governing this area of the law is the Distribution of Estates Act which amends the Succession Act 1981 and the Administration of Estates Act Ch 9:01. Although each of these statutes contains a definition of “cohabitant” and “cohabitational relationship”, these concepts were introduced by the Cohabitational Relationships Act 2000 to which an applicant must turn, in order to scale the first hurdle in a distribution of estate application, that is, the determination of whether or not a cohabitational relationship existed between the applicant and the deceased person.
- Once this legislative jump has been successfully crossed the next phase of the application is the distribution exercise as enshrined by section 25 of the Administration of Estates Act. The Distribution of Estates Act, by section 3, repeals sections 23, 24, 25 and 26 of the Administration of Estates Act to make room for surviving cohabitants. But to qualify under section 25, and in particular section 25(2) (Administration of Estates Act Ch. 9:01 – s. 25(2) as amended: Notwithstanding section 24, where an intestate dies leaving a spouse and a cohabitant and the intestate and his spouse were at the time of his death living separate and apart from one another, only such part of the estate as was acquired during the period of cohabitation shall be distributed to the cohabitant, subject to the rights of a surviving spouse and any issues of the intestate) which is the relevant section in this case, a cohabitant must prove unless it is undisputed, that the Deceased and the surviving spouse had been living separate and apart at the time of death. And in those circumstances the cohabitant is only entitled to that part of the estate acquired during the period of cohabitation. Further, any entitlement the cohabitant may have is subject to the rights of the surviving spouse and any issue. The sub-section therefore leaves little room, if any, for the exercise of any discretionary powers by the Court.
- I once attempted, and I hasten to add, unsuccessfully so, to exercise some equitable discretion in a matter (In The Matter of an Application by L. Narine; R-11078/2007) that, to me, cried out for equity, to meet the justice of the case as I saw it. I knowingly took a giant (and as I have always admitted in hindsight) treacherous leap, in exercising a discretion for which f had no legislative blessing, while disregarding one of our most solemn maxims that “Equity follows the law”, even risking an appellate rap on the knuckles in the process. The judgment was successfully appealed which came as no surprise to anyone, least of all me.
- I use that case, not as a comparison (the factual situation there was very different) but only to highlight the rigidity of the statute by which we are bound. The Court of Appeal’s decision (Narine v. Chune and Anor.; FHP 0011/2009;), which in essence confirms some of the Act’s restrictions, is a welcome guide, which for me, lifts the cloud of dubiety that sometimes hangs over these matters. I can now forge ahead unhesitatingly.
- It falls squarely on P’s shoulders to prove, on a balance of probabilities, that she and the Deceased shared a cohabitational relationship as envisioned by the Act. Only if she succeeds would she move on to the second phase of the exercise. On the other hand if she fails in her bid to prove that a cohabitational relationship existed, then her Application also fails. Her success or failure therefore turns on the strength of her case to prove cohabitation, but her written evidence contained wide variations and the trial revealed even more inconsistencies.
- P was given more than the average chance to put her case before the Court, but in the final analysis there were many shortcomings in the evidence. This is no criticism of Mr. Toney or his predecessor Mr. John. While I do appreciate the challenges that arise when conduct of a case is transferred from one Attorney to the other and the attorney taking over carriage of the matter feels obliged to mould his friend’s previously crafted writings to fit his own style, legal advice and interpretation of the law as he sees it, the preparation of the papers still depend on instructions received from the litigant. The differences in content between the two sets of prepared documents in this case are obvious, but one wonders if such crucial information as appears in P’s March 2011 affidavit was within her knowledge at the time she deposed to her earlier affidavits, how could it have escaped her?
- The issues that arise from the evidence are the following:
(i) Whether a cohabitational relationship existed between P and the Deceased for the requisite period under the Act;
(ii) Whether P is entitled to share a portion of the Deceased’s estate or at all;
(iii) Whether the Deceased held a share and/or interest in 25 Ladoo Trace Mc Bean Village Couva (Ladoo Trace);
(iv) Whether the Deceased contributed to the mortgage payments and utilities in relation to Ladoo Trace;
(v) Whether P is entitled to share in the following assets that is to say:
- Land at Charlieville, Chaguanas
- Motor Vehicle PCE 8903
- CLICO Life Insurance Policy
- Guardian Life Annuity
- ALGICO Annuity
- Money held at Scotia bank
- Gratuity from Solid Waste Management Company Limited (SWMCOL)
- Shares held at Cathedral Credit Union
- Money held at First Citizens Bank
- Money held at Unit Trust Corporation
- Damages from High Court proceedings HCA 5491 of 2003
FACTS — DISPUTED AND UNDISPUTED
- The undisputed facts of the case are that P and the Deceased shared a relationship. It is accepted that the relationship began somewhere around 1999 and that at some point either from 2002 if I believe C, or 2000 if P is to be believed, P and the Deceased lived at Ladoo Trace. There is also no dispute that the Ladoo Trace house was renovated during the time of the relationship and although C indicated that she was unaware of the renovations she agrees that the property was improved. Crucially there is also no dispute that the property was acquired before the alleged cohabitation. P accepts that C is the owner of the Ladoo Trace, although it took some time for her to come around to that position. From the time she instructed her former Attorney Mr. John in September 2010, through to the filing of her evidence and during the course of the proceedings, she altered her position as it related to the Deceased’s interest in Ladoo Trace.
- Finally there is no question that the Deceased died leaving C and K surviving him and that at the time of death he and C had been separated for a number of years.
- What is highly disputed is the nature of the relationship shared by P and the Deceased as well its duration. There was also much contention about P’s entitlement to Ladoo Trace and her financial contribution to its improvements, as well as her general involvement in the financial and other affairs of the Deceased, particularly his business enterprise, Classic Environmental Supplies.
- P claimed that she and the Deceased reared ducks and chickens for sale, using the proceeds, among other things, to defray the Ladoo Trace renovation costs, which at trial she confirmed altogether totalled $192,726.51. She said they derived about $4,000 per month from the poultry sales, but there is no proof of this. Both of P’s corroborating witnesses estimate that they reared about two dozen birds; hardly enough I would think to generate $4,000 per month. But the costs of the renovations were not the only expenses P claimed were met from the sale of the fowl. The disbursements extended to the payment of utility bills, purchase of groceries, and payment of the Ladoo Trace mortgage. It is highly unlikely that the poultry business generated a steady $4000 monthly income, but even if that were so, the sum seems hardly sufficient to meet the multitude of expenses P outlined. I hold that there is no conclusive evidence that the improvements were financed from the sale of the birds.
- P originally intimated that she played an integral role in the repair and renovation of Ladoo Trace but when pressed by Mr. Mungalsingh her role changed from financial contributor, to assisting with the renovations. At the cross-examination of one of her corroborating witnesses, who worked on the project over the years her role had been reduced further when he said that he never saw P doing anything in relation to the renovations. She was simply present when the repairs were carried out. Her discrepancies are too many to be ignored.
- When she moved into Ladoo Trace P said that the home was devoid of furniture and all that the Deceased had was a crude bed implying that C and K had taken all the furniture when they vacated Ladoo Trace leaving him with a simple uncomfortable bed and that he had furnished and equipped the home, buying all the household items as gifts for P. Although her corroborating witness agreed with her that the Deceased slept on a makeshift bed which he assisted in mounting, he also confirmed that this took place during the time when C and K were still at Ladoo Trace and the house was otherwise properly furnished. I presume that this may have been when difficulties arose in the marriage and the Deceased moved into another room. C and K contend that when they left Ladoo Trace the house was fully furnished and they took none of the furniture or appliances with them.
DID A COHABITATIONAL RELATIONSHIP EXIST? – WEIGHING THE EVIDENCE
(i) THE APPLICANT
- There were many inconsistencies in the applicant’s testimony. This became more evident at trial when she tried to clear up some of the discrepancies pointed out by Mr. Mungalsingh. One example concerned the Scotiabank joint account number 40009737 which she held with the Deceased. Two major concerns troubled me about this account. The first is that P failed to mention this account in her original evidence. The one asset that could bind her to the Deceased in a domestic relationship, she omits from her evidence. When she was cross-questioned about the account she could give little information about ft. She could not remember whether she used it to meet her education expenses; she did not know the opening balance of the account; finally she could not remember if she used the account at all. She appeared to be altogether confused about ft. Her uncertainty leads me to question the purpose of the account. It was a joint account, there ought to be no reason for secrecy, because it devolves to her on the Deceased’s passing, but her hesitant responses to questions posed to her about the account are puzzling.
- The second concern surrounded the timing of the opening of the account. P admits that for almost the entire length of their relationship she and the Deceased did not have a joint account, until this one was opened in 2009. He was diagnosed with prostate cancer in 2009 and by May 2010 he was bedridden. The sudden opening of this account, virtually on the eve of the Deceased’s death provokes the reasoned assumption that it was prompted by his illness and may have become necessary due to his deteriorating health and increased immobility at that time. He would have wanted to ensure that his immediate needs were met and thought it prudent for P to have access to some funds in order to meet those needs. Some of the transactions recorded on the statement support, at least, in part this assumption.
- I take judicial note that the account never had a substantial balance. In fact the statements provided by Scotiabank show only three deposits since it was opened: two each of $1,000 and another in the amount of $6,000 deposited on the opening of the account in April 2009, the 8th June, 2009 and the 29th June, 2009 respectively. On 12th May, 2009 a total of $770.75 was paid to the Tourism Institute of Chaguaramas, confirming that a payment was made to assist P with her school fees. Of the second $1,000 deposit small ATM withdrawals were recorded, as well as a card transaction sale at Rajaram’s Pharmacy for $319.00. Out of the $6,000 deposit there were several minor sale transactions debited from the account to Fortune Cook and Yammers Delight. I am uncertain of the nature of these businesses. Another minor transaction with M and A Limited for $150.00 on the 30th June, 2009 and $500.95 paid to TSTT on 5th July, 2009. A transaction involving the Southern Medical Clinic was also recorded on the 20th July, 2009, but I am unable to confirm details of the transaction.
- P’s evidence about the Ladoo Trace interest and improvements also bears many inconsistencies. Her former Attorney’s letters are damaging to her testimony as they contain statements (no doubt by her instructions) which she later altered, abandoned altogether, or were disproved by the evidence. By letter of the 20th September, 2010, P initially denied that C was the sole “legal owner” of Ladoo Trace “based on the fact that she (P) (sic) lived with the deceased … for more than ten (10) years.” She changes her tone a little more than two weeks later, in a letter dated 6th October, 2010 by which she indicated her willingness to vacate Ladoo Trace provided that she be reimbursed the sum of $192,726.50 “being monies SHE (My Emphasis) expended on the said property.” In her affidavits she swore that she and the Deceased carried out the repairs. As the trial unfolded and her witness Anthony Frankie gave evidence, it was evident that she took no part in the improvements whatsoever neither did she contribute to those improvements. During the course of the trial however, she agreed that C was the owner of the property.
(ii) THE APPLICANT’S WITNESSES
- Rafeek Mohammed’s testimony neither helped nor hurt P’s case. He was confused about the time when C and K left Ladoo Trace and when P began living there, but he was generally believable. His evidence that the Deceased told him that he gave C $1500 per month for her upkeep and to help with a mortgage is not as reliable. It appears too conveniently aligned with P’s evidence. He also went on to say that the Deceased confided in him that he (the Deceased) was paying C $700 per fortnight. Rafeek did not describe the details of the relationship he had with the Deceased other than he was his neighbour, or the circumstances surrounding the sharing of this confidence. Why would the Deceased confide in Rafeek, who from what he said in his affidavit seemed to have enjoyed just a neighbourly relationship with the Deceased? He has not convinced me that the relationship went beyond that, to the extent where the Deceased felt comfortable sharing matters of a family mature with him. The Deceased is not here to corroborate those conversations. I will not take these statements into consideration for the reasons mentioned and their inadmissibility in any event.
- The other corroborating witness Anthony Frankie also did not help P’s case, but like Rafeek Mohammed I believe his testimony. He knew the Deceased from the time he was about 17 years old and was friendly with both P and the Deceased. But he claims that the Deceased only brought P to Ladoo Trace in 2010, but this is clearly an error. He confirmed that in 1990 when he visited the Deceased at Ladoo Trace, C and K were living there. He also recalls on these visits that he observed that the house was furnished and that in 1990 he helped the Deceased to mount a make-shift bed in a room downstairs, but there were beds in all the other rooms upstairs, which was furnished with the usual household furniture. At some point, he does not remember when, he noticed that C and K were no longer there and up to the time of their departure he did not see a moving vehicle or any movement to suggest the removal of furniture. This brings into .question P’s evidence that the house was devoid of furniture when she moved in. Undoubtedly, some items were purchased by the Deceased during the period of cohabitation bUt.Anthony Frankie’s- evidence seems to corroborate C’s and K’s that some of the furniture removed by P may have included items acquired before the cohabitation.
- Frankie said that he knew that Ladoo Trace belonged to the Deceased, but does not say how tie came by this knowledge. This is not supported by the evidence and I reject it, but not because I think he was being untruthful; he may simply have made an assumption based on his observations. This witness also gave useful information, which I accept, about the renovations done to Ladoo Trace. He confirmed that work was done on the roof and gate and that he helped with the painting and tiling. He said that P did not do anything other than being present during the renovations.
- Both witnesses swore that P and the Deceased reared ducks and give similar estimates on the number of fowls they looked after, somewhere in the vicinity of about 25 or more and that they catered to people in the immediate area and who knew they sold the birds.
(iii) THE FIRST RESPONDENT
- C was fairly confident during her cross-examination. Her testimony was consistent with her filed evidence. A contention of some significance was the commencement of the cohabitational relationship. P and her witnesses say that the relationship started in 2000 while C said she left Ladoo Trace with K in 2002. This shortens the period of cohabitation by two years and although it would not affect the five-year statutory requirement, the statement affects P’s credibility.
- When questioned by Mr. Toney C said that she was advised by her Attorneys that as the Lawful Wife of the Deceased she was authorised to apply for Letters of Administration of his estate but she was willing to share with P. Her actions were not malicious. She accepts that P and the Deceased lived together and that she might be entitled to a portion of his estate. She had shown good faith from the inception and a general propensity to do the right thing. I have taken the time to mention this in order to strengthen my level of satisfaction with the credibility of her evidence.
- After they separated she and the Deceased communicated. From their separation to his death C confirms that there was an informal arrangement whereby they shared the utility bilk. As the years rolled on she did not visit Ladoo Trace and admits that when the Deceased became immobile she did not visit. She also accepts that during his last months, P and members of her family cared for him.
- When did this relationship start? Both C and K are clear that the cohabitation began in 2002 and not 2000 as stated by P. C marks the start of the relationship after she and K left Ladoo Trace. She has a distinct recollection that it was October 26th 2002 the day before Divali. K also marks the day with a distinct memory as a Form 2 student at Bishop’s High School. These are very specific markers that have helped these witnesses to make a precise note of a significant day in their lives. On the other hand, P makes no connection between the start of the cohabitation and any significant event in her life. She describes the relationship blossoming from that of colleagues to sexual intimacy and finally to cohabitation. She admits that when she moved in C and K were no longer there. Her corroborating witnesses support her but they were not as convincing at trial.
- I prefer the evidence of the respondents in this regard and find that the cohabitation could not have started before the respondents left Ladoo Trace in 2002. There is no evidence that P and the Deceased lived anywhere else. I therefore hold that the relationship began in 2002.
(iv) THE SECOND RESPONDENT
- Perhaps in an effort to reduce the significance of the relationship between P and the Deceased, K said that the Deceased never spoke to her about P. While she painted a picture of a close father-daughter relationship, saying that she and the Deceased engaged in conversation over a wide range of topics, I do not accept her evidence that none of those topics included discussions about P, particularly in light of paragraph 10 of her affidavit, by which she said she began seeing P, at Ladoo Trace and she “asked him to tell her (sic) if he was in a serious relationship with her …”. She went on to give the ‘Deceased’s description of the relationship. So there was discussion about P. Her implication that the relationship between P and the Deceased started only in about 2010 is not supported by the evidence and I reject it.
SUMMARY OF THE EVIDENCE ON ESTABLISHING A COHABITATIONAL RELATIONSHIP
- The filed evidence and cross-examinations produced the following pertinent revelations:
(i) The Deceased, seemingly almost as a deliberate act did not name P as a beneficiary to any of his assets, although there was ample time between his diagnosis and death during which he could have done so. I use the word “deliberate” because even if the Deceased neglected to provide for P, because psychologically, he wanted to avoid or delay thinking about his own mortality, when faced with it in the last few months even the most terrified mortal, would in the face the reality of his imminent demise, put aside his fears to make provision for a loved one. In this case it is not unreasonable to think that the Deceased could have used the time left to him, to ensure that P’s interest in his estate was secure, especially since C and K were still alive.
(ii) The Deceased did absolutely nothing to change the named beneficiaries and in cases where there was no named beneficiary he did not name P as the beneficiary. P accepted that she was not named as beneficiary to any of the Deceased’s assets, saying that she could not speak for him as to why he had not nominated her. And when it was put to her that the Deceased provided no financial protection for her, she agreed.
(iii) The Deceased came from a large family of seven siblings. One could assume that he and his mother shared a dose relationship during their joint lives, since she was named as a beneficiary to at least one of his assets. P described the Deceased as a “lime’ who always organised parties. They attended social events together at work, but throughout their relationship, there is a remarkable absence of any interaction between P and the Deceased’s family. There is no mention of them at all in her evidence. In fact P was unsure of the number of brothers and sisters the Deceased had. He did not take her to any family gatherings as verified by K who had never seen her at a family event, and P admitted that she was not introduced to nor did she socialize with the Deceased’s family. Even when the Deceased’s mother died P admitted that she did not attend because she “had a prior engagement’. This family exclusion, whether by intention or design is not indicative of someone prepared for those closest to him, to look upon and treat his companion as a spouse.
(iv) The only asset that P had a direct connect with during the relationship was the joint account mentioned above (See paragraphs 15 et al) about which I have outlined my concerns.
Application of the Law
- Justice of Appeal Warner at page 14 of her judgment Mohammed v. Albert Cv. A. No 165 of 2004 opined that living “on a bona fide domestic basis … connotes ties pertaining to home, household and family affairs. Crucial factors would be society, support and protection. These are the hallmarks of society.” If one compares that to the concerns raised in paragraph 29 above it is obvious that some of the significant underpinnings of home, household, family affairs and protection are remarkably absent. Does the exclusion from extended family members and the failure to provide for a companion in the event of one’s death, reflect a lesser mutual commitment to a shared domestic life? Does the absence of these features destabilise a cohabitational relationship? Undoubtedly the presence of these characteristics makes the determination of cohabitation easier, but because of the infinite number of ways that cohabitants may choose to share their lives together, persons may co-exist sharing a little or a lot of their lives and still be living as cohabitants. Where does one draw the line between a casual long term commitment and cohabitation? The Deceased may have had his reasons for keeping P away from his family and not all live-in partners, married or unmarried, provide for one another during their lifetimes.
- As a report (Reform of the Intestate Succession Act; Alberta Law Reform Institute; Edmonton, Alberta; Report No. 78; June 1999 The report came about during Alberta’s reform of its 1670 Intestate Succession Act to reflect a more modern society, and its proposals included provision for surviving cohabitants.) on the reformation of the Intestate Succession Act prepared by the Alberta Law Reform Institute pointed out, there are innumerable ways (Supra Page 113: The challenge with cohabitants is that they live in relationships that have varying degrees of commitment. The relationship can be one of the following: 1) short-lived with little or no personal commitment, 2) a prelude to marriage, 3) a trial marriage; 4) a stable union but with no intention that the parties have any responsibility to each other should they separate or should one of them die, 5) a relationship involving a lifelong commitment to the other partner) in which cohabiting couples conduct their lives, ranging from intimate room-mates with no financial or other attachments, to long-term committed monogamy. The challenge is to determine which one of the multiple variations of five years’ duration and more, qualify over others.
- We are all familiar with the guidelines adopted by Delzine v. Stowe. The ones relevant to this case include: (1) duration of the relationship; (2) the nature and extent of the common residence; (3) whether or not a sexual relationship existed; (4) the degree of financial dependence or interdependence, and any arrangements for financial support between the parties; (5) the degree of mutual commitment to a shared life; (6) the performance of household duties and (6) the reputation and public aspects of the relationship. P and the Deceased lived under the same roof for at least eight years. During that time she cleaned, cooked, and laundered the Deceased’s clothes, engaged in sexual intercourse and generally played a housewifely role in the relationship, and although these cornerstones which are part of any common-law Union were not mentioned by P until her fourth affidavit filed in March 2011, the evidence was not challenged. In any event it is reasonable to assume that after eight years this would have been the pattern of life the Deceased and P adopted. They lived together at Ladoo Trace for the duration of their relationship. P would have been dependent on the Deceased to provide her and the household generally, with necessaries, since he was the sole breadwinner, after she left her job and became a housewife in 2003. Although the Deceased kept her away from his family, there is evidence that they shared a life together and were committed to each other to the exclusion of others.
- The cross-examination was a useful test of P’s knowledge of the Deceased’s affairs and the role she played. It revealed that he was careful to keep P out of his financial affairs and business dealings, which was evident in how remarkably little she knew about some of the assets to which she is now claiming a share. For example she said at trial that she knew nothing about the Charlieville property being sold to C in June 2008. The sale was confirmed by Deed registered as number DE200801540393 and the property later conveyed to K in 2010 by Deed DE201001586902. P admitted that the Deceased never told her of the sale and transfer although these transactions took place during the cohabitation.
- When cross-examined about the Deceased’s maintenance business, Classic Environment Supplies and Services, of which P claimed to be a Partner, she said she oversaw invoices (I am unsure what she meant by that statement), and paid workers. Having been given more than ample opportunity to amplify her evidence, P mentions this for the first time at the trial. She admitted that the Deceased was the only signatory to the business account, but as the cross-examination continued, it was clear that she knew little else about the operation of the business and its account. She could not remember the name of the street on which the office was located and filed nothing to support her claim that she helped in the business. For these reasons i do not accept that she played any part in the business.
- P insisted that the Ladoo Trace electricity bill was paid by the Deceased using his credit card. The evidence revealed that the hills were paid by C, and there are other examples of her ignorance of the Deceased’s financial affairs.
- The Deceased kept P at arm’s length from his family and on the periphery of his financial affairs, but I do not find that P was less of a lifetime partner, than a fully committed or entitled cohabitant. The Deceased compartmentalised his life, keeping the main parts separate for reasons best known to him. He continued to be committed to each sphere of his life, albeit differently. Although it was open to them, neither he nor C filed for divorce. The Deceased had eight years within which to marry P if he wanted. He could have made provision for her, when it became certain that she was sure to survive him. He chose not to. Not having done these acts however, does not erase the existence of the basic characteristics of cohabitation mentioned above (Paragraph 31). P’s case is strengthened by the fact that she and members of her family cared for the Deceased, took him to his doctor’s appointments and arranged his funeral.
- Overall, P presents a case that, on a balance of probabilities, just tips the scales in her favour to prove that it is more likely than not that she and the Deceased lived together in a cohabitational relationship. It certainly is not the strongest case, but there are elements present in the evidence from which one can conclude that she and the Deceased lived in a common law union. I therefore declare that a cohabitational relationship existed.
- Before moving on to the distribution exercise, I will comment on the heavy weather made about the fact that C and the Deceased were living separate and apart before he died, which formed a large part of Mr. Toney’s closing arguments. Let me put this issue quickly to rest, by referring to section 25 (2). For a surviving cohabitant to succeed under this section, he/she must show that the intestate and surviving spouse were living separate and apart at the time of death. It is undisputed that this was the state of affairs in this case.
DISTRIBUTION OF THE ASSETS
- Section 25(2) provides that a surviving cohabitant is only entitled to that part of an intestate’s estate acquired during the cohabitation, subject to the rights of the surviving spouse and any issue. If my interpretation of that section is correct it means that without more, assets acquired during the cohabitation, devolve to the estate of the Deceased to be shared among the surviving cohabitant, his or her surviving spouse and any surviving children.
- Taking the argument further does this mean that all assets acquired during the cohabitation in which the Deceased had an interest, fall to be distributed to the surviving spouse? All assets comprising an intestate’s estate are to be distributed to any surviving child or children, whether or not acquired during a period of cohabitation, or whether or not acquired by a surviving cohabitant, or spouse. Is a surviving spouse entitled to an asset acquired during the cohabitation by the joint effort of the Deceased and that cohabitant? In such a case the spouse would only be entitled to a portion of the Deceased’s share, exclusive of any interest of the cohabitant, subject to any written instrument to the contrary. Additionally, a spouse and children are entitled to assets accruing to the intestate’s estate whether or not acquired by the deceased. Conversely section 25 (2) restricts a surviving cohabitant only to assets acquired by them during the contribution. I interpret that to mean that if the Deceased was survived by a spouse and a cohabitant, any asset not acquired by him during the cohabitation but which formed part of his estate at the time of death, will be distributed to surviving spouse and children only.
- Section 24 (2) entitles a surviving spouse and issue to any part of an intestate’s estate, but where there are surviving the intestate, a spouse and a cohabitant section 25 (2) restricts a cohabitant only to that part of the estate “acquired” during the period of cohabitation. Whereas by section 25 (1) there is no room for the Court to treat a cohabitant differently from a spouse, section 25 (2) may require some judicial inquiry in order to determine distribution.
- In Leela Leanne Narine v. Andre Chune and Sacha Chune FA No. 11 of 2009 Jamadar, JA. in an appeal from this Court, in clarifying the position enshrined by section 24(2) in comparison with sections 25(1) and 25(2) said:
“From these provisions there can be no doubt that the intention of Parliament was to provide for cohabitant on intestacy as prescribed in section 25. There can also be no uncertainty that section 25(1) equates a cohabitant with a surviving spouse of an intestate where a deceased cohabitant leaves no surviving spouse. This is to be contrasted against the situation where an intestate leaves a spouse and a cohabitant. In this latter case a cohabitant can only seek a claim to such part of the estate that was acquired during the period of cohabitation subject to the rights of a surviving spouse and any will of the intestate.”
- Jamadar, JA. was dear that this Court was wholly wrong to embark upon an inquiry of contributions made by the parties towards. the acquisition of the assets and stressed that this type of inquiry should only be carried out where an intestate is survived by a surviving spouse, and a cohabitant and the intestate and his spouse were living separate and apart at the time of death. The Appellate Judge went on:
“It is only in cases under section 25 (2) where there is both a surviving spouse and a cohabitant that an inquiry into the estate acquired during cohabitation can be undertaken by the Court.”
- By section 24 sub-sections (3) and (4) of the Administration of Estates Act when an intestate dies leaving a spouse and one child, or more than one child surviving him, the estate is to be distributed in the proportions of half to the spouse and the remaining half to the child or children respectively. Section 25 (1) gives a surviving cohabitant the same testamentary rights as a surviving spouse. When the intestate dies leaving a spouse and a cohabitant; as well as issue, how then should the fractional division be calculated? It could not be the intention of the legislators to reduce the interest of the issue of the deceased to accommodate a cohabitant. It is my understanding therefore that whether or not there is a surviving spouse and a cohabitant, or a spouse alone or a cohabitant alone, the share of an issue or issues remains intact, that is to say one-half of the intestate’s estate. That leaves the remaining half, which, if both the spouse and cohabitant are entitled, should each take one-quarter of the remainder. Taken together and if my interpretation is correct, these sections suggest a division of an intestate’s estate in the proportions of one-half to surviving children, and one-quarter each to the surviving spouse and cohabitant in the ratio of 1/2 : 1/4 : 1/4.
- It is against this backdrop that I have embarked on the distribution of the Deceased’s estate. For convenience I have taken each asset separately, as claimed by P and described in her Notice of Application filed 26th November, 2010.
(i) A PARCEL OF LAND AT CHARLIEVILLE CHAGUANAS
- The Charlieville land was purchased by the Deceased sometime before 27th February, 1991 (No documents were produced to indicate when the Deceased came into possession of this parcel of land, but the Deed of Release registered as No. DE200102710457D001 and exhibited by the applicant as [I] to her affidavit filed on 18/03/11 refers to a mortgage taken out by the Deceased secured by the property dated the 27th February, 1991) and sold to C in 2008 and conveyed to K in 2010. The property was acquired before the relationship began so that alone puts it out of P’s reach. At the time of the Deceased’s death the property had already changed hands and he no longer held any interest in it. It therefore does not form part of his estate.
(ii) A MOTOR VEHICLE PCE 8902
- The Nissan Almera was purchased by the Deceased during the relationship and presumably registered in his name. There is no evidence that P contributed to it but she said that the Deceased told her that it was bought for their joint use. At the time of its purchase P did not have a driver’s license and indeed only obtained one on 23rd November, 2010. It is only reasonable to assume that the vehicle was used by the Deceased for him and P to get around and-conduct their domestic affairs. It fails to his estate to be divided among P, C and K.
- The value of the car at the time of his death was $50,000. Mr. Mungalsingh argued that the $10,000 spent by K to repair the car after it sustained damage in a collision in which P was driving; ought to be deducted from the value, leaving the remaining value of $40,000 for the estate. I do not accept that argument because in essence it is the car itself that falls to the estate. For the purpose of taking an inventory the value of the asset is taken into account. It is up to the administrator to decide how a particular asset will be distributed or divided. Unlike real property or liquid assets, there are innumerable ways in which chattels can be divided, In the case of the car one might want to leave the vehicle with one beneficiary, while the others enjoy a share of its monetary value, or it might be sold and the proceeds divided accordingly, after any relevant deductions. With the rapid depreciation of such an asset it may be prudent when the time comes for distribution that the current value be ascertained. I would leave it up to the Legal Personal Representative to determine precisely how this asset is to be divided.
(iii) A LIFE INSURANCE POLICY AT CLICO
- P claimed a Life Insurance Policy held by the Deceased with Colonial Life Insurance Company Limited, but there is no evidence before me of such a policy. I make no orders in relation to that claim.
(iv) AN ANNUITY AT GUARDIAN LIFE INSURANCE COMPANY
- The Deceased was entitled to two annuities taken out by SWMCOL with Guardian Life (GL) on behalf of its employees; a Lifestyle Plan and a Top Hat Executive Retirement Plan. The Lifestyle was taken out in October 1997, that is, before the cohabitational relationship began. Top Hat commenced in December 2001. By my calculation the relationship began in 2002, which excludes Top Hat from distribution to P, but even if I am wrong in drawing that conclusion, the GL’s witness Dana Renwick explained that contributions to both plans were made by SWMCOL. According to her SWMCOL takes out the pension policies on its employees and “they (SWMCOL) are the owners … Any payments would be made to SWMCOL. The company would pay the monthly premium” (Evidence of Dana Renwick). In both cases no contributions were made by the Deceased himself and since SWMCOL are considered the owners of the policies, the Deceased could not have been acquired them before his demise.
- The cumulative pay-out of the Lifestyle Plan would of course go to the estate but because it is considered an asset that was not acquired by the Deceased during the cohabitation P will not be entitled to share in it. On the other hand, C being the surviving spouse, is automatically entitled to it, without qualification, as is K, who are not restricted by section 25 (2). In the case of the Top Hat policy, the Deceased named K as the beneficiary of Top Hat.
- For these reasons P is not entitled to either of these policies.
(v) AN ANNUITY WITH ALGICO
- As part of his employment the Deceased was insured under a Group Life policy with Algico. The Human Resource Officer of SWMCOL, Mr. Harry Murray testified that, “SWMCOL has an insurable interest on the lives of its employees. They pay the premiums (Evidcence of Harry Murray, HR Manager, SWMCOL – 09/10/2013). The value of the Deceased’s Group Life was $199,000 but Mr. Murray was Unable to say whether it had been paid out. The effective date of the policy was 1st October, 1981. No other useful information was presented, but from the effective date, it is my judgment that it was not acquired during the cohabitation. P is not entitled to share in it.
- This policy is therefore to he distributed between C and K.
- A smaller Flexible Payment Retirement Annuity policy taken with ALGICO in the amount of $9,050.90 commenced on 1st August, 2007. This policy was acquired by the Deceased during the course of the cohabitational relationship. P is therefore entitled to a portion of it, but she would have to share it with C and K.
(vi) A SUM OF MONEY IN SCOTIABANK
- In June 2009 the Deceased opened a business chequing account number 1201095 with Scotiabank for his business Classic Environmental Supplies. The opening amount was $500. There was a steady increase in the account with a credit balance of $30,878.09 at the time of his death.
- P is entitled to share this amount with K and C since it was opened and maintained during the period of cohabitation.
- The Joint Account number 400009737 also opened in 2009 with a balance at the time of the Deceased’s death of $172.81 does not fall to his estate. As the surviving holder of this account it falls automatically to P.
(vii) GRATUITY AT SOLID WASTE MANAGEMENT COMPANY LIMITED
- No gratuity payment was made to the Deceased. However a cheque in the amount of $12,105 representing vacation leave accumulated during the period of cohabitation. This amount goes to the estate and all three persons entitled to a share.
(viii) A SUM OF MONEY AND SHARES AT THE CATHEDRAL CREDIT UNION PORT OF SPAIN
- The credit union account was opened on 6th November, 1986. In October 2002 the amount in the account was $13,383.22. In September 2010 the time of his death the credit balance was $33,136, making the amount accumulated during the cohabitation total $19,735. This sum ($19,735) will be shared among P, C, and K. C and K to share the remaining amount.
(ix) A SUM OF MONEY AT FIRST CITIZENS BANK
- Two accounts held at First Citizens Bank in the name of the Deceased are recorded. The first account number 1934501 was a joint account held in the names of C and the Deceased and therefore does not form part of the estate. The second account number 10667781001 was in the Deceased’s sole name. According to the bank’s representative Mr. Devon Mc Cauiin the balance on this account as of 23rd September, 2010 was $11,847. However at the time of the Deceased’s death two weeks prior, that is to say on 9th September the balance would have been $0.00. The amount remained at zero balance at the time of the Deceased’s death.
- I contemplated over the $11,847 which represented salary deposit. Although deposited after his death the Deceased would have worked for this amount before he died, but salaries being paid in arrears, he would not have been entitled to benefit from same until the month end. The salary was accredited to him after his death and accordingly after the cohabitation ended. By his death the salary goes to his estate. This sum is therefore to be distributed between C and K.
(x) A SUM OF MONEY AT UNIT TRUST CORPORATION PORT OF SPAIN
- Unit Trust Corporation, Independence Square, Port of Spain held three accounts in the name of the Deceased. Account number 0261805-1 was opened on 8th February, 1989 with the last transaction recorded on 3rd October, 1996. This does not form part of P’s entitlement as it was acquired before the cohabitation. In any event the balance as of October 1996 remained at $0.00
- Account number 0316083-1 was opened on 21st September, 1991 with $50.00. By the time the cohabitational relationship began in 2002 the number of units held by the Deceased was 23 priced at $12.00 per unit for a value of $276. By the time of the Deceased’s death it grew by $2,623.13 to $2,899.13 (217.98 units at $13.30 per unit). The increased value of $2,623.13 which was accredited to the account during the cohabitation will be distributed among P, C and K.
- Finally account number 3697243-2 was opened in December 2005. P is entitled to a portion of the account as it was valued at the time of death, which according to the statement for that account was valued at $637.91. This sum will also be shared among the parties.
(xi) A SUM OF MONEY FROM HCA 5491 OF 2003
- A personal injury claim arising from an accident that occurred in March 1999 was filed by the Deceased in 2003. On 3rd May, 2010 judgment was entered for 65% of the claim with damages to be assessed. In June 2012 the matter was settled in the amount of $78,400. Although the claim was filed during the cohabitation, it is my judgment that two crucial dates, that is, the date of the accident and the settlement date, both fall outside the cohabitation period. This sum is excluded as an asset to which P is entitled.
(xi) SAGICOR GROUP PENSION (NOT CLAIMED BY THE APPLICANT]
- An asset that forms part of the estate but not mentioned by P is the Sagicor Group Pension. The Supervisor of Sagicor’s Pension Department, Ms. Susie Mendes gave evidence at the trial that her company paid out a cheque in favour of C in the amount of $98,382.99. Ms. Mendes confirmed that the Deceased joined the plan in October 1991. She explained that the Deceased had named his mother as beneficiary, but when she predeceased him the pension devolved to his estate. This pension plan requires a contribution by both employer and employee and is paid on retirement. In the event of the death of the employee before retirement, the pension is paid to his estate. Ms. Mendes explained that at the time of the Deceased’s death, he was making no contributions because the plan was in surplus. No details were given about the surplus for instance; when it went into surplus, when employees’ contributions ceased etc. It is therefore impossible to calculate how much the Deceased would have contributed, or when he stopped making contributions.
- There is no evidence that during the cohabitation that the Deceased was contributing to the plan. If he joined in 1991, it is just as likely, as it is unlikely, that he would have made contributions during the cohabitation. But this is purely speculative, and cannot be substantiated. It would be dangerous to make any orders with respect to this asset. In any event P did not make a claim on it.
(xiii) HOUSEHOLD FURNITURE AND CONTENTS
- Finally, I turn to consider the furniture and household contents itemised by the applicant in her affidavit of 31st October, 2011. It is undisputed that after the Deceased’s death P removed all the furniture from Ladoo Trace. She said that the Deceased purchased them as gifts for her. Given the widely varying dates of the purchases, I do not accept that and find that the items were bought by him for their joint use, in the ordinary course of daily living and the replacement of furniture and equipment falling prey to wear and tear. There is no evidence that P purchased any of these items so they would in essence form part of his estate to be distributed among all three parties.
- Any exercise to determine the values of these items is impossible given the relatively rapid rate of depreciation of such chattels. Any distribution in value would unless agreed, first have to be assessed by an expert. Like the motor vehicle the detailed division of these items would be left to the estate’s Administrator.
DECLARATIONS AND ORDER
- Having analysed all the evidence in this case and examined the supporting documents I order and declare that:-
- A cohabitational relationship existed between the applicant and Ronald Evans Deceased who died on the 9th September, 2010.
- The period of cohabitation is deemed to be from October 2002 to 9th September, 2010.
- At the time of death of the Deceased he was still lawfully married to the First respondent.
- At the time of death of the Deceased he and the First respondent were living separate and apart from one another.
- The Deceased died leaving the Second respondent his only surviving issue.
- The following assets and values calculated at the time of the Deceased’s death have been acquired during the period of cohabitation:
- Motor Vehicle registration number PCE 8903 valued at $50,000;
- Flexible Payment Retirement Annuity with ALGICO in the amount of $9050.90;
iii. Scotiabank chequing Account number 1201095 in the amount of $30,878.09;
- Joint Account No. 400009737 in the amount of $172.81
- Vacation leave in the amount of $12,105.00;
- Money and shares held at Cathedral Credit Union in the amount of $23,726;
vii. Money held in First Citizens Bank account number 1934501 which at the time of death had a zero balance;
viii. Unit Trust Corporation Account number 0316083-1 in the amount of $552.56;
- Unit Trust Corporation Account number 3697243-2 in the amount of $637.91;
- The furniture and household effects including personal items of the Deceased removed from Ladoo Trace.
- The assets in the values quoted in (1) to (ix) above with the exception of (iv) shall be distributed among the applicant and the respondents in accordance with the Administration of Estates Act.
- All remaining assets comprising the Deceased’s estate shall be shared between the First and Second respondents in accordance with section 24 (3) of the Act.
- Unless agreed, the items mentioned in (x) above and itemised in the schedule below are to be assessed by an agreed valuer at the joint cost of the parties, thereafter the assessed value to• be divided among the applicant and the respondents in accordance with the Act.
- There shall be liberty to apply.
THE SCHEDULE ABOVE REFERRED TO:
- Queen Divan Deluxe
- Congo Palm Living Room set
- Farm House Dining Table
- Queen Size bed
- General Electric Refrigerator
- General Electric Stove
- Whirlpool Deep Freeze
- Sharp Silver Microwave Stand
- 2 Fans
- Night Stand
- Sharp Flat Screen Television
- Sony Music System (750 watts)
- Clothes Organizer
- Entertainment Stand
- The attorneys are now invited to address me on the issue of costs.