Citation:Â Â Â Â Â Â Â Â Â Â TT 2009 HC 55
Title:Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â CHAITRAM v. DOOKIE
Country:Â Â Â Â Â Â Â Â Â Â Trinidad and Tobago
Court:Â Â Â Â Â Â Â Â Â Â Â Â Â Â High Court
Suit No.:Â Â Â Â Â Â Â Â Â Â FH 436 of 2007
Judge(s):Â Â Â Â Â Â Â Â Â Ramkerrysingh, J.
Date:Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â March 26, 2009
Subject:Â Â Â Â Â Â Â Â Â Â Family law
Subsubject:Â Â Â Â Â Cohabitational relationship â€“ Administration of Estates â€“ Whether applicant satisfying conditions enabling her to benefit from deceased’s estate â€“ Distribution of Estates Act, 2000 s. 3 â€“ Prerequisites for entitlement â€“ Applicant not satisfying prerequisites â€“ Application dismissed.
Mr. Kweku Wilson for the applicant.
Ms. Ramesh Deena for the Interested Parties.
Introduction and Summary
Ramkerrysingh, J.: The Distribution of Estates Act, 2000 (“the Act”) gives clear guidelines on the prerequisites that an applicant must meet in order to establish a that cohabitational relationship existed between themselves and a deceased person, that would enable him or her to benefit from the estate of that deceased person, with whom the applicant is alleged to have lived with, prior to the death of the deceased. These prerequisite are outlined in section 3 of the Act, more particularly section 3 paragraph (c). Section 3(a) of the Act (See Appendix), in defining the term “cohabitant”, provides three main criteria potential applicants must meet in order to seek relief in that capacity: (1) continuous cohabitation for at least five years; (2) cohabitation in a bona fide domestic relationship and (3) cohabitation must have occurred up to and immediately preceding the death of the deceased. I have found that the evidence provided by Ms. Dookie (“the applicant”) fails on all three counts and I have explained why below. It is my judgment therefore that she has not proved her case and accordingly, her application is dismissed.
The Application and the Evidence
The Applicant’s Case
- The applicant initially filed her Application pursuant to the Cohabitational Relationships Act, Chapter 45:55 and the Distribution of Estates Act, simply asking for leave to apply for the estate of Sonnilal Chaitram (“the Deceased”), with whom she claimed to have shared a cohabitational relationship for 15 years prior to his death. Her Application was supported by an affidavit filed on March 12 2007 consisting of ten trivial paragraphs, which I thought were quite insufficient to prove her case. There were no other corroborating affidavits and when the matter came up on its first directions hearing on 27th April 2007, I gave leave to the applicant to file and serve an amended application to include her claim for distribution of the Deceased’s estate and I advised Mr. Boodoosingh about my concern for the lack of substance in the applicant’s affidavit. On that day too, that is the 27th April 2007, Mrs. Homer-Nanan appeared on behalf of the Registrar General and submitted an Investigator’s Report, which, although suggesting that the applicant and the Deceased did in fact live together, indicated that the period was not nearly as long as claimed by the applicant. As far as those persons who were interviewed revealed, the relationship lasted between six to eight years and not fifteen years as claimed by the applicant. I have dealt with other aspects of this report later on in the judgment (Pages 8, 9 below). Also in attendance on the first day of hearing were the children of the Deceased, by his estranged common-law wife Lomatie Maraj, namely Dain Chaitram, Rosannah Maraj and their mother the said Lomatie Maraj (“the Intervening Parties”). Apart from what was revealed under cross-examination of the Investigator Mr. Sookdeo, the only mention of the Deceased’s marital status at the time of his death comes from the applicant herself, who, in her first affidavit filed on 12th March 2007 said at paragraph 7 that It] he said deceased is also still married.” As it turns out it seems that the Deceased was indeed never married as mentioned in Mr. Sookdeo’s report, but that he had shared a long standing cohabitational relationship with Lomatie.
- On the 9th May 2007, the applicant filed a further affidavit which, regrettably, did not tape her evidence much further, except to exhibit: (1) a Consumer Credit Disclosure Statement dated 29th March 2001, which identified her and the Deceased as “Co-Borrower” and “Borrower” respectively, (2) an Insurance Enrollment Form and (3) a receipt from Courts Megastore dated 6th December 1999 bearing the Deceased’s name, for the purchase of a stove and a “Supa” shield, which I assume is an attachment for a range that protects it from splashes of grease and oil. The first two items are clearly connected. The Consumer Credit Disclosure Statement seems to be a document required for loan purposes and the Group Life Insurance Enrollment Form, purportedly signed by the Deceased, is a pre-condition for the loan he presumably took with Scotiabank in 2001. The Insurance Enrollment Form lists him as the Principal Borrower. The Form and the Consumer. Credit Disclosure Statement formed a bundle exhibited as “KD2” to the said affidavit, which the applicant annexed as proof that she and the Deceased “shared a joint account at the Scotiabanh”; but that exhibit does no such thing. An examination of the documents clearly shows that they were used for the single purpose of obtaining a loan. Nothing on either form points to the fact that the applicant and the Deceased held a joint account at Scotiabank or indicates whether the Deceased held an account there at all in his own name. It is only to be assumed that he may have had an account since the loan facility was granted to him, and this may be reconciled with the bundle also exhibited as “KD2” to the applicant’s 12th March 2007 affidavit, which I have discussed later.
- The applicant used the receipt which was exhibited as “KD3” ) her affidavit of 9th May 2007, in support of her claim that she and the Deceased cohabited and to exemplify “[t] hat we purchased appliances together at Sew Rite Variety Store” and she annexed the “invoice” (“KD3”), as evidence of that purchase. Once more the applicant’s exhibit does little to help her case, in two main respects. Firstly, the invoice exhibited as “KD3” is from Courts Megastore and not Sew Rite Variety, but it seems that this was mistakenly attached since in her earlier affidavit filed on 12th March 2007 there was indeed an invoice from Sew Rite which I have dealt with below (Page 4 below). Perhaps in Mr. Boodoosingh’s haste to regurgitate the first affidavit the wrong exhibit was attached. Secondly, and more importantly, the invoice bears the Deceased’s name only and while it may very well have been that the item was purchased by him for the joint use of the applicant and himself, there is nothing on the face of the document from which that conclusion can he drawn.
- Interestingly, in her affidavit of 12th March 2007, which was the first affidavit filed by the applicant in these proceedings, she attached as “KD2” another letter, Consumer Credit Report and Group Life Insurance Enrollment Form as evidence that she and the Deceased shared a joint account and had a joint loan. The Credit Disclosure Statement bears both names as Borrower and co-Borrower as did the statement mentioned above, but there is again nothing on the form to indicate that they held a joint account. The documents are largely therefore the same as “KD2” attached to the May 9th affidavit except in one crucial respect. The earlier “KD2” bundle contains a letter dated 27th February 2007 which indicates that the savings account number 4002820 was jointly held by the Deceased and the applicant and that it was converted to a joint account on April 27, 2005, a year and eight months before the Deceased’s death on 12th December 2006. This means that when the earlier loan was taken in 2001, the account was not held in joint names. Can we conclude by this that at that time, that is, 2001, that the Deceased and applicant were not living together?
- Certainly the mere holding of a joint account is not indicative of cohabitation, and is only one of many indicators that may be used to establish such a relationship, but it is the applicant who relies on this bit of information in support of her case, and I do not think that she has used it to her advantage. What could have happened in 2005 that prompted the Deceased, assuming the account was his to begin with, to convert the account to a joint account? If the Deceased and the applicant had shared a 15-year long cohabitation, as the applicant claims, why did he wait so long, approximately one and a half years in fact, before his death to include the applicant’s name on the account? If indeed their cohabitation lasted this long, I could only think that perhaps (1) some urgent circumstance may have prompted this change or; (2) it could have been as a result of a recent (2005) change in his marital status or; (3) yet again it may just have been something that he had wanted to do for some time (to cement their co-dependent relationship), but never got around to doing until shortly before he died. The evidence is unclear, but I am more inclined towards the second rationale.
- Attached as “KD3” to the March Affidavit is the “Sew Rite Variety Store” invoice mentioned above. This solitary invoice dated 5th May 2006 (a mere seven months prior to the Deceased’s death), shows an instalment payment on a hire purchase item in the names of the Deceased and the applicant, but unfortunately does not provide a history as to when the item was purchased. According to the invoice the hire purchase amount that was being paid is $4,414.00 and the instalment, which I assume is a monthly one is in the amount of $295.00, which would make for 15 instalments in all. At the time of the invoice (5th May, 2006) a total of $3,595.00 had been paid, that is, twelve instalments, which would have made the first instalment payable on 5th May 2005, so that the earliest the item could have been purchased would be April 2005 or thereabouts, when a down-payment would have been paid. This time frame is hardly useful to the court in determining the period of cohabitation. Unfortunately, the applicant failed to produce any other documentary evidence prior to this or any other documents at all, from which one can infer a sharing of financial arrangements, or other financial dependence over a prolonged continuous period of at least five years that would support her contention of a cohabitational relationship as defined in the Act.
- Many questions are raised in this scenario and with the evidence that I have before me, I am more and more convinced that the cohabitational relationship lasted far less than the fifteen-year span so vehemently defended by the applicant. There is no doubt that the parties had an intimate relationship that lasted for many years, during which it is likely that the Deceased may have taken loans for and with the applicant and carried out other activities that one might expect of persons sharing a close bond, but I hardly think that this is sufficient to conclude that they were cohabitants as envisioned by the Act. On the evidence that I have before me, I cannot reasonably draw that conclusion. I hasten to add that the probative value of the applicant’s evidence is poor and leaves too many questions unanswered. There is hardly little substance that can be gathered from the applicant’s case upon which one can determine that these parties shared a bona fide domestic relationship for five years. Indeed had it not been for the concurrence of the Interested Parties as to the existence of a cohabitational relationship, albeit not lasting as long as five years, I think that the applicant would have had a hard time persuading me that such a relationship existed at all. It would set a dangerous precedent if an order were to be made based on the evidence of the applicant as I have before me.
The Case of the Intervening Parties
- On the 21st of June 2007 leave was granted for the Intervening Parties to file an affidavit or affidavits in response to those filed by the applicant. On 31st July 2007 one of the Intervening Parties, Dain Chaitram, filed an affidavit in which he accepted that the applicant and the Deceased shared a cohabitational relationship, but contended that it lasted only four years, and that prior to their moving in together they were intimately involved, but in an intermittent relationship. The Deceased’s sister Sheila Singh and his friend Churaman Ramkissoon also deposed to affidavits, which corroborate Darn’s contention that the applicant’s relationship with the Deceased lasted just four years.
- The Investigator’s Report stated that the Deceased was never married, but had lived with Lomatie for about 25 years during which they had five children, two of whom were the Interveners.
- It is the case of the Interested Parties that upon separation from Lomatie the Deceased resided with his sister Sheila and her husband with whom he lived for some time before forging a relationship with someone by the name of Geeta. When that relationship ended he returned to Sheila’s home until he moved in with the applicant. Of all the participants in the circumstances before me, I think that Sheila is the candidate best placed to testify as to the timeliness of the length of time that the cohabitation might have taken place, having opened her home to the Deceased upon his separation from Lomatie, and from which he moved to live with the applicant.
- Interestingly, during the cross-examination of Churaman Ramkissoon, he told the court (after the issue was introduced by Mr. Wilson) that he was approached by the applicant the day before the trial, whereupon she asked his to give evidence on her behalf. When questioned as to this event, Mr. Ramkissoon, who I found to be the most forceful witness in the case, admitted that the applicant wanted him “…to come with [her] to courtâ€¦”; (which I took to mean to testify on her behalf against the Interested Parties). He had found himself in a peculiar position, being the applicant’s nephew-in-law and Darn’s (one of the Interested Party’s), cousin-in-law, and may have felt torn between the two sides. In the end however, he said that he had already sworn an affidavit on Dain’s behalf and he committed himself to supporting the case for the Interested Parties. In spite of Mr. Ramkissoon’s apparent conflict, I felt that he was nonetheless truthful when he gave his evidence and although he may have held loyalties to both sides, he did not seem to have let these loyalties overtake his obligation to tell the truth.
- Mr. Boodoosingh waited until the 11th of September 2007 before he filed affidavits in response to the affidavits of the Interested Parties. Without leave of the court and perhaps rather as an afterthought, Mr. Boodoosingh filed a flurry of new affidavits deposed to by Terry Duff, Mahadeo Maraj, Premchand Ramroop and Mary Balleram. On the 10th day of October 2007 the applicant was given leave to issue witness summonses to Jassodra Mattoo and Seeta Ramlakhan, who were the two interviewees named in Mr. Sookdeo’s report and the trial date was set for March 12, 2008. Attorneys were warned that on the day of trial, and before embarking on same, they would be invited to address the court on the admissibility of the Duff, Maraj, Ramroop and Balleram affidavits as a point in limine.
The Trial and Conclusions
- In anticipation that the new deponents would have been called upon to give evidence on the day of trial, Mr. Wilson holding for Mr. Boodoosingh, brought with him Mary Balleram, Premchand Ramroop and Terry Duff. Unfortunately, after hearing submissions, all those affidavits were struck out on the grounds that: (1) leave was not given for their filing and (2) the paucity of the evidence as presented in those affidavits, particularly that of Ms. Balleram, did nothing to advance the applicant’s case. That left the witnesses for whom leave was granted to be served with summonses, namely Jassodra Mattoo and Seeta Ramlakhan. Mr. Wilson informed the court that those witnesses were not in attendance and indeed were at their respective places of employment. He explained that there was a failure of instructions on my part and Mr. Boodoosingh’s part because they probably felt that this is not as requiredâ€¦” I gather from this explanation that there was some miscommunication between Mr. Boodoosingh and these witnesses that resulted in them forming the view that their presence was not required on that day.
- It seemed as though the applicant’s case was unravelling before her eyes so I gave Mr. Wilson one more opportunity to set his client’s case aright. I gave the parties three options: (1) That they talk with a view to compromising their respective positions and settling the matter between them; (2) Proceed with the matter in its now collapsed state which would severely prejudice the applicant’s position; (3) Adjourn the matter for the applicant and Mr. Wilson to properly prepare their case in light of its diminishing evidence. Mr. Wilson opted for the third choice and he was warned that the two witnesses Jassodra and Seeta should file affidavits on which they could be cross-examined. Against much objection by Mr. Deena on behalf of the Interested Parties, the matter was again put for trial on 12th November 2008 with costs to the Interested Parties.
- Not surprisingly, when the trial rolled around for the second time only the applicant gave evidence in support of her claim. Towards the end of her cross-examination it was revealed that she had walked with two new witnesses, (themselves Eking introduced for the first time), neither of whom had sworn to affidavits beforehand, nor had they been summoned to attend. Their evidence was therefore not taken. Once more, and as was fast becoming routine, the two witnesses for whom leave was granted to the applicant to he summoned, Jassodra Mattoo and Seeta Ramlakhan, were again not in attendance. All in all, the applicant has found it difficult to get anyone to substantially corroborate her case.
- As I see it, this matter turns purely on the facts and evidence as presented by the parties in their affidavits and under cross-examination. The case for the applicant at trial was short, flimsy and unconvincing due to the fact that save and except for her own weak evidence, there was no other evidence forthcoming to substantiate her case. Moreover, my general observations of the applicant were that she was just as evasive and vague at trial as she was in her affidavits. She presented herself as shifty and duplicitous, and I had a very difficult time believing her testimony. The weakness of the applicant’s case was exacerbated by the absence of witnesses willing to come forward on her behalf.
- The independent report of the Registrar General’s investigator, Mr. Rajlumar Sookdeo did little to promote the applicant’s case, in spite of mention by some of those interviewed, that the parties lived together. None of those persons however who were summoned to give evidence, attended for cross-examination, so there was nothing else upon which the applicant could rely in support of her case and her evidence rendered little assistance by way of information that could persuade me that she and the Deceased lived in a bona fide cohabitational relationship as prescribed in the Act.
- Incidentally, Mr. Sookdeo’s evidence under cross-examination, did shed some light on the reliability, or unreliability of his own report and the weight that it should be given by the court. The persons interviewed by Mr. Sookdeo varied with respect to the number of years that the Deceased and the applicant were estimated to have lived together; ranging from four years, to six years, to seven years, to eight years. Regrettably, as indicated above none of these interviewees attended the trial and the report itself was quite vague, giving no useful details upon which the court could make a proper determination as to the existence of a cohabitational relationship. Neither those interviewed persons nor the applicant herself, were able to relay any cogent information from which I could, even circumstantially draw any positive conclusions.
- Before turning to the evidence of the Interested Parties, I would at this juncture like to note with some unease, a number of concerns that I have with the policy that now exists at the Registrar General’s Department, with respect to the conduct of interviews for this purpose and others. As I understand it, persons are interviewed on the basis of anonymity if desired and a promise that they would not be forced or called upon to give evidence. This has been proffered in order that the informants could feel free to divulge information and be as truthful as possible about their neighbours’, friends’, or relatives’ affairs, without threat of exposure, which can potentially mar a peaceful co-existence, and make future relations quite unpleasant. While I appreciate this obvious necessity for this practice, I am troubled when objections are raised and the interviewee’s statements cannot be effectively challenged, thereby rendering the information unreliable. The courts and attorneys have come to rely very heavily on these reports and it is wholly ironic that they are accepted unquestionably by all concerned until an objection is raised, at which point they are checkmated. In the case before me, because of the discrepancies in the information, the lack of accuracy, and the unwillingness of the interviewed persons to attend court or otherwise participate in the proceedings, I am therefore left with little choice than to disregard the report.
- I now turn to the evidence of the Interested Parties. They all admitted that a relationship existed between the applicant and the Deceased but are contending that it lasted only four years, one year short of the statutory five-year period. Firstly, the evidence of Mr. Churaman Ramkissoon is that from his personal knowledge, being not only the dear friend of the Deceased, but also related to him by marriage, categorically recalls that the Deceased and the applicant lived for no more than four years together. He was very clear that the applicant and the Deceased shared a relationship before living together, but is clear that the relationship was a visiting one where, according to him (Affidavit of Churaman Ramkissoon filed 31/07/07, paragraph 8), … the Deceased and Kamwatie were only living as man and wife for about four years before his death, before that’ they were in anon and off relationship.” When asked what he meant by “on and off relationship” Mr. Ramkissoon explained: “Well he was by his [sic] sister, â€¦ they used to meet up there and ting, that is all I could recall. And after that I doh know how long it take to come beside I know them together in full for the four years” In answer to further questions as to where the visits took place he said that the visits took place at the applicant’s home, where she lived with her mother and siblings. He was quite sure however that the period when they lived as man and wife was four years prior to the Deceased’s death.
- Next was the evidence of Dain Chaitram the son of the Deceased. He too claimed that the relationship lasted four years. He says that after his parents separated, the Deceased went: to live with his sister Sheila Singh for about two years, moved in with a woman know only as “Greta”, before settling down with the applicant for the next four years. This affidavit like the one referred to earlier deposed to by Mr. Ramkissoon, lacked vital dates and years that could have strengthened their rebuttal, but enough doubt was raised nonetheless, that upset the balance of probability of the evidence in favour of the Interested Parties.
- Sheila Singh, the sister of the Deceased, who opened her home to her brother upon the breakdown of his relationship with Lomatie, and then again when his relationship with Geeta ended, was the only one who gave some perspective in terms of time, although not specific enough so that the court could accurately say when the relationship started, She too supports the allegation that the relationship lasted only four years, but marks the starting date with the time when the parties moved into the house built by the deceased upon its completion. She indicated that her knowledge of the event came about because the house was built on land belonging to herself and her husband. Again there is no evidence as to the proximity of this land to her house and the frequency with which she was able to make her observations, but it must be remembered that her house was the Deceased’s last place of residence before moving in with the applicant, so she must have a fairly good idea when his cohabitation with her began. She too, described the relationship between the Deceased and the applicant as sporadic from 1999 when they would visit at each other’s homes, but that they did not actually live together until four years before her brother’s death. It is most unfortunate that Ms. Singh was not called upon to be cross-examined. I think her testimony would have no doubt been very helpful and much more weight would have been put on the evidence of the Interested Parties. As it is, I can only place minimal emphasis on it.
- Quite apart from all that has gone before, the applicant by her evidence, still has not touched, let alone crossed the hurdle of establishing, what have now come to be accepted as the criteria to determine such a relationship. These criteria are captured in section 4 De Facto Relationships Act, 1984 (NSW â€“ Australia) upon which our Cohabitational Act is based and although these factors are not enshrined in our Act, Mendonpa, J.’s reliance on them in Dekine v. Stowe H.C.A. No. 3007 of 2001 has now made them part of our jurisprudential landscape. “These criteria are as follows:
- Duration of the relationship;
- Nature and extent of common residence;
- Whether or not a sexual relationship exists;
- Degree of financial dependence or interdependence and any arrangements for financial support between the parties;
- Ownership use and acquisition of property;
- Degree of mutual commitment to a shared life;
- Care and support of children;
- Performance of household duties;
- Reputation and public aspects of the relationship.
- Save items (b), (d) and (e), which the applicant touched on, but did not strongly substantiate in her evidence, the other criteria have either not been established where applicable, or are not applicable, and while I accept that all the items on the above list need not be proved, then certainly the three that were hinted at by the applicant should be emphatic enough to carry her case and hear out her evidence. But this is not the case, especially when there is the absence of children, which would have gone a long way to strengthen a contention of cohabitation. Of course heading the list is duration, which is given a clear time frame in our Act and the applicant fails miserably, I am afraid, to meet this criterion. Inferences can be drawn from the other factors, but as mentioned, the applicant’s evidence is too weak for any determinative inferences to be drawn.
- Mr. Wilson relied on two cases Kimber v. Kimber  1 F.L.R. 383 and Re Watson (Deceased)  1 F.L.R. 878 which both identified the criteria that can be used in determining whether a cohabitational relationship existed between two persons, and whereas these are fine examples, unfortunately, they do not assist with the main issue in this case, as I see it, which is whether the applicant has established that she and the Deceased lived together for five years immediately preceding the death of the Deceased. It is accepted that the two shared a cohabitational relationship just before he died, but it is the duration of the cohabitation which is of immediate concern to this court. In any event the applicant has failed to establish the other factors as outlined above. Mr. Wilson concludes that the applicant has proved her case, but I unhesitatingly disagree with him.
- I agree with Mr. Deena that the lack of the applicant’s evidence derails her case. Like Mr. Wilson, he also cited one authority to outline the criteria used in determining a bona fide relationship, Wendy Ann Boodoo v. King H.C.A. No. 1141 of 2005, and as I have said above the applicant has brought no evidence that meets any of the factors mentioned that could he taken into consideration.
- Although both sets of affidavits, (the applicant’s and the Interested Parties’) lack the detail that is necessary to comfortably persuade a court, at least on a balance of probabilities one way or the other, that a cohabitational relationship existed, I find that the evidence leans more in favour of the Interested Parties. It is for the applicant to prove her case and I must say that I think that she has done a very poor job of it indeed, She provided nothing to substantiate her claim other than to show: (1) a statement from Scotiabank purportedly evidencing a joint account that was opened in the names of the Deceased and herself a year and five months before the Deceased died, that is on 27 April 2005; (2) a 36-month loan taken out by the Deceased a mere 7 months prior t o his death in February 2006; and (3) a Hire Purchase Statement also dated shortly before the Deceased’s demise that is in May 2006. It is unfortunate that the transactions the applicant chose to exhibit to her affidavit do nothing to establish the crucial period of cohabitation as defined by the Act and thus add nothing to her case.
- To my mind what is more telling is the fact that all the Deceased’s’ relatives, by blood and by law seem to corroborate each other as to the length of cohabitation. On the other hand, the applicant was only able to muster support from friends of the Deceased whose affidavits were eventually struck out. The only two witnesses who could have supported the applicant’s contention that the period of contention was at least six years, Jassodra Mattoo and Seeta Ramlakhan refused to attend court or file affidavits. I also look with disdain and suspicion, the failed attempt by the applicant to persuade Churaman Ramkissoon to give evidence on her behalf just days before the trial, knowing that he was to appear on behalf of the Interested Parties. That effort smacks of desperation and dishonesty and strikes directly at the heart of the integrity of this witness.
- The applicant has brought no cogent evidence in support of her allegation that she lived together for 15 years or even for five years with the Deceased before he died. Once more her integrity and honesty are at stake. There is absolutely not a shred of evidence that she and the Deceased lived together for as long as 15 years, and it makes me wonder, as I mentioned earlier, whether I would have believed that there was cohabitation at all, even if for four years, had it not been for the Interested Parties’ conferring on this point. The evidence at best is weak and if a court were to make a declaration that a cohabitational relationship existed on the very skimpy evidence as put forward by the applicant, then surely it would make a mockery of the intention of the Act.
- I have made the five-year stipulation the main focus in this case, and although I am aware that this may be too strict an interpretation of the Act, I prefer to adhere to this provision exactly. The five-year period was put in the Act for a specific purpose. It represents, I believe, the average time that it would take for individuals to develop a meaningful connection, that would set them apart from the more obscure relationship, and elevate it to the level of a marital union. The Act was not intended to take into account a close intimate relationship or friendship, punctuated by periods of separation, even if that friendship or intimate relationship lasted over a long period of time, but a continuous living arrangement that would undoubtedly be looked upon and accepted by all observers as closely resembling a marriage.
- It is the applicant’s burden, on a balance of probabilities, to prove her case. I find that the applicant has not discharged this burden. Her evidence leaves too many evidential gaps about the relationship that she shared with the Deceased, particularly as it related to its duration. It is acknowledged by all who knew them that they did indeed share a relationship and that part of that relationship was a cohabitational one, but the disparity regarding the length of time that they lived together immediately preceding the Deceased’s demise is too great and the applicant has done little to convince me that they had indeed lived together for that critical five-year period.
- Alter reading the affidavits, listening to the evidence and considering the submissions of both sides, I find that the applicant has not proved her case and therefore her claim must fail.
- The Application is dismissed, with costs to be paid by the applicant to the Interested Parties.
DISTRIBUTION OF ESTATES ACT, 2000
AMENDMENT TO THE ADMINISTRATION OF ESTATES ORDINANCE
- The Administration of Estates Ordinance is amended â€“
(a) n section 2 by adding the following definitions in appropriate alphabetical sequence
“cohabitant” means a person of the opposite sex who, while not married to the intestate, continuously cohabited in a bona fide domestic relationship with the intestate for a period of not less than five years immediately preceding the death of the intestate; …