Baird v Baird

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Des Iles, J.A.,Warner, J.A.,Mc Millan J.A.
• Judgment Date: 27 May 1987
• Neutral Citation: TT 1987 CA 12
• Docket Number: Civil Appeal No. 12 of 1975
• Date: 27 May 1987

Baird

and

Baird

Des Iles, J.A.; Warner, J.A.; McMillan, J.A.

Civil Appeal No. 12 of 1975

Court of Appeal

Workman's compensation - Death benefit under employees’ benefit plan paid to nominee — Appeal — Employee of Texaco Trinidad Inc., a member of the employees benefit plan — On his death his widow, as legal representative of his estate claimed $11,852.40, the death benefit under the plan — The respondent also claimed the said sum as nominated beneficiary — Issue between appellant and respondent decided by High Court in favour of approved nominee — Appeal — Question: Whether the sum fell to be paid to the approved nominee or should be regarded as part of the estate of the deceased at his death? — Articles V, VII, XI, XII & XIII of plant and rules — Court to decide whether the judgment in Re Danish Bacon [1971] 1 All E.R. 486 is to be preferred to that in Norris v. Norris (1977) 29 W.I.R. 22 — Cases considered — Former judgment preferred — Sum does not form part of the personal estate of the deceased — Appeal dismissed with costs.

Appearances

Mr. R. L. Maharaj and Mr. B. Panday for the appellant ( Dr. C. Seepersad holding for Mr. Panday.

Miss C. Gobin for respondent.

Des Iles, J.A.

1 I agree entirely with the judgments just delivered by my learned brothers Warner and Mc Millan, JJ.A. and with the orders proposed. The essential question, however, for decision seems to me to be whether the relevant sum of $11,852.40 formed part of the personal estate of the deceased at his death and a great deal of assistance in this regard is obtained from the degree of control if any which the deceased had over the money after it was paid into the Funds of the Plan (hereinafter called “the Plan”).

2 As my learned brothers have said, what Megarry, J. as he then was, was concerned with in the Danish Bacon case [1971] 1 All E.R. 486 at page 493 b was a “transaction whereby the deceased dealt with something which ex hypothesi could never be his.” I agree entirely with that view and accordingly hold that in the instant case the relevant sum did not form part of the deceased's estate especially when regard is had to the fact that the entire sum to be paid out from the Plan in relation to the deceased had not been paid in by the deceased and he had no property therein and the fact that he was capable of varying the nomination, in no way constituted possession of the said sum. By section 8 of Article V of the Rules the contribution of the company to the Plan was not to be less than the aggregate contributions of the members and the property in the Plan then vests in the trustee thereof. In the words of Rees, J. in Wilson v. Nash (1970) 16 W.I.R. 372 at page: 375 D - “it is clear that the money which has now become payable as death benefit arises from a subscription to a fund for a particular purpose as prescribed by the Plan and subject to the Rules thereof. As I see it the member is bound by these Rules,” and I adopt this language and apply it to the instant case. Whilst it may be true to say as indeed the appellant does, that a person can only dispose of property upon death by will, I hold that the relevant sum herein was not part of the property of the deceased at the date of his death. Whilst it is also true to say that with regard to the death benefit the member retains an option to nominate the beneficiary, he retains no property in it and is therefore; not free to dispose of the benefits of the Plan either inter vivos or by will.

3 The words of Pollock C.B. in the Rousell case (1888) 36 W.R. 67 referred to by my learned brother Warner, J.A. are most apt in these circumstances as they illustrate the limited nature of the control by the deceased as the learned Baron says: “If he appoints a nominee the nominee can only be admitted, if the directors deem it expedient.”

4 By Article XI of the Plan, “Nominations and revocation or alterations there are subject to the consent of the Management Committee.”

5 I hold, as held in the Danish Bacon Case Asupra at page 494 C) that: (such a nomination operates by force of the provisions of these rules and not as a testamentary disposition by the deceased,”

6 and accordingly that the nomination of Dickson Baird by the deceased herein was valid. Whilst it may be considered unfortunate that the deceased did not revoked or alter the nominations made to one in favour of his widow the appellant, he nevertheless did not do so as he was entitled to if he so wished and his not having done so is an indication of his desire in this regard. In these circumstances, I have attempted to set out what I find to be the proper position in law, and accordingly I do not consider that the Canadian and Australian authorities relied on in the Barbadian case of Norris v. Norris (1977) W.I.R. 22 are of assistance in this appeal.

7 I would therefore dismiss the appeal with costs and affirm the orders of the High Court.

G.E. des ILES

Justice of Appeal

Warner, J.A.

8 Milton Baird, husband of the appellants was an employee of Texaco Trinidad Inc. and a member of the Employees Benefit Plan. He died on 1st February 1972 while still an employee. Subsequently his widow received a grant of Letters of Administration and as a result of claims to the sum of $11,852.40 being death benefit under the Plan, put forward by the widow as legal representative on the one hand and Dickson Baird nominated beneficiary on the other, interpleader proceedings were instituted by Texaco Trinidad Inc.

9 On an issue tried between the appellant Luvinia Baird as plaintiff and Dickson Baird as defendant, Roopnarine, J. held that $11,852.40 which by consent had been deposited into court was not to be dealt with, disposed of or distributed by the legal personal representative, but must, according to the rules of the Plan, be paid to the approved nominees From this determination of Roopnarine, J. Luvinia Baird has appealed.

10 Dickson Baird had been nominated beneficiary on 21 ^st May 1965 and on 31 ^st May 1965 his nomination was approved in accordance with section 1 of Article XI of the Plan and Mules which provided as follows:

“A member may nominate a beneficiary to whom the benefits described in sections 4 and 5 of Article VII are to be payable and, if the beneficiary survives him, the benefits will be so paid. If the member leaves no nominated beneficiary surviving, the benefits will be payable to the member's widow or widower. If the member leaves neither nominated beneficiary nor widow nor widower surviving the benefits will be paid to the member's estate. Nominations and revocations or alterations thereto are subject to the consent of the Management Committee.”

11 It is not disputed that in accordance with Article XI Dickson Baird was nominated as beneficiary for the purposes of sections 4 and 5 of Article VII and that the consent of the Management Committee to the nomination was given also in accordance with Article XI.

12 Section 4 of Article VII reads as follows:

“In the event of a death of a Member during his employment with the company payment shall be made to such person or persons, as the Member shall have previously nominated in writing according to these Rules, or, in default of nomination, to the Widow of such Member, and, if the member leaves no widow surviving him, to his estate, the following:

• (1) Two years’ annual basic wage at the rate then in use for the purposes of the member's contribution (see Section 6 of Article V), which sum shall be paid either in the form of a lump sum or spread over a period of five years at the absolute discretion of the Management Committee.

• (2) A sum equivalent to the total of the contributions paid by the Member to the Plan together with compound interest thereon at the rate of 32% per annum with yearly rests.

• (3) Such amount, if any, as was transferred to the Member's account from the E.G.P.F. together with compound interest thereon from the date of transfer at the rate of 32% per annum with yearly rests.”

13 There is nothing to indicate that section 5 applied, but the section 5 payments are sums calculated according to the pension which would have been payable had he lived so as to draw pension for up to 10 years.

14 The principal issue was whether the sum of $11,852.40 fell to be paid to the nominee Under the Rules or must be regarded as forming part of the estate of the deceased.

15 The learned judge opined that: “circumstances of the case were not dissimilar to the case of Wilson v. Nash (1970) 16 W.I.R. p.372 except that in that case there was no nomination by the deceased under the Plan.”

16 Further Roopnarine, J. held that the money deducted from the wages of a member and paid to the trustee of the funds of the Plan ceased to be the member's money and he could no longer consider it his personal estate. The money which had become payable as a result of the member's death did not arise entirely from money deducted from his wages.

17 The opinion formed by the judge that the money payable as a result of the member's death in office did not arise entirely from money deducted from his wages is supported by a perusal of section 4 of Article VII.

18 Article XII provides that the pension and other benefits of the Plan are non-assignable. The employee therefore does not have full control over his pension benefits until he actually receives them.

19 The amount transferred to the member's account from the E.G.P.F. (Employees Gratuity Provident Fund) came from contributions which only the company made (see section 3 of Article IV).

20 The two years’ annual basic wage would clearly arise from the company's (Employer's) Contribution under Article V section 8 which provides:

“Subject to the rights reserved by the company herein, the company shall pay from time to time to the Trustee such monies as may be necessary to supplement the contributions of the Members to provide their pension and...