Martin v Martin and Dyer
| Jurisdiction | Trinidad & Tobago |
| Judge | Rajkumar, J. |
| Judgment Date | 17 November 2015 |
| Neutral Citation | TT 2015 HC 340 |
| Docket Number | CV 2014-01676 |
| Court | High Court (Trinidad and Tobago) |
| Date | 17 November 2015 |
High Court
Rajkumar, J.
CV 2014-01676
Ms. Suzette Bullen for the claimant
Ms. Joanne Julien for the defendants
Statutory Interpretation - Whether the claimant was a former spouse within the meaning of the term as used in the Succession Act - Section 94 Succession Act.
Rajkumar, J. This is an elaboration of reasons given on 6th day of May 2015 when the defendant's preliminary point was upheld and the claimant's claim dismissed with costs.
The claimant obtained a divorce from her ex-spouse (the deceased) in Guyana.
On the 14th May 2014, the claimant sought an order before this Court pursuant to section 96 of the Succession Act Chap. 9:02 (“the Act”) for reasonable financial provision to be made for her out of the estate of the deceased. This claim was amended on the 10th October 2014 to include a claim for a lump sum and a transfer of certain property situate in Trinidad.
The defendants have raised a preliminary issue – whether the claimant is a “former spouse” within the meaning of term as used in the Succession Act.
The claimant is not a former spouse within the meaning of the term used in the Act and is not entitled therefore to invoke the jurisdiction of a court in Trinidad under that Act. In those circumstances the preliminary point is upheld.
6.
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i. The claimant's claim is dismissed.
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ii. Costs are to be paid by the claimant to the defendants in the sum of 14,000.00.
Section 95 of the Succession Act Chap. 9:02 (“the Act”) provides inter alia that a spouse, cohabitant, or former spouse (who has not remarried), may apply to the Court for an order under section 96 on the ground that the disposition of the deceased's estate effected by his Will or the law relating to intestacy, or the combination of his Will and that law, is not such as to make reasonable financial provision for the applicant.
A former spouse is defined in section 94(1) as follows: –
94 (1) “FORMER SPOUSE” means a person whose MARRIAGE was, during the deceased's lifetime, DISSOLVED or annulled by a decree of divorce or of nullity of marriage MADE UNDER THE MATRIMONIAL PROCEEDINGS AND PROPERTY ACT;
95. (1) Where after the commencement of this Act a person dies DOMICILED IN THE STATE OR DIES OUTSIDE THE STATE LEAVING ANY ESTATE IN THE STATE and is survived by any of the following persons:
(a) the spouse of the deceased;
(aa) a cohabitant;
(b) A FORMER SPOUSE OF THE DECEASED WHO HAS NOT REMARRIED;(emphasis added)
…..
THAT PERSON may apply to the Court for an order under section 96 on the GROUND that the DISPOSITION of the DECEASED'S ESTATE effected by his Will or the law relating to intestacy, or the combination of his Will and that law, is NOT SUCH AS TO MAKE REASONABLE FINANCIAL PROVISION for the applicant.
The meaning of the phrase “made under the Matrimonial Proceedings and Property Act” is therefore relevant.
Section 94 (6) of the Act provides as follows:
Any reference in this Part to an order or decree made under the Matrimonial Proceedings and Property Act, or under any section of that Act shall be construed as including a reference to an order or decree which is deemed to have been made under that Act or under that section thereof, as the case may be.
It was submitted that the phrase “made under the Matrimonial Proceedings and Property Act” should be interpreted as to include the category of persons who obtained their decrees of nullity or divorce in Trinidad and Tobago as well as persons whose decrees of nullity or divorce are capable of recognition or are deemed to be made under the Matrimonial Proceedings and Property Act Chap. 45:51 (“the MPPA”) in accordance with section 62.
It is assumed for present purposes that the decree of divorce obtained in Guyana was capable of recognition and/or entitled to be recognized in Trinidad.
It would be necessary however to establish that an entitlement to recognition of that divorce is equivalent to or suffices to deem that foreign divorce to have been made under the Matrimonial Proceedings and Property Act of Trinidad and Tobago.
The defendants are the Executors appointed under the Will dated the 24th June, 2011, of the deceased who died on the 17th January, 2013. Grant of Probate was issued in favour of the defendants on the 22nd day of November, 2013.
The deceased left the bulk of his estate to the defendants to hold on trust for his son Shabaka until he attained the age of 18 years. Shabaka is still a minor.
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i. The claimant is Shabaka's mother. The claimant and the deceased were married on the 1st January, 2000.
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ii. Before the deceased's death a decree absolute of divorce was granted to the claimant on the 15th June, 2012 in the Supreme Court of Guyana.
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iii. The claimant is seeking an order in Trinidad as a former spouse for financial provision under Section 96 of the Succession Act Chap 9:02 (“the Act”).
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iv. The claimant at paragraph 15 of her Affidavit filed on the 14th May, 2014, stated the basis upon which she applies- “that as a former spouse of the Deceased who has not remarried, that I qualify as a person under section 95(1) (b) of Cap 9:02 of the Laws of Trinidad and Tobago”.
Part V 111 of the Act, “Family Provision”, was brought into operation upon the passage of the Distribution of Estates Act, No. 28 of 2000. This Act also amended inter alia the former sections 94(1) and 95(1) of the Succession Act. The Distribution of Estates Act sought to widen the category of persons who may make claims for financial provision out of an estate of a deceased person.
Attorney at law for the defendant submitted that “it is helpful to understand the legislative history behind the partial enactment of sections 94-116 of Part V 111 of the Succession Act, assented to on the 25th September, 2000 by the passage of The Distribution of Estates Act. It was the intention of Parliament to “widen the categories of persons who may apply to the courts for relief on the grounds that the disposition of the estate of the deceased effected by his will, or the law relating to intestacy on the combination of both the law and the will, is not such as to make reasonable financial provision for the applicant”.[Page 640 of Hansard - Contribution of Ramesh Lawrence Maharaj on the 8th February, 2000 in the Senate on the Second Reading of the Distribution of Estate (No. 2) Bill]
The then Attorney General alluded to the fact that similar laws were already in existence, and reference was made to the Inheritance Family Provisions Act of the United Kingdom.”
In fact he also specifically considered the position in Guyana (page 638 Hansard) and stated “the UK, the majority of Australian jurisdictions and even Guyana entitle a common law spouse to apply for reasonable provision out of the estate of the deceased.”
It is clear that the position of at least that category of persons in Guyana entitled to make claims for reasonable provision out of the estate of a deceased spouse was being considered. In fact this immediately preceded the description of categories of persons entitled to apply under Part VIII of the Succession Act for reasonable provision out of the estate of a deceased.
In Trinidad and Tobago the Matrimonial Proceedings and Property Act, (MPPA), at section 41(1) provides:
“Where after the commencement of this Act a person dies domiciled in Trinidad and Tobago and is survived by a former spouse of his or hers (hereinafter in this section referred to as “the survivor”) who has not remarried, the survivor may apply to the Court for an order under this section on the ground that the deceased has not made reasonable provision for the survivor's maintenance after the deceased's death”.
Sub-section 41(7) provides:
“(7) In this section—
“former spouse”, in relation to a deceased person, means a person whose marriage with the deceased was during the deceased's lifetime dissolved or annulled by a decree made or deemed to be made under this Act, and “former wife” and “former husband” shall be construed accordingly”.
The “Inheritance (Provision for Family and Dependants) Act 1975, (“the 1975 Inheritance Act”), was enacted in the UK.
Section 1(1) of the 1975 Inheritance Act, as amended, is as follows:
“Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons—
(a) the spouse or civil partner of the deceased;
(b) a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
(ba) any person (not being a person included in paragraph (a) or (b) above) to whom subsection (1A) or (1B) below applies;
(c) a child of the deceased;
(d) any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family;
(e) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.
Under section 25 of the 1975 Inheritance Act as amended by the Matrimonial and Family Proceedings Act 1984,(brought into force September 16th 1985 by SI 1985/1316)...
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