The Caribbean Court of Justice (CCJ) has made a landmark ruling in an intriguing case regarding the right of a Barbadian woman to inherit from the estate of her deceased live-in partner.
The CCJ yesterday handed down its decision in favour of Katrina Smith in the case Smith v Selby, ruling that a single woman who cohabited with a man for five years just before his death has the right to inherit from his estate.
The court held that Smith should be considered the spouse of her late partner, Barbadian psychologist Albert Michael Selby. The court found that the definition of spouse, under Barbados’ Succession Act, is a single woman who has cohabited for the statutory period of five years immediately preceding the death of her cohabitant partner.
Smith had applied for special leave to appeal the decision of the Barbados Court of Appeal, which had ruled in February that she was not the spouse of the deceased, overturning a decision five years earlier by the High Court.
The matter centred on the interpretation of Barbados’ Succession Act which states: “For the purposes of this Act, reference to a ‘spouse’ includes: a single woman who was living together with a single man as his wife for a period of not less than five years immediately preceding the date of his death”.
The CCJ examined the legislative regime that existed prior to the Act and noted that prior to its enactment, the law excluded the survivor of a cohabitational relationship from benefiting on the death of the partner who had not left a will.
Smith and the late Selby had been living together as “husband and wife” since 2002 until his death in 2008. He had been married but separated from his wife and officially divorced on April, 30, 2004 – nine months short of the minimum five-year period, which the Court of Appeal insisted was necessary in order for the term spouse to take effect. He had no children.
However the CCJ concluded that the natural and ordinary meaning of the words in the Act, and a review of the Act together with its social and historical context, is that a single woman who has cohabited for the statutory period of five years immediately preceding the death of her cohabitant partner has the right to inherit from him on his death, provided he is a single man.
“The most important consideration to determine who is entitled to inherit as spouse is the period of cohabitation immediately preceding death. The law clearly prescribes that cohabitation for five- years is the statutory period which gives inheritance rights. It also prescribes that the court cannot declare a single woman to be the spouse of a married man.
“We have concluded that the assessment of marital status for the purpose of rights under the Act is made immediately preceding the death of the deceased. We therefore conclude that Katrina, being a single woman who was living together with the deceased as his wife for a period of not less than five years immediately preceding the date of his death, the deceased, then being a single man who had been divorced from his wife, is entitled to the benefit of inheritance as his spouse.”
While the full details and value of the estate were not disclosed in evidence, it included shares in businesses the late Selby operated, interests in a commercial fishing boat, which is said to be in the possession of his brother Anthony, interests in a dwelling house currently occupied by Katrina, and some cash in the bank.
In making this decision, the CCJ set aside the earlier decision of the Barbados Court of Appeal and all orders for costs from the courts below. The court ordered Anthony Selby to pay costs in the sum of $20 000.
The CCJ also expressed concern that it appeared to be the practice in Barbados for matters to be stayed pending the outcome of interlocutory appeals without a formal court order. The court commented that the nine years that elapsed since the death of the deceased was inconsistent with the overriding objective to resolve disputes justly and expeditiously.
It added that such delay inevitably caused distress as no one had been appointed to administer Selby’s estate.
The CCJ suggested that the practice of staying proceedings by default pending the hearing of an interlocutory appeal be discontinued.
The court comprised the president Sir Dennis Byron, and Justices Jacob Wit, David Hayton, Rajnauth-Lee and Denys Barrow.
Attorney-at-law Cicely Chase, QC, Bryan L. Weekes and Shari-Ann Walker appeared for Smith while Dawn Shields-Searle and Tariq Khan represented Selby.
