Re B

JurisdictionCayman Islands
Judge(Murphy, J.)
Judgment Date27 October 1999
CourtGrand Court (Cayman Islands)
Date27 October 1999
Grand Court

(Murphy, J.)

IN THE ESTATE OF B

J.H. Furniss for the applicants;

S.A. Roy and Ms. G.M. Berry for the respondents.

Cases cited:

(1) McLean v. McLean, 1988–89 CILR N–14, considered.

(2) Makein, In re, Makein v. Makein, [1955] Ch. 194; [1955] 1 All E.R. 57.

(3) Minister of Home Affairs v. Fisher, [1980] A.C. 319; [1979] 3 All E.R. 21.

(4) RHB Trust Co. Ltd. v. Butlin, 1992–93 CILR 219, followed.

(5) Sydall v. Castings Ltd., [1967] 1 Q.B. 302; [1966] 3 All E.R. 770, dicta of Russell, L.J. applied.

(6) Watson-Morgan v. Grant, 1990–91 CILR 81, observations of Zacca, P. applied.

(7) Woolwich Union Guardians v. Fulham Guardians, [1906] 2 K.B. 240; (1906), 22 T.L.R. 579.

Legislation construed:

Affiliation Law, 1973 (Law 10 of 1973).

Guardianship and Custody of Children Law (1996 Revision) (Laws of the Cayman Islands, 1963, cap. 65, revised 1996), s.2: The relevant terms of this section are set out at page 465, line 26.

s.17: The relevant terms of this section are set out at page 465, lines 30–31.

Property (Miscellaneous Provisions) Law, 1994 (Law 7 of 1994), s.4: The relevant terms of this section are set out at page 466, lines 15–17.

Succession Law (1995 Revision) (Law 18 of 1975, revised 1995), s.35(1): The relevant terms of this sub-section are set out at page 463, lines 14–18.

s.35(2): The relevant terms of this sub-section are set out at page 463, lines 19–23.

(3): The relevant terms of this sub-section are set out at page 463, lines 24–30.

(4): The relevant terms of this sub-section are set out at page 463, lines 31–38.

Family Law Reform Act 1987 (c.42), s.1(1):

‘In this Act and enactments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them … have or had been married to each other at any time.’

Succession-intestacy-rights of illegitimate children-under Succession Law (1995 Revision), s.35(3) no claim against father”s estate on intestacy unless deceased adjudged father by affiliation order-court”s acceptance of unchallenged evidence of paternity insufficient

The applicants applied for a ruling that they were entitled to claim against their father”s estate upon his death intestate.

The two applicants were the illegitimate children of the deceased. The deceased was also the father of two other legitimate children, by the respondent, his wife and administrator of his estate. By s.35(3) of the Succession Law (1995 Revision), an illegitimate child who had been adjudged by an affiliation order to be the child of his natural father was entitled to the interest in his father”s estate to which he would have been entitled had he been legitimate. No affiliation proceedings had taken place to establish legally the paternity of the applicants, but it was not challenged and the court accepted the affidavit evidence of the applicants” mother.

The applicants submitted that (a) they were entitled to share in the estate by virtue of s.35(3), notwithstanding that no affiliation order had been made, since the court had made an adjudication of paternity upon the affidavit evidence in the present proceedings; (b) the sub-section should be construed so as to avoid injustice to illegitimate children who had been voluntarily acknowledged and provided for by their natural fathers during their lives, whilst favouring those whose fathers had been forced by affiliation proceedings to acknowledge them, or who claimed upon the death of their mothers; and (c) alternatively, s.35(3) did not apply if there had been no affiliation proceedings, and the court should therefore take the approach demonstrated by other Cayman statutes, in which the word ‘child’ expressly included an illegitimate child, and with which the Succession Law (1995 Revision) was in pari materia.

The respondent submitted in reply that (a) in the absence of an affiliation order, the applicants were not entitled to an interest in their natural father”s estate, since the words of s.35(3) were clear, and any injustice caused was a matter for the legislature, not the court; (b) moreover, there was no general legislation in force in the Cayman Islands similar to that in England requiring equal treatment of legitimate and illegitimate children of either parent; and (c) since legislation concerning the welfare and custody of children was not in pari materia with that dealing with property rights, the express provisions of the statutes, cited

by the applicants, which equated the treatment of legitimate and illigitimate children, were irrelevant.

Held, making the following ruling:

Since there had been no affiliation order made during the deceased”s lifetime in respect of the applicants, they did not qualify for a share in his estate upon intestacy. Section 35(3) of the Succession Law (1995 Revision) was clear and unambiguous and the court was bound to construe it according to its plain meaning without regard to any injustice which might result. There was no general statutory provision in force in the Cayman Islands reversing the presumption that an illegitimate child could not inherit upon the intestacy of its father, or affecting the construction of relevant legislation. Section 35 had been enacted with the intention of modifying the common law position, and the legislature had not taken the opportunity, when later introducing sub-s. (3), to equate the position of children of unmarried fathers to that of children of unmarried mothers. Similarly, as different considerations applied when dealing with property rights (as here) to those in issue when deciding upon the welfare and protection of children, other Cayman statutes cited by the applicants were not in pari materia with the Succession Law, and could have no bearing on the interpretation of s.35(3) even if its meaning were not plain (page 464, line 28 – page 465, line 18; page 465, line 39 – page 466, line 10; page 466, line 22 – page 467, line 41).

20 MURPHY, J.: This is a proceeding commenced by originating
summons on behalf of two illegitimate children claiming rights arising
upon the intestacy of their deceased natural father.
The named respondent is B”s lawful wife, who was in fact one of two
administrators of B”s estate named in P & A Cause No. 74 of 1998. Those
25 having an undisputed interest in B”s estate are his wife and two legitimate
children of that marriage. There are two other illegitimate children, the
issue of B and another woman who never married.
Sadly, the estate is very modest and, after the wife”s undisputed share,
the amount left for the children, whether two or four of them, will be
30 quite small. None the less, the issue is of importance to all concerned. It is
also important to the law of this jurisdiction, as the issue of
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