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Boodoo v King

Jurisdiction: Trinidad & Tobago

Judge: Smith, J.
Judgment
26 September 2007
Date:
Neutral {:value=>"TT 2007 HC 192", :attribution=>"Judgment", :fulltext_available=>true,
Citation: :vid=>792812477, :url=>"/vid/792812477"}
{:value=>"TT 2007 HC 192", :attribution=>"Judgment", :fulltext_available=>true,
Reported In:
:vid=>792812477, :url=>"/vid/792812477"}
Docket
HCA No. 1141 of 2005
Number:
Court: High Court (Trinidad and Tobago)
Date: 26 September 2007

Id. vLex Justis VLEX-792812477

Link: https://justis.vlex.com/vid/boodoo-v-king-792812477

Text

High Court

Smith, J.

HCA No. 1141 of 2005

Boodoo
and
King

Appearances:

Mr. C. Pope for the plaintiff

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Ms. L. Greene for the defendant

Inheritance and succession - Will — Common law cohabitation — Reasonable financial

provision — Whether the plaintiff was a cohabitant of the deceased — Whether reasonable
financial provisions were made for plaintiff — Plaintiff resided with the deceased from 1996 until
his death in 2004 — Intimate relationship since 1988 — Plaintiff was involved with another man
since 1999 and had a child for him — Plaintiff was declared entitled to the house — Transfer of
property ordered.

INTRODUCTION

Smith, J.

The plaintiff alleges that she was the common law wife / co-habitant of Cecil Osborne up to the
date of his death. Cecil Osborne (the deceased) died on the 5th May 2004.

The defendant is the daughter of the deceased. She is also the Executrix of the Will of the
deceased. This Will is dated 1st May 2000.

The plaintiff claims that the Will of the deceased has failed to make reasonable financial
provision for her. She brings this action under Sections 95 - 97 of the Succession Act (No 27 of
1981) as amended (hereafter referred to as “the Act”), and claims the house where she lived with
the deceased.

The defendant denies that the plaintiff was the co-habitant of the deceased. The defendant
claims that the plaintiff is not entitled to any relief under the Act. The defendant wants the estate
of the deceased to be administered according to his Will.

After hearing the evidence, I find as a fact that the plaintiff was the co-habitant of the deceased up
to the date of his death. I make a declaration to that effect.

I find that the plaintiff is entitled to relief under the Act. I make a declaration that she is entitled to
the house and property where she and the deceased lived together. I order the defendant to
transfer this property to the plaintiff in so far as it forms part of the estate of the deceased.

I order the defendant to pay the costs of the plaintiff to be taxed in default of agreement.

BACKGROUND:

The facts of this case are steeped in “Trinidad bacchanal.”

BACKGROUND:

The plaintiff claims that she had been living with the deceased as man and wife from 1996 till his
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death in 2004. Before this they had been in an intimate relationship since 1988. In 1988 the
plaintiff was 18 and the deceased was 46. At that time the plaintiff was living at the home of the
father of the deceased. After the father of the deceased died in 1996, the deceased moved into
his father's house. There, he lived as man and wife with the plaintiff. In 1996 the plaintiff was a
clerk in the Ministry of Education. The deceased was retired but, in 1996 he was a taxi driver.
The plaintiff and the deceased pooled their resources and began to run the home as a
household. These resources were not a lot and the plaintiff expended all she had in maintaining
the house and household. The deceased contributed to the running of the household but he was
an avid gambler. The plaintiff incurred the majority of the expenditure without a thought. They
were as man and wife and they saw after each other out of love; so much so that when the taxi of
the deceased was stolen, the plaintiff borrowed the money to buy him another one. This taxi was
registered in both their names at the Licensing Authority.

The defendant denies that the plaintiff was the co-habitant of the deceased. It is not disputed that
the plaintiff came to live at the home of the father of the deceased since she was 5 years old. The
plaintiff's mother and stepfather had experienced distressing poverty, and the father of the
deceased took in the family. Only the plaintiff and a younger sister remain at the premises. The
defendant claims that the plaintiff and her sister are bare licensees of the premises. The
defendant states that the plaintiff has never maintained the premises. The defendant is unaware
of the nature of the relationship between the plaintiff and the deceased but denies that it could
have continued beyond 1999. (Now comes the intrigue). This is because in 1999, the plaintiff had
a child for another man, one Michael Joseph. It is not disputed that the plaintiff had been having
an intimate affair with Mr. Joseph, probably since 1998, and that their affair continues to this day.
Given these facts, the defendant claims that there was no man and wife relationship between the
plaintiff and the deceased from 1998 or 1999 until his death in 2004. She has the evidence of a
cousin/neighbour of the deceased to support her.

The Will of the deceased leaves all of his property to the defendant and her brother. The
defendant is the Executrix of the Will of the deceased. In her capacity as Executrix, the defendant
has tried to call in the assets of the deceased. The only known asset is the house where the
deceased lived. This house is now occupied by the plaintiff and her younger sister. The
defendant requires this house since she claims that (i) she and her brother are licensees of the
premises where they now live (ii) this house is on “family land” and there are other relatives of
hers who live in close proximity (iii) the house was devised to her by her father.

The evidence is chief in this case was given by witness statements and affidavits, except for the
evidence of Pamela Joseph. She had to be subpoenaed to give evidence.

It was agreed that I would only consider the evidence of parties who were cross-examined.

I prefer the evidence of the plaintiff and her witnesses to the evidence of the defendant and her
witnesses. The plaintiff has proved her case on a balance of probabilities. I find as a fact that she
was the co-habitant of the deceased from 1996 to 2004. This entitles her to bring a claim for the
re-distribution of the estate of the deceased under the Act.

ANALYSIS:
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SECTION A: THE PLAINTIFF HAS PROVED HER CASE ON A BALANCE OF

PROBABILITIES

SECTION B: THE PLAINTIFF IS ENTITLED TO THE HOUSE WHERE SHE AND THE
DECEASED CO-HABITED.

SECTION A: THE PLAINTIFF HAS PROVED HER CASE ON A BALANCE OF

PROBABILITIES

The evidence of the plaintiff and her witnesses is reliable for the following 2 reasons:

(i) Their evidence is generally consistent and credible. The cross-examination of these
witnesses did not destroy their credibility. It only revealed minor inconsistencies.

(ii) The evidence from an independent witness (Mr. Carl Johnson) is credible and
unshaken. This evidence confirms the plaintiff's case.

The evidence of the defendant and her witnesses is unhelpful and unreliable for the following 2
reasons:

(i) Much of the evidence was equivocal, at best, and unhelpful in determining the disputed
facts.

(ii) The only real evidence in denial of the plaintiff's case came from a cousin/neighbour
(Vernon Finch). His evidence is unreliable because (i) it contains serious contradictions
and (ii) it is coloured by his open dislike of the plaintiff

On a balance of probabilities, I find as a fact that:

(i) the plaintiff and the deceased were in an intimate relationship as man and wife from
1996 up to his death in 2004.

(ii) they both contributed to the running of the household as a family.

(iii) they were “co-habitants” according to the definition of the term in the Distribution of the
Estates Act (No. 28 of 2000). By this Latter Act, a co-habitant was given (inter alia) the
benefits of sections 95 – 97 of the Succession Act (the Act).

(a) The evidence of the plaintiff and her witnesses is reliable:

The plaintiff's case (as summarized in paragraph 3) above was set out in her affidavits. Cross-
examination did not shake her evidence. She admitted that she has been intimately involved with
Michael Joseph. She and Mr. Joseph had one child during the lifetime of the deceased. The
plaintiff has since had another child for Mr. Joseph. She stuck to her story that the deceased
tolerated and even condoned the affair because he wanted her to have a child. The deceased
himself could no longer father any children. He was a diabetic and had heart problems.
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Additionally, he had confided to the plaintiff that he had a low sperm count and this was why his
prior marriage did not last. Inspite of the plaintiff having a child with another man, she and the
deceased continued living together as man and wife. They would have sex. They shared a
household. The deceased even loved her child and treated it as his own.

I noted one inconsistency in her evidence. Whereas she stated in cross-examination that one
Charles Williams had installed toilet facilities on the premises, one Trevor Jackson (another of
the plaintiff's witnesses) stated that it was he who installed those toilet facilities.

Apart from this, the plaintiff's evidence was credible, forthright and unshaken.

10 Trevor Jackson swore to an affidavit in support of the plaintiff's case. In this affidavit he stated
that he had done work at the premises for the plaintiff and the deceased in 1997. He was paid by
the plaintiff but received instructions from the deceased. He lived in the same area as the plaintiff
and the deceased and was aware of their common-law relationship. This relationship was
“actually confirmed” when he did work for them.

In cross-examination, he stated that he actually saw the couple in bed from time to time. They
shared the same room. He was aware that the deceased was an avid gambler. He was also
aware of the relationship between Mr. Joseph and the plaintiff, and knew that this did not affect
the common law relationship between the plaintiff and the deceased. He actually lived in close
proximity to the plaintiff and they would all go on excursions together. On such excursions the
plaintiff and the deceased would hold hands and display open affection for each other. The
deceased had confided to Mr. Jackson that the plaintiff was his intimate partner.

Mr. Jackson's evidence was unshaken by cross-examination. In fact his cross-examination

strengthened the plaintiff's case by providing unassailed details of the situation.

11 Yolande Louis signed a witness statement in support of the plaintiff's case. In this statement she
set out that she knew the deceased and the plaintiff very well. They were the godparents of her
children (a twin). She had also lived with the couple for about 8 months in the year 2000 and
confirmed that they lived as man and wife. They slept in the same bedroom.

In cross-examination Ms. Louis provided further details in support of her witness statement. She
was aware that the plaintiff was having a relationship with Mr. Joseph. Although she did not feel
comfortable with that relationship, she learned to accept it. She stated that both the plaintiff and
the deceased confided in her that they were still having sexual intercourse even in the face of the
plaintiff's relationship with Mr. Joseph.

I noted one inconsistency in her cross-examination. Whereas she stated that she never saw Mr.
Joseph going up the outside stairway and into the porch or the house itself, Mr. Joseph stated
that he had gone into the porch in the presence of Ms. Louis on one or two occasions.

12 Michael Joseph signed a witness statement in support of the plaintiff's case. In this statement he
set out that he had met the plaintiff at the Ministry of Education in 1999. They both worked there.
They became friends and later, they had an intimate relationship. The plaintiff confided in him

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that she had an “urgent need to bear a child” and that the deceased was not against the idea
since he could not “impregnate her”. He stated that he was aware that the plaintiff and the
deceased lived as man and wife. Although he visited the plaintiff at the house where she lived
with the deceased, he never attempted “to disrespect the home” or to interfere with the “on going
stability of the relationship between the deceased and the plaintiff.”

In cross-examination, Mr. Joseph gave further details of his evidence in the witness statement.
He stated that he never had sexual intercourse with the plaintiff at her home while the deceased
was alive. He would take the plaintiff to a hotel to have sexual intercourse with her. He stated that
he had a good relationship with the deceased, so much so that the deceased would invite him
into the house. They would all sit in the porch together and have drinks. The deceased confided
in him that the plaintiff was still “his woman”. The deceased was aware of his relationship with
the plaintiff but he seemed to condone it.

The evidence of Mr. Joseph was not shaken by cross-examination. He remained credible,
forthright and consistent.

13 Carl Johnson signed a witness statement in support of the plaintiff's case. In this statement he
set out that he had known the deceased for over 20 years. They were co-workers and later,
neighbours. He lived opposite to the deceased for about 12-13 years. He moved out of the
neighbourhood in 2006. He was a regular visitor to the home of the plaintiff and the deceased.
He would also go on excursions with the deceased and the plaintiff. On these excursions the
plaintiff and the deceased would openly display affection for each other. He regarded them as
man and wife.

In cross-examination Mr. Johnson gave details of his witness statement. He stated that the
deceased confided in him that he was in a common law relationship with the plaintiff. He was
aware that the plaintiff also had an intimate relationship with another man and that the plaintiff
had a child for this man. However, he did not know the name of the plaintiff's “child father”. He
was also aware that the deceased was a gambler.

Mr. Johnson's evidence was unshaken by cross-examination. He remained credible, forthright

and consistent. Additionally, he was an independent witness with no interest to serve in this
matter. I found his evidence to be the most reliable.

(b) The evidence of the defendant and her witnesses is unreliable

14 The defendant's case (as summarized in paragraph 4 above) was set out in her affidavits.
Counsel for the defendant did not conduct an extensive cross-examination of the defendant but it
was effective. The defendant admitted that when the deceased lived in the same house as the
plaintiff, she only visited the deceased once or twice per year. She stated that she did not know of
the relationship between the deceased and the plaintiff and that she never saw anything between
them. Inspite of this, she could not deny that a common law relationship existed between the
plaintiff and the deceased.

The defendant's evidence did not assist in confirming or denying the cohabitational relationship
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between the plaintiff and the deceased. It was equivocal at best and unhelpful in determining the
disputed facts.

15 Pamela Joseph was subpoenaed by the defendant to give evidence. She had refused to sign a
witness statement. Counsel for the defendant had to seek my leave to issue a subpoena to have
her come to court to give evidence.

Pamela Joseph is the wife of Michael Joseph. They are now estranged, though they live in the
same apartment complex. She was aware of the relationship between her husband and the
plaintiff. She had even had a confrontation with the plaintiff in a maxi-taxi. She stated that she
had met the deceased at her workplace and the deceased told her that if the plaintiff was having
an affair with a married man, she was a fool.

The cross-examination of Mrs. Joseph revealed that she was motivated by an intense dislike for
the plaintiff. She admitted this. It seems that she had taken it upon herself to approach the
deceased at her workplace when he came there to transact business. Mrs. Joseph, conveniently,
could not remember if the deceased affirmed or denied whether he was aware that Mr. Joseph
was having an affair with the plaintiff. Further, even Mrs. Joseph was very much aware that the
deceased was supposed to be “living with” the plaintiff. That is why she approached him at her
workplace.

The cross-examination also revealed that the confrontation between Mrs. Joseph and the plaintiff
in a maxi taxi was a “market cuss out” where each one hurled nasty insults at the other.

Mrs. Joseph's testimony did not assist in confirming or denying the cohabitational relationship
between the plaintiff and the deceased. What little probative value it had was offset by her open
dislike for the plaintiff. This witness exemplified the expression, “Hell hath no fury as a woman
scorned”. Her evidence was only a sideshow of confusion and bacchanal.

16 Vernon Finch signed a witness statement in support of the defendant's case. He stated that he
was the first cousin of the deceased. They were neighbours at the premises in question. About 2
days before the deceased died, they went to a lawyer's office. There, the deceased informed him
that he had made a Will. The deceased entrusted Mr. Finch to collect that Will and give it to his
children if he died. He stated that he had no antagonistic feeling toward the plaintiff. He reiterated
the circumstances under which the plaintiff moved into the premises as a child. He appeared to
be the confidant of the deceased. The deceased had told him that he viewed the plaintiff as a
daughter only, and that he was impotent. He was aware that Mr. Joseph was intimate with the
plaintiff. He stated that he knew that Mr. Joseph and the plaintiff had been intimate from since she
was 18 years of age. He sometimes saw Mr. Joseph leaving the home of the plaintiff at 5:00 a.m.
and the deceased would come home at 6: 00 or 7:00 a.m. According to him, all repairs and other
work on the premises of the deceased was done either by the father of the deceased or by the
deceased himself.

Mr. Finch contradicted his story in cross-examination:

(i) He had stated in his witness statement that he had no antagonistic feelings toward the
plaintiff. He purported to affirm this in cross-examination. He even said that he got along
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well with the plaintiff. However, he contradicted this story immediately after by saying that
he does not speak to the plaintiff and that he kept away from her. Immediately after this, he
again contradicted himself and stated that he got along well with the plaintiff. He then
contradicted himself again and said that he does not speak to the plaintiff. This
contradiction was repeated later in his cross-examination where he said “I like everybody.
Nothing can make me speak to her (the plaintiff). I pass her straight, I keep away from her.”

(ii) In cross-examination he stated that he was not interested in what was going on between
the plaintiff and Mr. Joseph. He contradicted this story by admitting that he did not like what
was going on. He also stated that nothing was bad about what he observed; yet he
contradicted this statement by saying that what the plaintiff was doing was wrong.

(iii) Mr. Finch claimed that he was close to the deceased and shared confidences with him.
Mr. Finch contradicted this story when he stated that he never mentioned his observations
about Mr. Joseph to the deceased even though that relationship between Mr. Joseph and
the plaintiff bothered Mr. Finch.

(iv) Mr. Finch had stated in his witness statement that he had spoken to the deceased about
his relationship with the plaintiff, and that the deceased had told him that the relationship
was like a father and daughter. In cross-examination he contradicted this story by saying
that the deceased never told him of the plaintiff's status on the premises. Later on, he
contradicted himself by saying that he did have a conversation with the deceased about the
plaintiff's status on the premises.

Mr. Finch openly disliked the plaintiff. This dislike so poisoned his mind that he was prepared to
indulge in “obeah” or voodoo like observations about the plaintiff. During his cross-examination
he volunteered that one of the plaintiff's female friends had climbed a breadfruit tree on the
premises and the tree had died as a result.

Further Mr. Finch admitted in cross-examination that it was his view that the property of the
deceased should go to the children of the deceased.

I formed the impression that Mr. Finch is a disgruntled man. His evidence is riddled with
contradictions. He has an open dislike for the plaintiff and is prepared to say and do anything to
spite her. His evidence is also coloured by his desire to give the defendant the property in
preference to the plaintiff. His evidence is unreliable.

SUMMARY OF THE EVIDENCE

17 As I stated in paragraphs 6 and 7 above, the evidence of the plaintiff and her witnesses is
reliable. On the other hand, the evidence of the defendant and her witnesses is unhelpful and
unreliable. I prefer the testimony of the plaintiff and her witnesses and I find that she has proved
her case on a balance of probabilities.

I find that the plaintiff has proved that:

(i) she and the deceased shared an intimate relationship as man and wife from 1996 up to

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his death in 2004; and

(ii) they both contributed to the running of the household as a family.

Based on these findings, the issue of whether the plaintiff and the deceased were co-
habitants or involved in a co-habitational relationship, seems academic. However, for the
sake of completeness, I will examine this issue.

THE PLAINTIFF WAS THE CO-HABITANT OF THE DECEASED

18 A co-habitant in this case means “a woman who has been living with a or who has lived together
with a man in a bona fide domestic relationship for a period of not less than five years
immediately preceding the date of his death.” (see section 2 of the Distribution of Estates Act
No.28 of 2000)

I have found that the plaintiff and the deceased lived together from 1996 up to his death in 2004.
This is a period in excess of five years. The only issue left to be determined is whether they were
“in a bona fide domestic relationship”

In the case Delzine v. Stowe H.C.A. 3007 OF 2001, Mendonca, J. set out certain criteria for
determining whether persons are living together on a bona fide domestic basis. Even though
Mendonca, J. was applying the criteria to the Co-Habitational Relationship Act (No. 30 of 2000),
the wording used is very similar to that in the Distributions of Estates Act (No. 28 of 2000). For the
purposes of determining what is a bona fide domestic relationship, I will also adopt the same
criteria. These criteria are derived from a comparison to similar provisions in the Property
(Relationships) Act 1984 of New South Wales. The 1984 Act sets out a number of criteria which
are relevant to determining the issue of whether persons are in a de facto (bona fide domestic)
relationship. I will list these criteria and briefly apply them to the present facts.

(a) The duration of the relationship.

This is not an issue here since our act mandates a period of at least 5 years co-habitation.
The plaintiff and the deceased lived together for 8 years.

(b) The nature and extent of the common residence.

I have found that the plaintiff and the deceased shared one household.

(c) Whether or not a sexual relationship exists.

I have found so in this present case.

(d) The degree of financial dependence or interdependence, and any arrangements for
financial support between the parties.

I have found that the plaintiff and the deceased contributed fully to the expenses of the
house and household and lived together as one family.

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(e) The ownership and acquisition of property.

I accept the plaintiff's evidence that they bought household items together. Further, the
plaintiff purchased a taxi for the deceased in their joint names when his own was stolen.

(f) The degree of mutual commitment to a shared life.

The facts of this case demonstrate a total commitment to a shared life

(g) The care and support of children.

Even though the plaintiff and the deceased had no children together, the undisputed
evidence is that the deceased cared for the plaintiff's child as if it were his own.

(h) The performance of household duties.

The facts show that the plaintiff performed most of these. The deceased supervised some
repairs as he was able. This is how they ran their household

(i) The reputation and public aspects of the relationship.

All the witnesses except for the defendant accept that they heard of or knew of the common
law relationship between the plaintiff and the deceased. It was an accepted neighbourhood
“fact”.

19 When I apply criteria (a) – (i) listed above to the facts of this case I find that the plaintiff and the
defendant lived in a bona fide domestic relationship for a period of about 8 years immediately
preceding the death of the deceased. I find that they were “co-habitants” according to the
definition in section 2 of the Distribution of Estates Act (No. 28 of 2000).

SECTION B: THE PLAINTIFF IS ENTITLED TO THE HOUSE WHERE SHE AND THE
DECEASED CO-HABITED

20 Under Section 95 (1) as of the Succession Act (the Act), where a deceased is survived by a co-
habitant, the co-habitant may apply to the court for an order under Section 96 of the Act on the
ground that the disposition of the deceased's estate effected by his Will and/or the laws of
intestacy is not such as to make reasonable financial provision for the co-habitant.

As was stated above in paragraph 4, the Will of the deceased left all his property to the defendant
and her brother to the exclusion of the plaintiff. The plaintiff, as the co-habitant of the deceased
now brings this action on the ground that the disposition of the deceased's estate by his Will fails
to make reasonable financial provision for her.

21 Section 96 of the Act, empowers a court hearing an application under section 95 to make certain
orders. These orders can cause a re-distribution of the estate of a deceased.

The Originating Summons which commenced this action only asks for a maintenance order for
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the plaintiff. It contained no request to obtain the deceased's interest in the dwelling house where
he co-habited with the plaintiff. This omission to ask for other orders with respect to the
deceased's interest in the dwelling house is not a bar to such relief in this case for the following
three (3) reasons.

Firstly, the plaintiff's main affidavit in support of the Originating Summons asks for the benefit of
the dwelling house out of the deceased's estate. (See paragraph 13 of the plaintiff's affidavit filed
9th May 2005). The defendant's main affidavit in response states that the remedies sought by the
plaintiff in her affidavit are unreasonable and unjust (see paragraph 20 of the defendant's affidavit
filed 11th July 2005). Therefore, the parties joined issue on the entitlement to the dwelling house.
In fact, in these affidavits, no mention is made of an entitlement to a maintenance order.

Secondly, there is no dispute that the only asset of worth in the estate of the deceased is the
dwelling house. The deceased was an avid gambler by all accounts. What little assets he had
left would have been incapable of providing a sustainable maintenance benefit for the plaintiff.

Thirdly, the Attorneys-at-Law for the parties argued the case on the entitlement to the dwelling
house alone. There was no surprise or dispute as to the nature of the relief that the plaintiff was
claiming in this case, namely, the benefit of the dwelling house where the parties co-habited. The
defendant's Attorney-at-Law never even took issue with the variance between the claim for
maintenance in the Originating Summons and the plaintiff's claim for the benefit of the
deceased's share of the dwelling house. In any event, if the defendant's Attorney-at-Law had
raised such an objection, I would have felt justified in exercising my discretion to allow an
amendment of the Originating Summons to allow the plaintiff to make a claim for the benefit of the
dwelling house where the parties co-habited.

22 The relevant orders which the plaintiff asks the court to make under Section 96 of the Act are:

(i) An order under section 96 1(c) for the transfer of the benefit of the dwelling house to the
plaintiff; or

(ii) An order under section 96 1(d) for the settlement of the dwelling house for the benefit of
the plaintiff.

Either section would produce the same or a similar result in this case.

23 Section 97 of the Act sets out the matters for a court to consider when making any of the orders
under section 96 (as were just mentioned). I will list only the relevant matters and briefly apply
them to the present facts.

(i) Section 97 (1)(a): The financial resources and needs which the applicant has or is likely
to have in the foreseeable future.

The applicant is a secretary in the public service. Her salary is a modest $3,400.00 per
month. She has 2 children. She has come from a situation of distressing poverty. She
started living in the dwelling house out of the generosity of the father of the deceased. This
is the only home she knows. She is now about 37 years old with little known prospects of

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improving her financial situation.

(ii) Section 97 (1)(c): The financial resources and needs which the beneficiaries of the
estate have or are likely to have in the foreseeable future.

The beneficiaries of the estate of the deceased are the defendant and her brother. The defendant
states that she is a supervisor. She gives no indication of the nature of her job or her
emoluments. She lives as a licensee of premises with an adult son. She is 42 years old. The
defendant's brother is 41 years old and lives as a licensee of premises near to the defendant. I
have no evidence as to his employment status or financial resources or needs.

Given this paucity of information, I can make no real assessment of the resources and needs of
the beneficiaries of the deceased's estate. I cannot give their needs any precedence over the
obvious needs of the plaintiff.

(iii) Section 97 (1)(d): The obligations and responsibilities which the deceased had toward the
applicant or toward the beneficiaries of the estate.

The deceased and the plaintiff lived as one household. They pooled their modest resources to
sustain themselves and the household. The evidence shows that the deceased even loved and
cared for the plaintiff's child as if it were his own. The deceased fully accepted his obligations
and responsibilities toward the plaintiff.

There is no evidence that the deceased ever accepted any obligation or responsibility to the
defendant or her brother. There was little contact between the deceased and the defendant.
None was shown between the deceased and the defendant's brother. The defendant admitted
that she only visited the deceased once or twice per year.

The evidence shows that the deceased accepted obligations and responsibilities only to the
plaintiff and not to the defendant.

(iv) Section 97 (1) (e): The size and nature of the net estate of the deceased.

pThere is no dispute that the only asset of value in the estate of the deceased is the dwelling
house where he co-habited with the plaintiff. This fact puts a severe constraint on the ability to
distribute the estate of the deceased between the plaintiff and the deceased.

(v) Section 97 (I) (g): Any other matter, including the conduct of the applicant or any person,
which the court may consider relevant.

The plaintiff became intimate with the deceased from age 18. Later, she became his co-habitant.
She has spent the majority of her fruitful years in a relationship with the deceased. She has
invested all she has in the household. This is the only home she has.

On the other hand, the defendant and her brother have their own households. There is no
evidence that they ever contributed to the dwelling house where the deceased co-habited with
the plaintiff, nor have they shown any other contribution to the welfare of the deceased.

Given the obvious antipathy between the plaintiff and the defendant and the modest size and
value of the dwelling house, it would be impracticable to order them to share the dwelling house.
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value of the dwelling house, it would be impracticable to order them to share the dwelling house.
Any order to share the dwelling house would result in a sale and the removal of the plaintiff from
the only home she knows. Given her modest means, this would operate harshly on the plaintiff.

24 Section 97 (2) of the Act sets out other matters for the court to consider when making an order in
favour of (inter alia) a cohabitant. They are:

(a) The age of the applicant and the duration of the marriage (co-habitational) relationship.

I have already considered this above (see paragraph 22(v))

(b) The contribution made by the applicant to the welfare of the family of the deceased
including any contribution by looking after the home or caring for the family.

I have already considered this in several parts of this judgment. But I will restate it here. I find as a
fact that the deceased contributed her entire financial resources to the running of the household.
She cooked, washed and cleaned for the deceased. She maintained him in his lifestyle. She
even funded and supervised house repairs with the deceased. They bought household items
together. When his taxi was stolen, the plaintiff solely financed a replacement taxi for the
deceased. The deceased was an avid gambler and seems to have gambled away all his
savings. The plaintiff kept him living at a standard and comfort level which he would not probably
have enjoyed otherwise.

25 Having applied all the criteria to be considered by Section 97 of the Act, I find that it is most
equitable to transfer the interest of the deceased in the dwelling house where he lived to the
plaintiff and I make the following orders:

) I grant a declaration that the plaintiff was the co-habitant of the deceased. 2) I grant a
declaration that the plaintiff is entitled to the house and the property occupied by Cecil
Osborne (deceased) at 12 Irving Street, Petit Bourg. 3) I order the defendant as Executrix of
the estate of Cecil Osborne (deceased) to transfer to the plaintiff the property comprising the
house and land at 12 Irving Street, Petit Bourg which the deceased actually occupied in so
far as it forms part of the estate of the deceased. 4) I order the defendant to pay the plaintiff's
costs to be taxed in default of agreement.

Justice G. Smith

Judge

20 Oct 2023 23:50:05 13/13