REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL BETWEEN AND

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL CA No. S 196 of 2013 BETWEEN NAEEM ALI KIMBERLY MAHARAJ Appellants AND LILA SEETARAM Respondent PANEL: Nolan Bereaux J.A. Gregory Smith J.A. Peter Rajkumar J.A. APPEARANCES Mr. Ronnie Bissessar, Ms. G. Seepersad-Singh instructed by Mr. D. M Kidney on behalf of the Appellants. Mr. Abdel Ashraph, Mr. Imran Khan on behalf of the Respondent. Date Delivered: May 23rd 2017 I have read the judgment of Rajkumar J.A. and I agree with it. Nolan Bereaux Justice of Appeal I also agree. Gregory Smith Justice of Appeal Page 1 of 22

2 Table of Contents Background 3 Issue for determination 4 Conclusion 4 Order 5 Analysis 5 Statutory Context The Administration of Estates Act (AEA) 6 The current definition of kin and next of kin 7 The original definition of kin and next of kin 8 Wills and Probate Act Next of Kin 9 Persons entitled to apply for administration 10 Alternative statutory definition next of kin 10 Definitions of next of kin apparent conflict 11 Statutory Construction 15 Ghany v The Attorney General-guidelines 15 Page (i) The intended purpose of the statute or provision in question 16 (ii) That by inadvertence the draftsman and Parliament failed to give 16 effect to that purpose in the provision in question (iii) The substance of the provision Parliament would have made, had the error in the Bill been noticed 18 Conclusion 21 Order 22 Page 2 of 22

3 Background 1. This appeal arises out of an application by Lila Seetaram, the mother (the respondent, or the mother), of the minor child Aalia, for a grant of Letters of Administration of the estate of Aalia s father Neeshad Ali, in the following circumstances: i. From March 19 th 2007 Neeshad Ali, (the deceased) and the respondent were in a cohabitational relationship. ii. On the May 4 th 2009, during that relationship, Aalia was born. iii. On the August 15 th 2010 the deceased passed away, leaving his daughter Aalia as his sole beneficiary. iv. On November 2 nd 2011 the respondent applied for a grant of Letters of Administration of the estate of the deceased on behalf of the minor child, as her natural mother. v. On July 2 nd 2012 the appellants, siblings of the deceased, issued a caveat in respect of the application and filed proceedings claiming:- a. a declaration that the respondent is not a proper person to administer the estate of the deceased, b. an order that the respondent s application for the grant of Letters of Administration be struck out, and, c. an order that the appellants are entitled to apply for a grant of Letters of Administration of the estate of the deceased in priority to anyone else. Page 3 of 22

4 Issue for determination 2. The question to be determined is whether the Respondent is entitled to apply for a grant of Letters of Administration of the deceased s estate in her capacity as mother of the minor child of the deceased. Conclusion 3. The Respondent is entitled to apply for a Grant of Letters of Administration of the deceased s estate in her capacity as mother of the minor child of the deceased:- a. because as her natural mother, under the Family Law (Guardianship of Minors, Domicile and Maintenance) Act Chapter 46:08, she is the legal guardian of the minor; and b. because (i) under section 2 of the Wills and Probate Act next of kin means the person or persons entitled under an intestacy according to the provisions of the Administration of Estates Act, and (ii) under section 23 of the Administration of Estates Act persons entitled under an intestacy include both kin and next of kin. The minor, being issue of the deceased, falls within the definition of kin under section 2 of the Administration of Estates Act, and is thus entitled to his estate under his intestacy (s. 24(2) of the Administration of Estates Act). c. In so far as under section 30 of the Wills and Probate Act applications for administration may be made by the next of kin, in section 2 of that Act next of kin would also include the minor, as she is entitled under an intestacy. d. A purposive construction of the definition of next of kin in the Administration of Estates Act is both justified and required, given the absurd consequences that would otherwise follow. An exclusive reliance on the definition of next of kin in the Page 4 of 22

5 Administration of Estates Act would prohibit issue of an intestate deceased, (defined as kin but not next of kin), from applying for Letters of Administration. However more distant relatives would be permitted to do so even in cases where those relatives could not be beneficiaries on an intestacy. Order 4. In the circumstances the appeal is dismissed. Analysis 5. Under s. 30 of the Wills and Probate Act applications for administration of the estate of an intestate deceased may be made by the next of kin. However both kin and next of kin are terms defined in section 2 of the Administration of Estates Act. 6. Under an amendment introduced by the Distribution of Estates Act to the definition of kin and next of kin, under the Administration of Estates Ordinance, the minor, as issue, at first glance appears to fall within the definition of kin, but does not appear to fall within the definition of next of kin. 7. Because of this, the appellants contend that the respondent, as guardian of the minor, cannot make an application on her behalf for administration of her deceased father s estate, because, as his issue, the minor falls within the definition of kin, but not next of kin. This contention requires scrutiny and analysis of the statutory context and its history. Page 5 of 22

6 Statutory Context The Administration of Estates Act 8. The Administration of Estates Act at section 1 provides (all emphasis added): This Act may be cited as the Administration of Estates Act and shall be read as one with the Wills and Probate Act. 9. The Distribution of Estates Act 2000 (Act No. 28 of 2000) set out hereunder, (with all emphasis added), introduced an amendment to the Administration of Estates Ordinance (now the Administration of Estates Act) as follows:- 3. The Administration of Estates Ordinance is amended (a) in section 2 by adding the following definitions in appropriate alphabetical sequence: cohabitant means a person of the opposite sex who, while not married to the intestate, continuously cohabited in a bona fide domestic relationship with the intestate for a period of not less than five years immediately preceding the death of the intestate; estate includes both real and personal property; issue includes all lineal descendants of an ancestor, whether born within or outside of marriage; kin means, in relation to a deceased person, the issue of the deceased, his father or mother, his grandparents and great grandparents; next of kin means, in relation to a deceased person (a) the brothers and sisters of the deceased; (b) the issue of the grandparents of the deceased; (c) the brothers and sisters of a parent of the deceased; Page 6 of 22

7 (d) the issue of any brothers or sisters of the deceased, and the kindred of the half blood shall rank immediately after those of the whole blood of the same degree of kinship to the estate; (b) by repealing section 3; and 3 (c) by repealing sections 23, 24, 25, and 26 and substituting the following: 23. An estate or interest to which a deceased person was entitled on his death in respect of which he dies intestate shall, after all payment of debts, duties and expenses be distributed or held on trust amongst the same persons being kin or next of kin in accordance with sections 24, 25, 26 and 26A. The current definition of kin and next of kin 10. As a result of the amendment, Section 2 of the Administration of Estates Act now provides (all emphasis added): kin means in relation to a deceased person, the ISSUE of the deceased, his father or mother, his grandparents and great grandparents. next of kin means, in relation to a deceased person (a) the brothers and sisters of the deceased; (b) the issue of the grandparents of the deceased; (c) the brothers and sisters of a parent of the deceased; (d) the issue of any brothers or sisters of the deceased, Page 7 of 22

8 and the kindred of the half blood shall rank immediately after those of the whole blood of the same degree of kinship to the estate; The original definition of kin and next of kin 11. The repealed section 3 of the Administration of Estates Ordinance is relevant. It is set out as follows: 3(1) No person shall be deemed of kin to a deceased person intestate for the purpose of beneficial succession to his estate who is not either lawful issue of the deceased, or his father or mother, or a grandfather or grandmother or great grandfather or great grandmother of the deceased, or the lawful issue of any such person. (2) by the next of kin of a deceased are meant the person or persons nearest in degree of relationship, among those of kin within the meaning of the last preceding subsection, each step to or from the common ancestor reckoning as a degree of kinship; the half blood reckoning together immediately after the whole blood of the same degree. (The distinction between lawful issue and issue born out of wedlock is now largely irrelevant as a result of the Status of Children Act passed in 1983). 12. Under the Administration of Estates Ordinance, prior to its amendment, lawful issue of the deceased were deemed kin, and next of kin were to be found from among those persons who are kin. Lawful issue of the deceased were therefore undoubtedly both kin and next of kin. Page 8 of 22

9 13. In the repeal of section 3 and the replacement of s. 3 (2) with a definition of next of kin, omitted from that definition was any explanation of the link between kin and next of kin, whereas in the original unamended s. 3 (2), next of kin was clearly a subset of kin. Wills and Probate Act Next of kin interpretation 14. Section 1 of the Administration of Estates Act was not amended by the Distribution of Estates Act. Therefore the Administration of Estates Act must still be read as one with the Wills and Probate Act. 15. Section 2 of the Wills and Probate Act provides that next of kin means the person or persons entitled under an intestacy according to the provisions of the Administration of Estates Act. 16. The Administration of Estates Act now provides at Section 23: (all emphasis added) An estate or interest to which a deceased person was entitled on his death in respect of which he dies intestate shall after all payment of debts, duties and expenses be distributed or held on trust amongst the same persons being kin or next of kin in accordance with sections 24, 25, 26 and 26A. 17. Therefore both kin and next of kin are persons so entitled under an intestacy according to the provisions of the Administration of Estates Act, and would be entitled to a distribution under an intestacy. Page 9 of 22

10 18. Further section 24 (2) of the Administration of Estates Act, introduced by section 3 (c) of the Distribution of Estates Act, provides that Where an intestate dies leaving issue, but no spouse, his estate shall be distributed per stirpes among the issue. The minor would therefore be entitled to distribution of the deceased s estate under his intestacy. Persons entitled to apply for administration 19. Section 30 of the Wills and Probate Act provides: Applications for administration may be made by the following persons, as of course, and in the following order of preference: (a) In cases of intestacy (i) (ii) (iii) The surviving husband or widow of the intestate; The next of kin; The Administrator General. 20. By the amendment introduced by the Distribution of Estates Act to the definition of kin and next of kin, in the Administration of Estates Ordinance, the minor, as issue, at first glance appears to fall within the definition of kin, but does not appear to fall within the definition of next of kin within the meaning of that term used in section 30 of the Wills and Probate Act. Alternative statutory definition of next of kin 21. However that definition in the Administration of Estates Act would not be determinative of the issue as to who is entitled to apply for a grant of administration. That is Page 10 of 22

11 because the Wills and Probate Act (WPA) itself defines next of kin at section 2. That definition of next of kin in the Wills and Probate Act would govern the interpretation of next of kin as that term is used in section 30 of the same Act. It is that definition which governs persons entitled to apply for administration. It is clear that such persons, entitled to a distribution under an intestacy, include both kin and next of kin as defined in the Administration of Estates Act. 22. Upon closer examination therefore, the definition of next of kin under section 2 of the Wills and Probate Act, (for the purpose of determining who is entitled to apply for administration under section 30 of the WPA), turns out to include kin and next of kin as defined in the Administration of Estates Act, because both kin, (which includes issue), and next of kin are entitled under an intestacy It is undisputed that the minor is the sole issue of the deceased and that the respondent, the mother of the minor, was not a spouse of the deceased. Neither has she obtained a declaration that she was a cohabitant of the deceased under s. 25(3) of the Administration of Estates Act. Definitions of next of kin apparent conflict 24. The issue that must be confronted is whether the express words of section 3 (a) of the Distribution of Estates Act, and the definition introduced thereby into the Administration of 1 according to the provisions of the Administration of Estates Act to distribution of an intestate deceased s estate Page 11 of 22

12 Estates Ordinance (now Act) of next of kin, must be given effect, to the exclusion of sections 2 and 30 of the Wills and Probate Act. 25. Section 2 of the Administration of Estates Act (introduced by Section 3 (a) of the Distribution of Estates Act) 2, appears to contemplate that:- i. brothers and sisters of the deceased, ii. the issue of the grandparents of the deceased, iii. the brothers and sisters of a parent of a deceased, iv. the issue of any brothers or sisters of the deceased,including kindred of the half blood, can as next of kin, make an application under Section 30 of the Wills and Probate Act for a grant of Letters of Administration. 26. Read by itself, none of those persons would be entitled to benefit under an intestacy if the deceased left issue. (See section 24(2) of the Administration of Estates Act). Yet the issue of the deceased, as is the case here, would apparently not be entitled to make an application for a grant of administration, even though again, as in the instant case, only the issue of a deceased would be entitled to distribution of the estate of a deceased upon intestacy. 27. It had always previously been the case under the original section 3 of the Administration of Estates Ordinance and section 30 of the Wills and Probate Act) that issue ( kin, of 2 read by itself without the context of s. 2 of the Wills and Probate Act and s A of the Administration of Estates Act Page 12 of 22

13 whom next of kin was a subset), were expressly entitled to make such application for administration. See the original Administration of Estates Ordinance below Even after amendment of s. 23 and 24 of the Administration of Estates Act by the Distribution of Estates Act, issue continue to be entitled to benefit on a distribution of the estate of a deceased under s. 23 and 24 of the Administration of Estates Act. 29. Counsel for the respondent has pointed to severe practical inconvenience that could arise if the definition of next of kin, introduced by section 3(a) of the Distribution of Estates Act were permitted to take precedence over that in s.2 of the Wills and Probate Act. 30. The issue of any brothers or sisters of the deceased would be the cousins of any issue of the deceased. Yet no explanation was offered/suggested as to why a deceased s children should be disentitled from applying for Letters of Administration, yet their cousins, who would not even be entitled under an intestacy to a distribution of the deceased s estate, would be so entitled. There would be no incentive for those persons who would not benefit from the estate to expend the cost, time and effort to apply for a grant of Letters of Administration (1) No person shall be deemed of kin to a deceased person intestate for the purpose of beneficial succession to his estate who is not either lawful issue of the deceased, or his father or mother, or a grandfather or grandmother or great grandfather or great grandmother of the deceased, or the lawful issue of any such person. (2) by the next of kin of a deceased are meant the person or persons nearest in degree of relationship, among those of kin within the meaning of the last preceding subsection, each step to or from the common ancestor reckoning as a degree of kinship; the half blood reckoning together immediately after the whole blood of the same degree. ) Page 13 of 22

14 31. Similarly, in the case of a deceased, in his seventies at the time of death, the brothers and sisters of the deceased, if any, and if alive, would themselves be likely to be elderly. Likewise, the issue of the grandparents of the deceased would also be likely to be elderly, as would the brothers and sisters of a parent of a deceased, if even alive. Like the cousins they would not benefit from the estate of the deceased under an intestacy. Yet they are parties recognized as entitled to apply for Letters of Administration for the benefit of the deceased s issue,while the issue themselves would not be so entitled. 32. Furthermore, prior to the Distribution of Estates Act and the amendment to the definition of next of kin in the Administration of Estates Ordinance (now Act), the guardian of the minor, under the Family Law (Guardianship of Minors, Domicile and Maintenance) Act Chapter 46:08, would have been entitled to make an application for administration of the estate of the deceased, on behalf of the minor (as issue of the deceased) 4. No explanation has been suggested as to why Parliament would have intended to consciously disentitle issue from now making such an application. 33. The definition of kin and next of kin in Section 3 (a) of the Administration of Estates Act, (introduced by the Distribution of Estates Act), has the potential to result in absurdity. Those absurd results however do not arise when the definition of next of kin contained in the Wills and Probate Act is given effect, as issue would be both entitled to benefit under an 4 under the previous s. 3 of the Administration of Estates Ordinance next of kin was a subset of kin, and kin included issue of the deceased Page 14 of 22

15 intestacy AND qualified to apply for a grant of letters of administration of the estate of a deceased. 34. A purposive approach to the construction of section 2 of the Administration of Estates Act is required. The reasoning of the trial Judge was to the same effect at paragraphs 14 to 16 of the judgment, with which we agree. Statutory construction 35. Further, or alternatively, to the extent that any words need to be read into s. 2 of the Administration of Estates Act to avoid absurdity, the considerations set out in Fazal Ghany v The Attorney General [2015] UKPC 12 (Fazal Ghany) as to the circumstances in which, and the extent to which this is permissible must be observed. 36. Three considerations are set out by the Privy Council in Ghany at paragraph 14 5 These considerations are i. the intended purpose of the statute or provision in question, ii. whether by inadvertence the draftsman and Parliament failed to give effect to that purpose in the 5 [14] The circumstances in which it is open to the courts in interpreting legislation to correct obvious drafting errors are strictly confined, not least because the role of the courts must be limited to interpreting the statute and must not trespass into legislating. Nevertheless, in appropriate circumstances it is open to the courts to read words into a statute in order to correct an error. The applicable principles were stated by Lord Nicholls in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 2 All ER 109 at 115, [2000] 1 WLR 586 at 592 as follows: 'It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross' admirable opuscule, Statutory Interpretation (3rd edn, 1995) pp He comments (p 103): In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role. This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation (see per Lord Diplock in Jones v Wrotham Park Settled Estates [1979] 1 All ER 286 at 289, [1980] AC 74 at ).' Page 15 of 22

16 provision in question, and iii. the substance of the provision Parliament would have made, had the error in the Bill been noticed. 37. It is not in dispute that the Distribution of Estates Act amended the Administration of Estates Act by expressly including, inter alia, provision for cohabitants. What has not been established is that Parliament intended to change the law thereby to now preclude the issue of an intestate deceased from applying for administration of his estate. 38. Extracts of the Senate debate, to the extent that they may even be admissible under the guidelines in Pepper v Hart, (infra) do not confirm any clear intention to deliberately change the meaning of next of kin to exclude issue from being persons entitled to apply for administration. See Pepper v Hart [1993] 1 All E.R. 42 at 69 per Lord Browne-Wilkinson. 6 (i) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question 39. There is an omission by the Legislature, the effect of which would be, at first sight, to exclude persons who are defined as kin, (but not next of kin), from making an application (as next of kin) for administration of the estate of a deceased. 6 I therefore reach the conclusion, subject to any question of parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to parliamentary materials where: (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear. Further than this, I would not at present go. Page 16 of 22

17 40. The issue is whether, consistent with the law as formulated and applied in Ghany the court is entitled to assume that that omission is accidental, and to interpret the statute so as to avoid that irrational result, or even to include words if absolutely necessary to reflect that fact. 41. Having considered Ghany I must conclude that by inadvertence the draftsman and Parliament failed to give effect to that (legislative) purpose in the provision in question. This is apparent from the fact that, even with the new definition of next of kin in the Administration of Estates Act, when the definition of next of kin in the Wills and Probate Act (s. 2) is read together with the Administration of Estates Act (s A) as set out above, this would still permit issue to be included within the meaning of next of kin, for the purpose of s. 30 of the Wills and Probate Act. 42. Those provisions continue to contemplate that issue remain entitled to apply for administration of the estate of the deceased, notwithstanding the exclusion of issue from the definition of next of kin in the amendment to the Administration of Estates Act. 43. Yet, exclusive reliance on the definition of next of kin would preclude issue from applying for administration of the estate of their deceased father, while permitting such application by:- (a) the brothers and sisters of the deceased; (b) the issue of the grandparents of the deceased; (c) the brothers and sisters of a parent of the deceased; Page 17 of 22

18 (d) the issue of any brothers or sisters of the deceased, (where) the kindred of the half blood shall rank immediately after those of the whole blood of the same degree of kinship to the estate. 44. This inconsistency in relation to the definition of next of kin within the Wills and Probate Act and the Administration of Estates Act, (which are required to be read together), demonstrates that something has gone wrong with the drafting. The potentially irrational results that would be occasioned by exclusive reliance on the newly introduced definition of next of kin in the Administration of Estates Act, simply confirm the conclusion that something has gone wrong with the drafting. (iii) the substance of the provision Parliament would have made, had the error in the Bill been noticed; 45. Clearly an error in the definition of next of kin in the Distribution of Estates Act, (and now the Administration of Estates Act), has been established. 46. I am mindful of the caveat of the Privy Council in Ghany, inter alia that The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course, which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. See also paragraphs 15 and 35 in this regard. 7 7 [15] In following this approach the court will not simply mechanically apply these principles. Often the nature of the mistake, the extent of rewriting which would be required and other considerations relating to the particular context will have an important bearing on whether such a process of rectification by interpretation is legitimate. Lord Nicholls expressed this as follows: 'Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd v Schindler [1976] 2 All ER 393 at 404, [1977] Ch 1 at 18 Scarman LJ observed that the insertion must not be Page 18 of 22

19 47. In this case however it would not be judicial legislation to seek to purposively interpret and provide consistency and harmony between two apparently conflicting definitions of next of kin, with one having the potential to produce irrational results. 48. Unlike in Fazal Ghany, the effect of the amendment introduced by the Distribution of Estates Act is to create two potentially inconsistent definitions of next of kin one in the Administration of Estates Act, and one in the Wills and Probate Act, each of which, when applied to s. 30 of the Wills and Probate Act, could produce different results as to the class of person entitled to apply for administration of the estate of a deceased on intestacy. 49. In Fazal Ghany the Privy Council introduced 44 words from a different Act the Workmen s Compensation Act. In this case it is merely a choice between two inconsistent statutory versions of the definitions of next of kin. This case therefore is an even clearer one for reading, as though incorporated into the definition of next of kin in section 2 of the Administration of Estates Act (the definition section), additional words so as remove the inconsistency with s. 2 of the Wills and Probate Act and render it consistent with the remainder of that Act. This is because those additional words are already part of the existing statutory framework. too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation.' ([2000] 2 All ER 109 at 115, [2000] 1 WLR 586 at ) [35] It remains, however, to consider whether it is appropriate for a court to take the step of interpreting the statute in the manner contended for by the appellant. The governing considerations here are the proper scope of the judicial function and the danger of usurping the function of the legislature. This will inevitably be a matter for judgment in the circumstances of the individual case. The circumstances in which Lord Nicholls considered that a court may find itself inhibited from giving effect to what it is confident was the underlying intention of Parliament include an alteration in language which is too far-reaching or a context which calls for a strict interpretation of the statutory language. The latter consideration does not apply in the present case. As for the former, the question of how much rewriting would be too much must depend on the context of the particular case. Here, the reading for which the appellant contends would require the insertion of some 44 words from s 5(1)(c) of the WCA. However, given the context and, in particular, the nature of the error, this insertion would be far less drastic than its size alone might suggest. Page 19 of 22

20 50. The language required to harmonise section 2 of the Administration of Estates Act with sections 2 and 30 of the Wills and Probate Act and sections 23 and 24 of the Administration of Estates Act is nowhere nearly as extensive as in Ghany. The result can be readily achieved by the deletion of one word, and the insertion of three others so that the definition section would be read as follows:- next of kin INCLUDES means, in relation to a deceased person KIN AND (a) the brothers and sisters of the deceased; (b) the issue of the grandparents of the deceased; (c) the brothers and sisters of a parent of the deceased; (d) the issue of any brothers or sisters of the deceased, and the kindred of the half blood shall rank immediately after those of the whole blood of the same degree of kinship to the estate; 51. This construction is consistent with the existing statutes and statutory framework. It is not intended to engage in any exercise of judicial drafting. Rather, this is an exercise of statutory construction of two potentially inconsistent and divergent aspects of the same statutory regime. 52. I consider that this would be an appropriate case to read into the definition section of section 2 of the Administration of Estates Act the words indicated above. It falls within the category of case referred to in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 and satisfies the criteria in that case which permit this, for the reasons explained above. Page 20 of 22

21 Conclusion 53. The Respondent is entitled to apply for a Grant of Letters of Administration of the deceased s estate in her capacity as mother of the minor child of the deceased:- a. because as her natural mother, under the Family Law (Guardianship of Minors, Domicile and Maintenance) Act Chapter 46:08, she is the legal guardian of the minor; and b. because (i) under section 2 of the Wills and Probate Act next of kin means the person or persons entitled under an intestacy according to the provisions of the Administration of Estates Act, and (ii) under section 23 of the Administration of Estates Act persons entitled under an intestacy include both kin and next of kin. The minor, being issue of the deceased, falls within the definition of kin under section 2 of the Administration of Estates Act, and is thus entitled to his estate under his intestacy (s. 24(2) of the Administration of Estates Act). c. In so far as under section 30 of the Wills and Probate Act applications for administration may be made by the next of kin, in section 2 of that Act next of kin would also include the minor, as she is entitled under an intestacy. d. A purposive construction of the definition of next of kin in the Administration of Estates Act is both justified and required, given the absurd consequences that would otherwise follow. An exclusive reliance on the definition of next of kin in the Administration of Estates Act would prohibit issue of an intestate deceased, (defined as kin but not next of kin), from applying for Letters of Administration. However more distant relatives would be permitted to do so even in cases where those relatives could not be beneficiaries on an intestacy. Page 21 of 22

22 Order 54. In the circumstances the appeal is dismissed. Dated the 23rd day of May 2017 Peter A. Rajkumar Justice of Appeal. Page 22 of 22