Supreme Court
Action No. 243 of 1983
26th July, 1984
Rajasingham, J.,Q.C.

Mr. M.C.E. Young for Administrators
Mr. L. Welch for Raymond Sebastian

Succession (Probate and Administration of Estates) - Construction of will - Constructing terms in a will as at the date of make - Meaning of 'next of kin' - Effect of status of Children Ordinance 1980 to dispositions made prior to its commencement.

J U D G M E N T

This is an application made by the Administrators Arthur Robert Hope and Raymond Barrow for a declaration that they now hold the Estate of Egbert Augustus Sebastian in trust for the children of Iris Barrow and Bernice Hope. Raymond Sebastian is the illegitimate son of Rodney Godfrey Sebastian, who was the illegitimate son of the testator Egbert Augustus Sebastian. Raymond Sebastian claims that on a proper interpretation of the will of Egbert Augustus Sebastian, he would be the person or one of the persons entitled to the estate.

The matter is made rather complicated by the fact that the will is worded most unscientifically and is confusing when read. The will is clear in so far as it gives Gladys Ethel Sebastian and Rodney Godfrey Sebastian, the illegitimate children of the testator, a life interest in the entire estate. It then goes on to say (quote).

"And after their death all the property of the said Egbert Augustus Sebastian shall be past over to the next of kin, and not be sold, but to be kept in repairs from the rent, and onto generation as the estate of Egbert Augustus Sebastian and that the said Gladys Ethel Sebastian and Rodney Godfrey Sebastian shall appoint two Executors out of any of the grandchildren they think fit of Mrs. Bernice Hope or children of Mrs. Iris Barrow" (unquote).

Mr. Welch submits that the "next of kin" referred to in this will are the next of kin of Gladys Ethel Sebastian and Rodney Godfrey Sebastian and hence includes his client. He submits that, although his client is illegitimate, since Rodney Godfrey Sebastian died in 1982 after the passing of the Status of Children Ordinance, 1980, his client would now qualify for equal treatment under such a provision with any legitimate children of Rodney Sebastian. Hence, he submits, it becomes important to ascertain whose next of kin the testator meant, his own or the next of kin of Gladys and Rodney Sebastian. Mr. Young submits that "next of kin" must be given its ordinary meaning and can only mean the brother and sister of the testator, who were his only legitimate next of kin.

I am afraid that, whatever interpretation is given to the words "next of kin" in this will, Mr. Welch's client's claim must fail for the reason that Section 4 of the Status of Children Ordinance, 1980, unequivocally states that "all dispositions made before the commencement of (this) Ordinance shall be governed by the enactment and rules of law which would have applied to them if (this) Ordinance had not been passed" (unquote). Therefore, even though Rodney Godfrey Sebastian died only in 1982, the interpretation of the words "next of kin" will have to be governed by the rules of interpretation applicable at the time of making of the disposition by Egbert Augustus Sebastian, namely November, 1942. Such an interpretation would not admit any illegitimate relationship. Hence the claim of Raymond Sebastian must fail - vide Rook v. A.G. (1862).

This does not dispose of this application however. The declaration sought from the Court will determine the beneficiaries under the will of Egbert Augustus Sebastian. What was the intention of the testator as ascertainable from his will?

Having given his illegitimate son and daughter a life interest over his entire estate other than the money lying to his credit, he then decrees that "after their death all the property …………shall be past over to the next of kin". I have underlined the crucial words that give us a first hint of his intentions. He refers to "their" deaths but only to "the" next of kin. This cannot be a grammatical error or a slip of the pen; there is nothing to indicate that it is. Let us next examine the rest of the will to see whether there is anything that confirms or contradicts this interpretation, namely that the next of kin referred to are the next of kin of the testator and not the next of kin of Gladys Ethel and Rodney Godfrey Sebastian. The will goes on to instruct the named Executors Gladys Ethel and Rodney Godfrey Sebastian to appoint two executors to succeed them and to appoint them to the exclusion of their own descendants; they are required to confine their choice to the grandchildren of Mrs. Bernice Hope or the children of Mrs. Iris Barrow. It seems inconceivable that the testator intended the next of kin of Gladys Ethel and Rodney Godfrey Sebastian to succeed to his estate but excluded them from being appointed executors of the said estate. While this does not necessarily rule out such an intention, it is certainly far more compatible with an intention to pass the property on to his own next of kin after the termination of the life interest of Gladys and Rodney Sebastian. It is therefore my considered opinion that the testator intended his estate to pass on to his own next of kin and not to the next of kin of Gladys Ethel and Rodney Godfrey Sebastian.

According to the affidavit filed in this case the next of kin of the testator are his brother Edwin Sebastian and his sister Iris Barrow. The estate of Egbert Augustus Sebastian passes, therefore, to his brother Edwin Sebastian and his sister Iris Barrow on the death of Rodney Godfrey Sebastian in May, 1982. It does not pass to Mrs. Bernice Hope, as she being the illegitimate daughter of Egbert Augustus Sebastian will not be a "next of kin" of the said Egbert Augustus Sebastian. The Administrators Arthur Robert Hope and Raymond Barrow hold the estate of Egbert Augustus Sebastian in trust for the testator's brother Edwin Sebastian and his sister Iris Barrow. There is nothing in the pleading to indicate whether Edwin Sebastian and Iris Barrow are alive. In the event that one or both of them are deceased, the Administrators will hold his or her share of the estate in trust for the estate of the deceased's beneficiary.

The costs of this application shall be paid from the income of the estate of Egbert Augustus Sebastian.

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