Under what circumstances is a person entitled to inherit from their deceased partner?

A few days ago thinheritance pic 1e Caribbean Court of Justice (“the CCJ”), Barbados’ final appellate court overturned the decision of the Barbados Court of Appeal in the Albert Anthony Selby v Katrina Smith case, thereby allowing the cohabiting partner of the deceased to inherit from him.

In February of this year, the Court of Appeal delivered its judgment in that case and decided against the deceased’s partner, Katrina Smith (“Ms. Smith”). The matter arose because both the deceased’s brother and Ms. Smith, applied for letters of Administration of the deceased’s estate.

The Succession Act Cap. 249 of the Laws of Barbados (‘the Act”) sets out the line of priority for those who may inherit from a person who died without leaving a will. In essence, the line of priority is as follows: the spouse and children of the deceased, the deceased’s parents, then his siblings.

The deceased was unmarried at the date of his death, he had no children and his parents died before him. Ordinarily, next in line to benefit from his estate would be his brothers and sisters. However, the deceased was living with a single woman, Ms. Smith, immediately preceding his death. Notably, section 2(3) (a) and (b) of the Act provides that

“For the purposes of this Act, reference to a “spouse” includes: (a) a single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death;

 (b) a single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.”

The deceased was married for a portion of the five year period that he was living with Ms. Smith. The CCJ, like the Court of Appeal disagreed with the trial judge that the meaning of single included a married man who was separated from his wife.

However, the five-judge panel, presided over by the President of the CCJ, the Right Honourable Sir Dennis Byron, concluded that “the assessment of marital status for the purpose of rights under the Act is made immediately preceding the death of the deceased”. Consequently, Ms. Smith has the right to inherit from the deceased as his spouse since he was single immediately preceding his death and since she lived with him as his wife for at least five years immediately preceding his death; notwithstanding that he was not single for that entire five year period.

                                                                                                     – Kara-Je Kellman

Advertisements

Do you qualify as a spouse? Lessons from Albert Selby v Katrina Smith

court picThe deceased, Albert Selby, died without leaving a will and thus his estate is to be dealt with according to the Succession Act and the rules of intestacy which give priority to the deceased’s spouse, children then parents then siblings then nephews and nieces. The deceased was divorced, had no children and his parents died before him. The parties in the Albert Anthony Peter Selby v Katrina Smith [unreported] C.A. B’dos Civil Appeal No 14 of 2010; 2017-02-14 case are the brother of the deceased man and an unmarried woman with whom the deceased was cohabiting up until his death.

At the center of the case is the Succession Act of Barbados, particularly Section 2 which speaks to who is considered a spouse under the Act. Section 2 (3) and (4) of the Succession Act states

(3) For the purpose 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 5 years immediately preceding the date of his death;
  • A single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.

(4) For the purposes of subsection 3, a reference to a single woman or a single man includes a reference to a widow or widower or to a woman or to a man who is divorced.

One of the two issues which the High Court was asked to determine was whether Ms. Smith is capable of being regarded in law as the deceased’s “spouse” for the purposes of the Succession Act, given that the deceased was a married man during a part of the five year period immediately preceding the date of his death. The High Court decided in favour of Ms. Smith and the deceased’s brother appealed to the Court of Appeal.

The deceased having been married at the start of the cohabitation with Ms. Smith and for a part of the 5 years immediately preceding his death, the issue which the Court of Appeal had to determine was who constitutes a single person for the purposes of Section 2 of the Succession Act.

The Court of Appeal handed down its decision last month and held that Mr. Selby though separated but not divorced from his wife for the requisite period of not less than five years immediately preceding the date of his death cannot be considered as single. The consequence of the Court of Appeal’s decision is that Ms. Smith, who regarded herself as Mr. Selby’s partner for several years cannot benefit from his estate on intestacy since she does not qualify as his spouse.

                                                                                                           – Kara-Je Kellman

Click here to see the article ‘Under what circumstances is a person entitled to inherit from their deceased partner?’

Unfair Dismissal Under The Employment Rights Act of Barbados

unfair-dismissal-picThe Employment Rights Act (“the Act”) gives an employee who has been continuously employed for at least one year, the right not to be unfairly dismissed. However, the Act also gives an employer the right to dismiss an employee for certain reasons under Section 29 of the Act or for some other substantial reason of a nature such as to justify the dismissal of the employee. Section 29 allows for the dismissal of an employee for reasons relating to the capability of the employee to do the work he was employed to do, the conduct of the employee or where the employee was redundant but subject to Section 31.

However, before dismissing an employee for a reason relating to his conduct or capability, the employer must inform the employee of the accusation against him and allow him an opportunity to state his case.

Whether or not the dismissal was unfair depends on whether the employer acted reasonably or unreasonably in treating the reason as a sufficient cause for dismissing the employee and whether the employer complied with the rules set out in Part A of the Fourth Schedule. These rules include but are not limited to the following: an employee must not be dismissed for his first breach of discipline unless it is gross misconduct; where a breach of discipline does not amount to gross misconduct, the employee should be warned and given a reasonable opportunity to make a correction before more stringent disciplinary action is taken.

The Act provides for many instances where an employee may be deemed to be unfairly dismissed. Some examples of these instances are: if the reason for the dismissal relates to his race, colour, gender, age, marital status, religion, political opinion or affiliation, national extraction, social origin or indigenous origin; if the reason for the dismissal is that: he refused to carry out an unlawful instruction from the employer;   he participated in trade union activities outside, or with the permission of the employer during, working hours; the employee is or was a disabled person in circumstances where the employer could reasonably have been expected to offer the employee alternative employment.

Where it is found that an employee was unfairly dismissed, the Employment Rights Tribunal which was established under the Act, has the power to order the reinstatement or re-engagement of the employee where the appropriate circumstances exist or to make an award of compensation. If either party is dissatisfied with the decision of the Tribunal, that party may appeal to the Court of Appeal.

                                                                                                                                          – Kara-Je Kellman

What Shanique Myrie v The State of Barbados Teaches Us About The Award of Damages Under The Revised Treaty of Chaguaramas Regime

damages pic 1

Shanique Myrie, a Jamaican national, had claimed that prior to deportation from Barbados to Jamaica in 2011, she was subjected to a body cavity search and detained in an unsanitary cell overnight. She had also claimed that she was discriminated against on the basis of her nationality. As a result, she asked the Caribbean Court of Justice (“the Court”) to make an Order for Barbados to pay special and punitive damages and an Order for the recovery of all her legal costs. The Court considered the matter applying the Revised Treaty of Chaguaramas (“the RTC”) and a 2007 Decision of the Heads of Government of CARICOM.

According to the Court, in order for a claim for damages to succeed, the Claimant must show that the RTC provision breached was intended to benefit her, the breach must be a serious one, the damages or loss should be substantial and there should be a causal link between the breach by the State and the loss or damages claimed.

The Court stated that under the RTC regime, the damages that can be awarded by the Court are compensatory. There is no place for exemplary or punitive damages before the Court in its original jurisdiction. The Court referred to the case of Trinidad Cement Limited TCL Guyana Incorporated v. The State of the Co-operative Republic of Guyana [2009] CCJ 1 (OJ) where this principle was established. The reason behind this is, the civil law jurisdictions in the Community do not allow for the award of exemplary damages and therefore this remedy cannot be a part of a legal structure that embraces both traditions.

The compensatory damages that can be awarded in international law are those for pecuniary loss or damage and non-pecuniary loss or damage. Pecuniary loss or damage means that such loss or damage can be calculated in terms of dollars and cents.  For example, you may claim that your bag which you bought for S50.00 was destroyed and therefore ask to be compensated $50.00 for the loss and damage. It follows that non-pecuniary loss or damage cannot be quantified in monetary terms. This type of compensation is usually for mental suffering, injury to feelings, humiliation, degradation, loss of social position or damage to reputation.

The Claimant claimed the sum of JA $112,000.00 for the airline ticket and medical expenses. This amount was not challenged by Barbados and the Court held that she was entitled to that amount for pecuniary damages.

The Court was of the view that the body cavity search and the conditions of her overnight detention constituted a very serious breach of her right to enter Barbados free of hassle and harassment. The Court then sought to determine whether this treatment was sufficiently related to the exercise of her right of entry. The Court found that the breach of the right encompassed all that took place at the airport in Barbados between the time of her arrival there and her deportation the following day.

The Court pointed out that it was not awarding damages for human or fundamental rights breaches; neither was it seeking to create an appropriate remedy for assault or unlawful detention since these are not causes of action actionable before the Court in its original jurisdiction. The Court stated that it was instead awarding damages for breach of the right to enter Community States without harassment and hassle. The Court was of the view that there must be a high award of damages for the breach since it was accompanied by serious circumstances.

Consequently, the Court ordered the State of Barbados to pay the Claimant Bds $2,240.00 (JA $112,000.00) for pecuniary damages and Bds $75,000.00 for non-pecuniary damages. The Court also ordered the State of Barbados to pay the Claimant’s legal costs.

                                                                                                                                         – Kara-Je Kellman

What were Barrow & Williams Thinking?

errol barrow and eric williamsBarbadians are warming to the idea that they should participate continually in decision making in their country when traditionally they have felt that their duty was to vote every five years and then go about their own business.

H.E. Errol W. Barrow & Dr. Eric E. Williams

There are many extra-constitutional means of doing this such as communicating with your Member of Parliament staging demonstrations, taking strike action, engaging in letter writing campaigns and sit-ins. Demonstrations and strike action are perhaps the tools most often used in Barbados.

Governments and some Ministers do take the engagement of the public seriously and would invite them to consult before developing and implementing any major policy initiative. This of course depends very much upon the temperament of the Minister, there being no legal requirement to consult.

Call for greater participation

Barbadians have made lukewarm calls for referenda on issues such as decoupling of Barbados from the United Kingdom. They have also suggested that they should be able to re-call parliamentarians.

Those who know how easy it is to manipulate political outcomes by those who have the greatest access to money have been skeptical. There is no doubt that an individual who had managed to win a seat could be unseated through recall by those within his or her own party or the opposition party through bribing the electors.

No provisions for referenda

All CARICOM countries currently have provisions for referenda in their Independence Constitutions except for Barbados and Trinidad & Tobago. Belize passed a Referendum Act in 1999.

Referenda experience

On June 23rd 2016 Barbadians saw a referendum play out before them in the United Kingdom where through a simple majority (52% to 48%) the people of the UK voted to leave the European Union.

This reflects the power of the media since the referendum in St. Vincent and the Grenadines did not engage Barbadians in the same manner.

Arnhim Eustace & Dr. Ralph Gonsalves

A constitutional referendum was held in Saint Vincent and the Grenadines on November 25th 2009.Voters were asked whether they approved of a new Constitution which would have replaced the Constitution in force since independence in 1979.The proposal included removal of the Queen of England as Head of State and the adoption of the Caribbean Court of Justice as the final court of appeal for that country. It was supported by only 43.13% of voters in the referendum, well short of the required two-thirds threshold.

In the Vincentian process a broad-based body had been established by the Government, Opposition and the Social Partners, however by the date of the vote commentators expressed the view that the process had been hijacked by partisan political interests.

Can we get it right?

drAlexisDr. Francis Alexis Q.C. in Changing Caribbean Constitutions expresses his views on referenda thus:

To be successful, a referendum for constitutional change requires that there be national consensus on proposed changes. So there has to be astute patriotic statesmanship on the part of leading opinion shapers, especially on the part of both Government and Opposition. The process might be helped if the people have choices    among separate bills; rather than being presented with a separate bill which leaves no room for choices. [1]

Dr. Francis Alexis Q.C.

Did the UK meet the standard

This is a standard which clearly was not met in the United Kingdom starting with the £350 million pounds which would not be available to the National Health Scheme. Constitutional lawyer at the University of Liverpool Professor Michael Dougan described the Leave Campaign as dishonesty on an industrial scale. And he provides examples.

Leavers had argued that EU legislation was adopted by the unelected commission which is untrue. Professor Dougan explained that all of it is adopted by the council which is represented by the elected governments. No doubt used as a scare tactic voters were told that there was a plan in the EU to create a European army which would absorb the UK army against the will of UK citizens. The Constitutional lawyer pointed out that A common European defence policy would require approval at the domestic level within the UK parliaments. Here is the full presentation:

MichaelDougan-1w

Professor Michael Dougan

https://www.facebook.com/UniversityofLiverpool/videos/1304633102897424/?pnref=story

Professor Dougan ultimately described that systematic dishonesty was used as a primary tool to win votes and as such has done untold damage to the British democracy. And he is right.

Can Barbados meet the standard?

Well what would one say about the Barbados democracy?

Barbadians are used to hearing lies from the political platform and no one seems outraged by them. They seem to accept that this is the nature of politics. It however creates apathy and disillusionment especially when the lies seem to come from both sides.

In order for the people to determine how they should vote in a referendum they must understand fully the implications of their vote. How many people actually understand how CARICOM works just as one might ask how many people understood how the EU works?

How many people understand functional cooperation and the carve outs negotiated internationally based on a single market?

Yet individuals frequently say that CARICOM is a waste of time without actually knowing.

It is accepted that members of the public whose main objective is to keep their household going would not have the time to read and internalize the Treaty of Chaguaramas as well as the various decisions of the organs of CARICOM.

We can do better

This is why Dr. Alexis’ statement is so critical. The integrity of the opinion shapers is critical.

Unless the individuals leading the campaigns are going to be honest then a referendum vote by an informed electorate would be almost impossible.

Given our history of “corned beef and biscuit” and “roti and rum” politics it would be difficult for Barbados and Trinidad & Tobago to ever reach that standard, even though  bribing electors is in breach of the election legislation.

Perhaps this is what HE Errol W. Barrow and Dr. Eric E. Williams understood when finalising the provisions of the Barbados and Trinidad & Tobago constitutions.

However theirs was a young democracy. CARICOM must work towards a more engaged and more informed electorate as our democracies mature.

Barbados celebrates 50 years of independence on November 30th, 2016.

[1] Alexis, Francis, Changing Caribbean Constitutions at paragraph 3.79

Lynette Eastmond

You Can Be Lawfully Arrested Without A Warrant

At common law, both ordinary citizens as well as police officers have the power to arrest, without a warrant, a person who has breached the peace or who is about to breach the peace. The power of the police to arrest without a warrant is amplified by statute. Thus, the police have a wider power to arrest a person without a warrant.

The House of Lords in Albert v Lavin [1981] 3 All ER 878 held ‘that every citizen, whether a police officer or not, in whose presence a breach of the peace was being, or reasonably appeared to be about to be, committed had the right to take reasonable steps to make the person who was breaking or threatening to break the peace refrain from doing so and that those reasonable steps in appropriate cases would include detaining him against his will’.

The Police Act Cap. 167 of the Laws of Barbados (‘The Act’) at sections 19(b) and 20(1) permits members of the Police Force to make arrests without warrants. The latter section also sets out the circumstances under which police officers may lawfully arrest persons without a warrant.  Listed below are examples of such circumstances. According to section 21 of the Act, a member of the Royal Barbados Police Force may lawfully arrest:

  • ‘any person whom he suspects upon reasonable grounds of having committed an arrestable offence’;
  • ‘any person who commits a breach of the peace in his presence’;
  • ‘any person who obstructs or assaults a member of the Force while in the execution of his duty or who has escaped or attempts to escape from lawful custody’;
  • ‘any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing’;
  • ‘any person whom he finds lying or loitering in any highway, yard or other place between the hours of eight o’clock in the evening and five o’clock in the morning and not giving a satisfactory account of himself’;
  • ‘any person whom he has reasonable cause to suspect has committed any offence rendering him liable to arrest without warrant’.

It is therefore lawful for a citizen or police officer to arrest a person without a warrant, according to common law. Further, according to the Police Act, members of the police force may exercise their extended power to arrest persons without a warrant, where any of the circumstances provided by the Act are present.

                                                                                                                                             – Kara-Je Kellman

Bail In Barbados – Did You Know?

jailIn Barbados, a person charged with an offence or convicted of an offence is entitled to bail, subject to the Bail Act Cap. 122A (“the Act”). The fundamental test in determining whether to grant bail is whether the accused will return to court for the determination of the matter. The Court also takes into account other factors when exercising its power to grant bail or not to grant bail.

According to Section 5 (2) of the Act, the Court must take into consideration relevant factors including the following:

(a) “the nature and seriousness of the offence or default, and the probable method of dealing with the defendant for it;

(b) the character, antecedents, associations and community ties of the defendant;

(c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail;

(d) the strength of the evidence of his having committed the offence or having defaulted, except where the defendant’s case is adjourned for inquiries or a report; and

(e) the length of time the defendant would spend in custody if the court were to exercise the power conferred on it by section 218A of the Magistrate’s Courts Act” (power to remand the defendant in custody).

According to Section 5 (1) of the Act, the Court may refuse to grant an accused person bail if it believes that the accused person would fail to surrender to custody; reoffend or interfere with witnesses. Further, the Court may not grant bail if it is satisfied that the accused should be kept in custody for his own protection; for the protection of the community or if he is a child or young person, for his own welfare. The Court may also deny to grant bail to a person who is charged with an offence alleged to have been committed while on bail.

The Court may grant bail with conditions. The Court may, before releasing the defendant, require him to provide a surety to ensure his surrender to custody. Further, the Court may require a defendant to surrender his passport, report to a police station on appointed days and at appointed times, order the defendant to comply with any requirement to ensure that: the defendant surrenders to custody, does not commit an offence while on bail, does not interfere with witnesses or otherwise obstruct the course of justice or, makes himself available for the purpose of enabling inquiries or a report of any medical examination to be made to assist the court in dealing with him for the offence. If a defendant who is on bail fails to surrender to custody, the Court may issue a warrant for his arrest.

It is important to note that a magistrate does not have the power to grant bail to a person accused of murder, treason, high treason or an indictable offence under the Firearms Act. A person accused of the above offences may only be granted bail by a High Court Judge.

Where bail is denied, the defendant may reapply for bail at the Magistrate’s Court and may also apply for bail at the High Court. If the Court does not grant bail to a person who has been charged with an offence punishable by imprisonment, the accused person will be remanded until the determination of his case or until bail is subsequently applied for and granted.

                                                                                                                                            -Kara-Je Kellman

Domestic Violence: Men Can Be Victims Too!

stopdomesticviolenceTraditionally, women were seen as the victims of domestic violence and men were viewed as the perpetrators of such violence. However, it should be recognized and accepted that both men and women can be victims of domestic abuse. Recently in Barbados, the legislature amended the Domestic Violence (Protection Orders) Act, Cap. 130A (‘the principal Act’) to make provision for a comprehensive definition of the term domestic violence; to extend the classes of persons who are considered to be victims of domestic violence, among other things. The recently passed Domestic Violence (Protection Orders) (Amendment) Act, 2016 (‘the 2016 Act’) reforms the law on domestic violence and reflects the realities of a modern society by maintaining the use of gender neutral language.

The gender neutral language is notable in the given definitions of important terms. In the 2016 Act, victim is defined as “a person against whom an act of domestic violence is committed and includes a child”, and perpetrator is defined as “a person who commits an act of domestic violence”.

Previously, the principal Act did not define “domestic violence” or “domestic relationship”. The 2016 Act inserts the following definition of domestic violence: “the wilful infliction or threat of infliction of harm by one person in a domestic relationship upon another person in that relationship and includes child abuse, emotional abuse, financial abuse, physical abuse and sexual abuse”.

The 2016 Act defines “domestic relationship” as “the relationship between a perpetrator of domestic violence and victim who is a spouse, former spouse, child, dependant or other person who is considered to be a relative of the perpetrator by virtue of consanguinity or affinity and includes cohabitational and visiting relationships”.

Some men complain that police officers do not take seriously men’s complaints of domestic violence. Section 11A (1) of the principal Act as amended by the 2016 Act now provides that “a member of the Police Force shall respond to every complaint alleging domestic violence”. Men who allege that they are victims of domestic violence may therefore find solace in this provision.

Both men and women should note that, as mentioned above, the 2016 Act makes clear that domestic violence is not limited to physical or sexual abuse but extends to emotional abuse and financial abuse. The 2016 Act defines the above categories of domestic violence as follows:

  • Physical abuse means “any act or omission by a perpetrator which causes pain or injury to the body of a victim”;
  • Sexual abuse means “the performance by a perpetrator of a sexual act on a victim by the use of force, threats, fear, manipulation or guile and includes the actual or attempted commission of any of the offences stated in Part I of the Sexual Offences Act, Cap. 154”. The offences under Part I of the Sexual Offences Act include, among other things, rape, incest, buggery, indecent assault and serious indecency.
  • Emotional abuse means “any act by a perpetrator which causes psychological pain or injury to a victim and includes harassment, the use of threatening words or behaviour and withholding from a victim, access to the victim’s child, parent or guardian”;
  • Financial abuse means “the exercise of control by a perpetrator over a victim’s access to financial resources through coercion, deception or intimidation, the effect of which is to hinder the victim’s financial independence or ability to maintain a child or dependant or to ensure financial dependence on the perpetrator and includes exploitation of the victim’s financial resources and withholding the financial support necessary to maintain a victim, child or dependant”.

This piece of reformatory legislation is expected to aid members of the society to accept that men can also be victims of domestic abuse and assist in combatting the scourge of domestic violence.

 

                                -Kara-Je Kellman