222 / 264
GAZE1TE
DECEMBER1977
SUCCESSION ACT, 1965, — IMPORTANT
SUPREME COURT DECISION
Construction of 8.56(5) (b) Succession Act, 1965—Order
directing executor to appropriate dwellinghouse on farm
forming part of estate of deceased towards satisfaction of
legal right of widow of de c ea s ed—Onus of
proof—Applicant to satisfy Court that exercise of right of
appropriation is unlikely to diminish value of assets other
than dwelling or to make It more difficult to dispose of
them In due course of administration—Court to be
satisfied that
neither
of the specified eventualities Is likely
to happen—Meaning of words "value of the assets other
than dwelling"—Words mean
all
assets other than
dwelling.
H-V-H.
(Note:
As this case is of some considerable importance for
practitioners, the Supreme Court judgment of Parke J.
(concurred by Henchy J. and Griffin J.) is set out in full.)
Parke, J.
This is an appeal against so much of the order of
Kenny J. dated 10 of December 1974 as directed the
defendant as the executor to appropriate the
dwellinghouse on the farm which forms part of the estate
of the deceased towards the satisfaction of the legal right
of the widow of the deceased, in pursuance of an
application by her under s.56(5Xb) of the Succession Act,
1965.
The plaintiffs application for such an order is only one
of a number of disputes between the parties relating to the
administration of the deceased's estate and after the
hearing before Kenny J. the plaintiff in the present
proceedings instituted a partition suit in relation to the
lands forming part of the deceased's estate. Judgment in
that suit was delivered by McWilliam J. on the 12 of
January 1977 and we have been informed by counsel for
the defendant that it is his intention to appeal to this
Court from that judgment.
It is clear that no final order for the distribution of the
assets of the estate can be made until that appeal is
determined by this Court. This Court has, however, been
asked to determine the issues arising on the construction
of s.56(5Xb) so that the rights of the parties in this respect
may be ascertained.
Section 56(1) of the Succession Act 1965 provides:
"Where the estate of a deceased person includes a
dwelling in which, at the time of the deceased's
death, the surviving spouse was ordinarily resident,
the surviving spouse may, subject to sub-section (5),
require the personal representatives in writing to
appropriate the dwelling under section 55 in or
towards satisfaction of any share of the surviving
spouse."
Omitting sub-paragraph (a) of sub-section 5 (which is
not relevant to this appeal) the sub-section provides:
"A right conferred by this section shall not be
exercisable—(b) in relation to a dwelling in any
cases mentioned in sub-section (6) unless the Court,
on
application made by the personal
representatives or the surviving spouse, is satisfied
that the exercise of that right is unlikely to diminish
the value of the assets of the deceased, other than
the dwelling, or to make it more difficult to dispose
of them in due course of administration and
authorises its exercise".
It appears to me that this appeal raises three questions
on the construction of the paragraph.
The first relates to the onus of proof. The trial judge
held that the onus lies upon an applicant under the
paragraph to satisfy the Court that the exercise of the
right of appropriation is unlikely to diminish the value of
the assets of the deceased, other than the dwelling, or to
make it more difficult to dispose of them in due course of
administration. This finding was not challenged in
argument and appears to me to be clearly correct.
The second question is to ascertain the meaning of the
words "the value of the assets of the deceased, other than
the dwelling". The trial judge held that in a case such as
the present, where the spouse has exercised her legal right
to one half of the estate, these words are limited to the
value of the assets of the deceased, other than the
dwelling,
and other than those passing to the spouse.
I
cannot accept this as being correct. Such a construction
would not be in conformity with one of the fundamental
rules of interpretation i.e. that words may not be
interpolated into a statute unless it is absolutely necessary
to do so in order to render it intelligible or to prevent it
having an absurd or wholly unreasonable meaning or
effect. No such necessity arises here. The words of
paragraph (b) are clear and intelligible as they stand.
They refer plainly to
all
the assets of the deceased other
than the dwelling. The fact that the dwelling is the only
exclusion seems to me to remove any doubt which might
exist as to the comprehensiveness of the word "all". The
trial judge seems to have considered that he was bound to
construe the expression in the way in which he did
because he considered that any other construction would
render it impossible for any application under the
paragraph to succeed in respect of a residential
agricultural holding. This view is based upon the belief
which he expressed in his judgment that a residential
agricultural holding is invariably more valuable that a
non-residential agricultural holding. With the greatest
respect to the learned judge, I do not think that this is
necessarily so. The common experience of the courts
affords many examples to the contrary. A large, old and
dilapidated dwelling will frequently diminish the value of
the holding. In cases, common enough nowadays, where
there are two dwellings on a holding the exclusion of one
of them will probably enhance the value of what is left.
These and other examples were cited to us in argument
and reinforce the conclusion that it is not necessary to
interfere with the clear wording of the paragraph on the
grounds of avoiding an irrational meaning or effect. In my
view the words mean what they say, namely, all the assets
of the deceased other than the dwelling.
The third question which arises is as to the meaning
and effect of the word "or" which separates the
expressions "diminish the value of the assets of the
deceased, other than the dwelling," and "to make it more
difficult to dispose of them in due course of
administration". It was urged upon us very strongly by
counsel for the plaintiff that its effect is disjunctive. He
contended that an applicant under the section could
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