The Gazette 1977

DECEMBER1977

GAZE1TE

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 183