IN THE ESTATE OF B 27-October-1999
[1999 CILR 460]
IN THE ESTATE OF B
GRAND COURT (Murphy, J.): October 27th, 1999
Succession—intestacy—rights of illegitimate children—under Succession Law (1995 Revision), s.35(3) no claim against father’s estate on intestacy unless deceased adjudged father by affiliation order—court’s acceptance of unchallenged evidence of paternity insufficient
    The applicants applied for a ruling that they were entitled to claim against their father’s estate upon his death intestate.
    The two applicants were the illegitimate children of the deceased. The deceased was also the father of two other legitimate children, by the respondent, his wife and administrator of his estate. By s.35(3) of the Succession Law (1995 Revision), an illegitimate child who had been adjudged by an affiliation order to be the child of his natural father was entitled to the interest in his father’s estate to which he would have been entitled had he been legitimate. No affiliation proceedings had taken place to establish legally the paternity of the applicants, but it was not challenged and the court accepted the affidavit evidence of the applicants’ mother.
    The applicants submitted that (a) they were entitled to share in the estate by virtue of s.35(3), notwithstanding that no affiliation order had been made, since the court had made an adjudication of paternity upon the affidavit evidence in the present proceedings; (b) the sub-section should be construed so as to avoid injustice to illegitimate children who had been voluntarily acknowledged and provided for by their natural fathers during their lives, whilst favouring those whose fathers had been forced by affiliation proceedings to acknowledge them, or who claimed upon the death of their mothers; and (c) alternatively, s.35(3) did not apply if there had been no affiliation proceedings, and the court should therefore take the approach demonstrated by other Cayman statutes, in which the word “child” expressly included an illegitimate child, and with which the Succession Law (1995 Revision) was in pari materia.
    The respondent submitted in reply that (a) in the absence of an affiliation order, the applicants were not entitled to an interest in their natural father’s estate, since the words of s.35(3) were clear, and any injustice caused was a matter for the legislature, not the court; (b) moreover, there was no general legislation in force in the Cayman Islands similar to that in England requiring equal treatment of legitimate and illegitimate children of either parent; and (c) since legislation concerning the welfare and custody of children was not in pari materia with that dealing with property rights, the express provisions of the statutes, cited
1999 CILR 461
by the applicants, which equated the treatment of legitimate and illigitimate children, were irrelevant.
    Held, making the following ruling:
    Since there had been no affiliation order made during the deceased’s lifetime in respect of the applicants, they did not qualify for a share in his estate upon intestacy. Section 35(3) of the Succession Law (1995 Revision) was clear and unambiguous and the court was bound to construe it according to its plain meaning without regard to any injustice which might result. There was no general statutory provision in force in the Cayman Islands reversing the presumption that an illegitimate child could not inherit upon the intestacy of its father, or affecting the construction of relevant legislation. Section 35 had been enacted with the intention of modifying the common law position, and the legislature had not taken the opportunity, when later introducing sub-s. (3), to equate the position of children of unmarried fathers to that of children of unmarried mothers. Similarly, as different considerations applied when dealing with property rights (as here) to those in issue when deciding upon the welfare and protection of children, other Cayman statutes cited by the applicants were not in pari materia with the Succession Law, and could have no bearing on the interpretation of s.35(3) even if its meaning were not plain (page 464, line 28 – page 465, line 18; page 465, line 39 – page 466, line 10; page 466, line 22 – page 467, line 41).
Cases cited:
(1)      McLean v. McLean, 1988–89 CILR N–14, considered.
(2)      Makein, In re, Makein v. Makein, [1955] Ch. 194; [1955] 1 All E.R. 57.
(3)      Minister of Home Affairs v. Fisher, [1980] A.C. 319; [1979] 3 All E.R. 21.
(4)      RHB Trust Co. Ltd. v. Butlin, 1992–93 CILR 219, followed.
(5)      Sydall v. Castings Ltd., [1967] 1 Q.B. 302; [1966] 3 All E.R. 770, dicta of Russell, L.J. applied.
(6)      Watson-Morgan v. Grant, 1990–91 CILR 81, observations of Zacca, P. applied.
(7)      Woolwich Union Guardians v. Fulham Guardians, [1906] 2 K.B. 240; (1906), 22 T.L.R. 579.
Legislation construed:
Affiliation Law, 1973 (Law 10 of 1973).
Guardianship and Custody of Children Law (1996 Revision) (Laws of the Cayman Islands, 1963, cap. 65, revised 1996), s.2: The relevant terms of this section are set out at page 465, line 26.
s.17: The relevant terms of this section are set out at page 465, lines 30–31.
Property (Miscellaneous Provisions) Law, 1994 (Law 7 of 1994), s.4: The relevant terms of this section are set out at page 466, lines 15–17.
1999 CILR 462
Succession Law (1995 Revision) (Law 18 of 1975, revised 1995), s.35(1): The relevant terms of this sub-section are set out at page 463, lines 14–18.
s.35(2): The relevant terms of this sub-section are set out at page 463, lines 19–23.
s.35(3): The relevant terms of this sub-section are set out at page 463, lines 24–30.
s.35(4): The relevant terms of this sub-section are set out at page 463, lines 31–38.
Family Law Reform Act 1987 (c.42), s.1(1):
    “In this Act and enactments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them … have or had been married to each other at any time.”
J.H. Furniss for the applicants;
S.A. Roy and Ms. G.M. Berry for the respondents.

20              MURPHY, J.: This is a proceeding commenced by originating  
      summons on behalf of two illegitimate children claiming rights arising  
      upon the intestacy of their deceased natural father. 
              The named respondent is B’s lawful wife, who was in fact one of two  
      administrators of B’s estate named in P & A Cause No. 74 of 1998. Those  
25      having an undisputed interest in B’s estate are his wife and two legitimate  
      children of that marriage. There are two other illegitimate children, the  
      issue of B and another woman who never married. 
              Sadly, the estate is very modest and, after the wife’s undisputed share,  
      the amount left for the children, whether two or four of them, will be  
30      quite small. None the less, the issue is of importance to all concerned. It is  
      also important to the law of this jurisdiction, as the issue of whether  
      illegitimate children can share on an intestacy in circumstances such as  
      these does not, surprisingly, seem to have come before the courts before. 
              The issue of fact as to whether B was the applicants’ father was not  
35      contested by the legitimate children, but neither was it conceded by them.  
      I find their paternity as a fact, based on the unchallenged affidavit  
      evidence of the natural mother. That now leads to the purely legal issue of  
      whether the applicants can inherit on B’s intestacy. 
              There is no dispute that at common law illegitimate children will not  
40      inherit on an intestacy: see Sherrin & Bonehill, The Law & Practice of  
      Intestate Succession, 2nd ed., at 180–182 (1994), citing In re Makein (2);  
      and Woolwich Union Guardians v. Fulham Guardians (7). See also RHB  
      Trust Co. Ltd. v. Butlin (4), citing the Privy Council case of Minister of  
      Home Affairs v. Fisher (3), in which the following is found in the opinion  
45      of Lord Wilberforce ([1980] A.C. at 328): 
1999 CILR 463

                      “In matters of succession, and the same applies to the interpre 
          tation of wills and trust Instruments (see Sydall v. Castings Ltd. …),  
          the rule that ‘child’ means legitimate child is firmly rooted in the  
          common law and in the sources of the laws of property, so it has  
5          always been insisted that clear words are needed if illegitimate, or  
          adopted, children are to be treated in the same way as legitimate  
          children. Instances of such clear words are becoming more frequent  
          in modern legislation. But even without such clear words in a  
          statute, a movement towards the biological interpretation of the  
10          word ‘child,’ even in this context, is appearing ….” 
          If the applicants are to succeed, they must avail themselves of statutory  
      assistance. The issue essentially revolves around the provisions of s.35 of  
      the Succession Law (1995 Revision) which I reproduce here: 
                      “(1) Where the mother of an illegitimate child, such not being a  
15          legitimated person, dies intestate as respects all or any of her  
          property, the illegitimate child, or if he is dead, his issue, shall be  
          entitled to take any interest therein to which he or such issue, would  
          have been entitled if he had been born legitimate. 
                      (2) Where an illegitimate child, not being a legitimated person,  
20          dies intestate in respect of all or any of his property, his mother, if  
          surviving shall be entitled to any interest therein to which she would  
          have been entitled if the child had been born legitimate and she had  
          been the only surviving parent. 
                      (3) Where the father of an illegitimate child, not being a legiti 
25          mated person, who has been adjudged as such by an affiliation order  
          made under the Affiliation Law, 1973 or any other law relating to  
          affiliation previously in force in the Islands, dies intestate as respects  
          all or any of his property, the illegitimate child, or if he is dead, his  
          issue, shall be entitled to take any interest therein to which he or  
30          such issue would have been entitled if he had been born legitimate. 
                      (4) Where an illegitimate child, not being a legitimated person,  
          whose mother has predeceased him, dies intestate in respect of any  
          or all of his property, his father, if he has been adjudged as such by  
          an affiliation order made under the Affiliation Law, 1973 or any  
35          other law relating to affiliation previously in force in the Islands, and  
          if surviving, shall be entitled to any interest therein to which he  
          would have been entitled if the child had been born legitimate and  
          he had been the only surviving parent.” 
          The central focus of the applicants is sub-s. (3). Curiously, sub-ss. (3) and  
40      (4) were only added to the pre-existing sub-ss. (1) and (2) in 1983, by s.3  
      of the Succession (Amendment) Law, 1983. 
              Subsection (1) allows an illegitimate child to take, without restriction,  
      upon the intestacy of his mother. Scenarios involving unwed mothers  
      seem to have been treated quite differently in statute law than scenarios  
45      involving fathers of illegitimate children. 
1999 CILR 464

              That was true, historically, in England. The prima facie rule at  
      common law before the enactment of the English Family Law Reform  
      Act 1969 was that an illegitimate child had no entitlement on the death  
      intestate of its parent and likewise the parent had no entitlement on the  
5      death intestate of the child. However, even before 1969 the strict  
      application of this rule had been modified by statute. The provision in s.9  
      of the Legitimacy Act 1926 applied where the mother of an illegitimate  
      child died intestate and did not leave any legitimate surviving issue, in  
      which case the illegitimate child (or, if he was dead, his issue) was  
10      entitled to take the interest to which he would have been entitled if he had  
      been born legitimate. Similarly, where the illegitimate child died  
      intestate, the mother had rights of entitlement as if the child had been  
      born legitimate and she had been the only surviving parent. The  
      provisions only applied to a mother and her child, and then only in the  
15      absence of legitimate issue. 
              Section 9 of the 1926 Act was repealed by s.14(7) of the Family Law  
      Reform Act 1969 in respect of deaths after January 1st, 1970 and the  
      wider provisions of that Act governed the situation. The reforms  
      embodied in the Family Law Reform Act 1969 were based on the  
20      recommendations of the Report of the Committee on the Law of  
      Succession in relation to Illegitimate Persons (“the Russell Committee”).  
      The Committee recommended that for the purpose of intestate  
      succession, there should be no distinction between a woman’s legitimate  
      and illegitimate children and that a similar right of succession should  
25      apply to a man’s illegitimate children. (For a full exposition of the  
      English legislative history, see Tristram & Coote’s Probate Practice, 28th  
      ed., paras. 6.45–6.53, at 212–214 (1995).) 
              The factual situation before me would pose no difficulty whatsoever in  
      a regime subject to the clear provisions of the current English legislation,  
30      and in particular s.1 of the English Family Law Reform Act 1987. The  
      statutory picture is not as clear in the Cayman Islands, however. Mr.  
      Furniss frankly concedes that he cannot succeed unless s.35(3) of the  
      Succession Law (1995 Revision) can be interpreted in such a way as to  
      include the intestate B as “the father of an illegitimate child … who has  
35      been adjudged as such by an affiliation order ….” That did not happen.  
      There were never any affiliation proceedings. 
              On the face of it, it seems unfair that an illegitimate child may only  
      take in a scenario in which a putative father had been subjected to  
      affiliation proceedings in the Summary Court, but not where a natural  
40      father—as here, perhaps—acknowledged paternity and supported his  
      children voluntarily. Mr. Furniss accordingly argued for a broad interpre 
      tation that would stress “adjudication” of paternity, such as the one I have  
      made on affidavit evidence herein, rather than a narrow one that would  
      focus solely upon affiliation proceedings. That might make practical  
45      sense and do justice, but it also does violence to the words used in 
1999 CILR 465

      sub-s. (3). Nor can the words or punctuation of the sub-section bear Mr.  
      Furniss’s alternative interpretation that the section applies unless there  
      have been affiliation proceedings. The words seem clear to me and I am  
      obliged to apply the maxim expressio unius est exclusio alterius with the  
5      result that only the class of fathers of illegitimate children described in  
      sub-s. (3)—those against whom an affiliation order has been made—are  
      those whose estate can pass to illegitimate children on intestacy. 
              The fact that such a broad exclusion might seem to some illogical or  
      irrational is an irrelevant consideration when the words are clear.  
10      However, it might well be argued that the following legislative intent or  
      public policy purpose can be discerned from the provision: either (i)  
      rights on intestacy were only to be available where a natural father was  
      legally obliged to support the illegitimate child, and/or (ii) participation in  
      the estate could only occur after a full formal inquiry into paternity of the  
15      kind envisaged by the Affiliation Law, which clearly contemplates the  
      right of participation by the putative father himself and which would not  
      be possible after his death. Mr. Roy argues for the latter objective process,  
      lest administrators be placed in difficult positions of inquiry. 
              In this regard it is instructive to examine the judgment of Zacca, P. in  
20      Watson-Morgan v. Grant (6). There, the majority held that the relevant  
      custody provisions of the Guardianship and Custody of Children Law  
      (Revised), in force at the time, were not intended to apply to the custody  
      of an illegitimate child and the court had no jurisdiction under the Law to  
      entertain an application by the putative father for such custody. The  
25      legislation was subsequently amended as a result of this decision to make  
      it clear that “‘child’ … includes an illegitimate child.” 
              It is significant that in the judgment of Zacca, P. the affiliation scenario  
      is addressed. For purposes of other provisions of the Law then under  
      consideration, a “parent” of a child was defined (as it is now under s.17 of  
30      the 1996 Revision) to include “any person at law liable to maintain such  
      child ….” Zacca, P. was of the view (1990–91 CILR at 85) that this  
      could encompass the affiliation situation so that the obligation in that part  
      of the guardianship statute would thus “include the father of an  
      illegitimate child as a parent if he has been adjudged by the court to be  
35      the putative father.” However, Zacca, P. reasoned (ibid., at 96–97), that  
      did not mean that the statute embraced illegitimate children in other  
      scenarios, such as custody. In other words, express words would be  
      required before rights would be extended to illegitimate children. 
              When illegitimate children are to be included, the legislature knows  
40      how to make that plain and has done so. The majority decision in Watson- 
      Morgan sets out a useful analysis. Clearly, by express provisions in  
      statutes such as the Adoption of Children Law, the Maintenance Law, and  
      (now) the Guardianship and Custody of Children Law, illegitimate  
      children are included for some purposes. In the context of the  
45      Matrimonial Causes Law, this court has given “child” its natural meaning, 
1999 CILR 466

      where there are no other limiting or qualifying words, and made orders  
      for the child’s welfare even where a marriage was void ab initio: see  
      McLean v. McLean (1). Apparently, the Cayman legislature has never at  
      any time been prepared to enact a blanket provision—comparable to the  
5      English legislation—which would include illegitimate children as  
      “children” for all purposes. There have been opportunities to do so. 
              Upon the enactment of sub-ss. (3) and (4) of s.35 of the Succession  
      Law, the legislature could easily have mirrored the existing provisions of  
      sub-ss. (1) and (2) relating to unwed mothers, but that was not done and I  
10      must assume it was intentionally not done. 
              As noted above, the 1969 English legislation included broad provisions  
      making it clear that unless the contrary intention appeared, any reference  
      (whether expressed or implied) to a child should be construed as  
      including a reference to any illegitimate child. The same section of the  
15      reforming legislation in England also abolished “any rule of law that a  
      disposition in favour of illegitimate issue not in being when the  
      disposition takes effect is void as contrary to public policy.” Significantly,  
      this latter specific abolition was also enacted in the Cayman Islands by s.4  
      of the Property (Miscellaneous Provisions) Law of 1994. However, the  
20      broader reforms (in the same English section) having the effect of  
      including illegitimate children as “children” were never enacted here. 
              In an attempt to circumvent this lacuna in the statutes, it might be  
      argued that the new definition of “child” in the Guardianship and Custody  
      of Children Law (1996 Revision), s.2 to include “an illegitimate child”  
25      might be applied where the word “child” is used in statutes in pari  
      materia. I would not be inclined to take that leap here. I make a  
      distinction between, on the one hand, statutes aimed at the protection and  
      welfare of children and, on the other, statutes dealing with property  
      rights. The Succession Law is of the latter class. The other statutes I have  
30      mentioned tend to be in the former class and their provisions, by and  
      large, are now clear on the point. 
              In RHB Trust Co. Ltd. v. Butlin (4) Harre, J. (as he then was) held that  
      references to “child” and “issue” in a trust settlement must be given their  
      common law meaning, so that illegitimate children would be excluded.  
35      RHB Trust Co. Ltd. was decided after the amendment to the definition of  
      “child” in the Guardianship and Custody of Children Law, upon which  
      Harre, J. commented. Harre, J. was of the view that apart from situations  
      where this construction could be displaced on the basis of particular  
      circumstances or the language of a document, the courts had no general  
40      power to reverse the common law presumption, as there had been no  
      general legislation in the Cayman Islands that had done so. He had this to  
      say (1992–93 CILR at 224): 
                      “It is a matter of common knowledge that settlors from other parts  
          of the world have established family trusts in the Cayman Islands,  
45          and it cannot be assumed that by any means all of those families live 
1999 CILR 467

          under a social system which embodies the approach which England  
          has adopted in the Family Law Reform Act 1969. For this court to  
          direct that in the context of a family settlement the words ‘children’  
          and ‘issue’ do not under Cayman law have their prima facie  
5          meaning at common law would in my judgment be wrong. Although  
          the direction asked for is specific to two settlements it must have  
          application in a wider context and place other families in a position  
          which they may contemplate with dismay. If that is to be done it is a  
          matter for the legislature.” 
10          I endorse that general approach. While a court might conceivably strain  
      for a particular interpretation of a statute where the protection of children  
      is involved, I do not believe it should ever do so where what is under  
      scrutiny is legislation creating proprietary rights. Those interested in or  
      asserting such rights must be entitled to the comfort of knowing that those  
15      rights will not be interfered with except by express statutory provision,  
      and that they can plan accordingly. This should apply equally to inter  
      vivos trusts and transfers and to succession: (see in this context provisions  
      of the Legitimation Law, especially ss. 3 and 4, which arguably mirror  
      this approach to property rights). 
20              In Sydall v. Castings Ltd. (5), in which the word “dependants” in an  
      insurance scheme was held by the majority of the English Court of  
      Appeal (Lord Denning, M.R. dissenting) to exclude illegitimate children,  
      there appears the classic quotation ([1967] 1 Q.B. at 321): 
                      “I may perhaps be forgiven for saying that it appears to me that  
25          Lord Denning, M.R. has acceded to the appeal of Bassanio in the  
          Merchant of Venice. 
                              Bassanio: ‘And I beseech you, 
                          Wrest once the law to your authority: 
                          To do a great right, do a little wrong.” 
30                  But Portia retorted: 
                              Portia: ‘It must not be; there is no power in Venice 
                          Can alter a decree establishéd: 
                          ’Twill be recorded for a precedent, 
                          And many an error, by the same example, 
35                          Will rush into the State: it cannot be.’” 
          Like Russell, L.J. in that case, I am obliged to record that “I am a Portia  
      man.” 
              I conclude that in this jurisdiction illegitimate children may not share  
      on the intestacy of their natural fathers, except in the narrow circum- 
40      stances set forth in s.35(3) of the Succession Law, that is, where the father  
      has been subject to affiliation proceedings in his lifetime. 
              That result may not be fair. It may point to a lacuna in our law. It may  
      not accord with the values and mores of our society in the 21st century. It  
      may even be perceived by some to be contrary to modern morality. Those  
45      are not my direct concerns as a judge. I may have my own views on what 
1999 CILR 468

      is proper and they may not accord with what I have decided. That is  
      irrelevant. My function is to apply what I perceive the law to be and I  
      have done that. My function is not that of a social engineer or to impose  
      my own values by creative judicial interpretation. If there is to be reform  
5      in this area that is for the legislature, not for me. 
              I do not think this is an appropriate case in which to make any order for  
      costs. 
Application dismissed.
Attorneys: Broadhurst, Collins & Furniss for the applicants; C.S. Gill & Co. for the respondents.