application raises an interesting and apparently novel point relating to the
administration of an intestate’s estate. Put shortly it raises the
question whether a person who is doubly related as a cousin of a deceased
intestate takes two shares or only share in the estate. It is a point which
has come before some courts in other Commonwealth jurisdictions but does not
appear to have been decided in this jurisdiction or in England and Wales under
the parallel English legislation.
Patrick late of Magheracolton, Newtownstewart, County Tyrone, deceased, died
intestate on 2 May 1992. Letters of administration were granted by the
Londonderry District Registry to Mabel Moore who died on 1 February 1999
without having completed the administration of the estate. On 8 July 1999
Letters of administration were granted to Thomas Moore Patrick, the present
plaintiff. The net value of the estate amounts to the sum of £676,000.
deceased was the daughter of John Patrick and Bella Patrick (nee Moore).
Although they had seven children including the deceased all died without issue
and the deceased was the last survivor of the children.
deceased’s father was one of eleven children all of whom predeceased the
deceased. Of his siblings three died without issue. The remaining seven
siblings left issue and their descendants are thus entitled to a distributive
share in the estate of the deceased. On the father’s side the following
were the uncles and aunts of the deceased, namely William, Mabel, Robert,
Elizabeth Margaret, Sarah, Minnie and Rebecca.
deceased’s mother was herself one of nine children. All predeceased the
deceased and two died without issue. The remaining six siblings left issue and
their descendants are thus entitled to distributive shares in the estate of the
deceased. On the mother’s side the relevant uncles and aunts comprised
William, John, Sarah, May, Annie and Margaret.
paternal uncle Robert Patrick married a sister of the deceased’s mother
Margaret Moore. They had five children of whom one survives namely the
plaintiff. Their other children predeceased the deceased leaving issue. The
second defendant is the daughter of one of the daughters of that marriage.
Another daughter of the marriage Mabel married Thomas George Moore who was a
son of William Moore one of the maternal uncles. Their children were thus
doubly related to the deceased.
at its simplest in the context of the present case are the plaintiff and the
second defendant entitled to a share of the estate measured by the fact that
they are issue of a paternal uncle (who would have been entitled to
one-thirteenth share in the estate if he had survived the deceased) and also
are issue of a maternal aunt (who would have taken another one-thirteenth share
of the estate if she had survived), making a total of two-thirteenths of the
estate or are they entitled only to share in a one-twelfth share of the estate
on the basis that they can claim only once as next of kin of the deceased?
Although the mathematics are more complex in the case of the issue of Thomas
George Moore and Mabel Moore the same principle arises.
is little assistance in the textbooks on the issue raised. In Mellows on The
Law of Succession 4
Edition at 162-163 the text poses the question whether in the case of an
intestate dying leaving two cousins one the issue of a maternal aunt and a
paternal uncle and one the issue of a maternal aunt and a non relative the
doubly related cousin takes one share or a double share. That textbook points
out that there is no English authority but that there are Commonwealth
authorities to the effect that the doubly related cousin could not take more
than one share.
the Ontario case of
 600 LR 697 an intestate died leaving as his next of kin cousins. One
was the blood niece of both his mother and father. The court held that under
the provisions of the relevant statute the estate was to be distributed equally
among collateral relatives in the same degree of kinship. Meredith J pointed
out that under the relevant statue that “they take in their own right and
not by way of representation”. The Canadian legislation clearly differed
from the 1955 statute in this jurisdiction which does make clear that the issue
of uncles and aunts take by reference to the principle of representation.
the South Australian case of
 14 SASR 456 Zelling J had to consider the case of a bachelor who died
intestate leaving as next of kin first cousins who survived him. The
intestate’s father’s sister had married the intestate
mother’s brother and three of their children survived the intestate.
Analysing the Statute of Distribution 1670, being the then relevant statutory
provision in South Australia, the court held that the three children did not
take a double share by reason of their inheritance on both sides of the family
but took equally per capita with the other first cousins of the intestate. The
court pointed out that the Statute of Distributions expressly provided that
there should be no representation admitted among collaterals after the
brothers’ and sisters’ children and the claimants in that case were
a remoter degree of kin. In
 VLR 123 the Victorian Court had to consider the question of whether a
widow who was also the cousin of the deceased intestate was entitled both to
her widow’s share and a share as next of kin. The court concluded that
she was entitled, the court holding that where a person stands in two distinct
relationships to the intestate she was entitled to share appropriately in
respect of each of those relationships.
Commonwealth authorities of
all make clear that the court was carrying out an exercise of interpreting the
relevant applicable statutes of distribution. The courts in those cases
stressed the absence of any provision for the determination of the shares of
the claimants to an intestate’s estate by reference to the principle of
makes clear that if the relevant statute does give rise to separate
relationships to the intestate a beneficiary is entitled to the share
appropriate to each of the relationships.
the present case the 1955 Act is tolerably clear and explicit in providing for
a distribution among the issue of uncles and aunts on the basis of
representation per stirpes. The Commonwealth decisions on analysis do not
support the argument that a cousin’s share may only be calculated by
reference to one parent where the parents are brother and sister respectively
of one of the deceased’s parents.
logic of the statutory provisions compels the conclusion that where there are
children or remoter issue of a paternal uncle and a maternal aunt the shares of
the issue fall to be calculated by reference to the two separate stirpes
represented by the deceased’s uncle and deceased’s aunt.
way in which an estate should be distributed on intestacy is a matter of
legislative policy and it is a question of determining the meaning of the
relevant statutory provision. There is nothing more fair or more logical in
allowing a double cousin to receive a single share or a double share. Indeed
one can see the possibility of intrinsic illogicality in concluding that a
double cousin should only receive a share calculated by reference to one
parent. If the surviving next of kin of a deceased comprised a cousin (being
the issue of a paternal uncle and a maternal aunt), the maternal aunt herself
and the issue of a predeceased maternal aunt and a non relative uncle the
maternal aunt would share in the intestacy of the deceased if she survived the
intestate. If the maternal aunt died the day after the deceased’s death
her share would devolve in accordance with her will or intestacy. If on the
other hand she had died very shortly before the deceased why should her child,
the cousin, be deprived of the share that the aunt would have received if she
had survived the deceased by a day?
the result I answer the question posed in the Originating Summons in the
affirmative. I appoint the first defendant to represent all the next of kin of
the deceased who would stand to benefit from a greater share in the event of a
negative answer to the question posed in the amended Originating Summons.