Public Trustee v Bibi [2000] FJHC 103; Hbc0333j.1999s (20 September 2000)

Fiji Islands - The Public Trustee v Bibi - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION NO. HBC 333 of 1999S

Between:

THE PUBLIC TRUSTEE

Plaintiff

and

FATIMA BIBI

(f/n Shafiq Buksh)

Defendant

W. Archibald for the Plaintiff

E. Veretawatini for the Respondent

JUDGMENT

Taj Mohammed (f/n Jiledaar) died on 20 February 1999 leaving a lawful widow Jamina Bano and 4 children aged between 10 and 26. But at the time of his death Taj Mohammed was not living with his wife from whom he had in fact separated in 1980; he was living with another woman, Fatima Bibi.

On 11 March 1998 Taj Mohammed made a document purporting to be his “last will and testament”. He appointed his youngest child Mohammed and Fatima Bibi as his sole executives and trustees and devised and bequeathed his entire estate to them absolutely.

Following Taj Mohammed’s death the Public Trustee applied for a grant of Letters of Administration on behalf of his widow, Jamina Bano. Fatima Bibi lodged a caveat in April 1999, relying on the purported will. This is an action by the Public Trustee seeking a pronouncement against the purported will on the ground that it was not executed in accordance with the requirements of Section 6 (b) of the Wills Act (Cap 59 – The Act) in that it had not been signed by the testator in the presence of two witnesses present at the same time.

In addition to the Plaintiff’s affidavit of testamentary script there is also an affidavit sworn on 7 March 2000 by a Justice of the Peace, Brij Bhan Singh, who acknowledges that when he witnessed the purported will no other witness was present.

Both Mr. Archibald and Mr. Veretawatini filed helpful and well researched written submissions.

Mr. Veretawatini did not seek to argue that the purported will complied with Section 6 of the Act. Rather, he suggested that Taj Mohammed’s wishes were clear, namely that his de-facto wife and youngest son should have a share in his estate. He pointed out that Taj Mohammed had not lived with his lawful wife for nearly 19 years. Citing a number of English authorities he submitted that it was only just and equitable those who had actually been living with Taj Mohammed at the time of his death should benefit.

By contrast, Mr. Archibald emphasised that the purpose of the strict requirements of Section 6 of the Wills Act is to prevent fraud. These requirements, he submitted, could not be waived merely with the aim of securing “some vague notion of justice”. While not entirely rejecting the possibility that Fatima Bibi might be able to advance some form of interest in the estate arising under a constructive trust as suggested by Mr. Veretawatini he submitted that the possible existence of such a trust could not directly affect the validity of the purported will.

In my opinion the requirements of the Wills Act are clear and settled. Applying the Section 6 requirements to the purported will must, in my opinion lead to the conclusion that it was not validly executed. In these circumstances Taj Mohammed died intestate and therefore his lawful wife Jamina Bano is entitled to the grant of Letters of Administration. This conclusion does not however entirely exclude Fatima Bibi since, as pointed out by Mr. Veretawatini, she may well have some equitable claim on the estate. These proceedings do not however constitute such a claim and do not provide any justification for the continuation of the caveat lodged to prevent the Plaintiff sealing a grant.

I pronounce against the purported will of Taj Mohammed dated 11 March 1998 and order that the caveat dated 24 April 1999 is to cease to have effect forthwith.

M.D. Scott

Judge

20 September 00

HBC0333J.99S