Nisha v Trustee Corporation Ltd [2002] FJHC 281; HPP0241J.2000 (28 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

PROBATE ACTION NO. 0241 OF 2000

BETWEEN:

KAMRUL NISHA
d/o Mohammed Hanif
Plaintiff

AND:

TRUSTEE CORPORATION LIMITED
1st Defendant

MOBINUL HAQ

SHAMIMUL HAQ aka SHAMIMUL HAK

HAFIZUL HAQ

RAFIZUL HAQ
All sons of Jainul Haq
2nd Defendants

Mr. M. Arjun for the Plaintiff
Mr. P. McDonnell for the 1st Defendant
Mr. A. Tikaram for the 2nd Defendants

JUDGMENT

On the 2nd April 1996 Jainul Haq a retired civil servant (the 'testator’) made a will leaving his estate 'in equal shares’ to his five (5) sons. On the 24th of October 1997 the testator died in Liverpool Hospital, Sydney whilst undergoing medical treatment for a heart condition. On 15th December 1997 the Trustee Corporation as the named 'Executor and Trustee’ of the testator’s will obtained a grant of probate from the High Court.

The plaintiff who is the lawful widow of the testator now seeks in this Writ action various orders, principal amongst which is the revocation of the grant of probate on the basis that ' ...... the said will was revoked on 6th August 1997 upon the marriage of the deceased to the plaintiff.’ (See: para. 6 of the Statement of Claim).

The second defendants who are the testator’s sons from his first marriage seek to uphold the will however, on the basis that '...... the deceased and the plaintiff were religiously married (under the Muslim rites) sometimes in June 1986 (and) lived as husband and wife and their marital relationship produced Hakva Sultan Haq on 24th January 1992.’

(See: para.5 of the Statement of Defence).

In reply, the plaintiff admitted that '(she) started living with the deceased after a religious ceremony ...... (and) had a child by him’ but maintains that the '(religious ceremony) was in contemplation of a legal marriage’ which did not eventuate 'until 6th August 1997.’ (See: para.1 (a) (b) & (c) of the plaintiff’s Reply).

The present application before the Court is brought under Order 14 of the High Court Rules 1988 for 'a declaration in the terms of the Statement of Claim’. It is difficult to understand what is meant by that expression as no declaration is actually sought in the prayers for relief. Be that as it may, the application is brought on the basis that the defendants have 'no defence’ to the plaintiff’s claim. The plaintiff has filed two (2) affidavits in support of the application and the second defendants filed three (3) affidavits opposing it. The testator’s will forms a common annexure to the affidavits.

It is sufficiently clear from the above-mentioned pleadings and the affidavits that the following are largely undisputed facts:

1. That the testator and the plaintiff underwent a 'religious ceremony’ of marriage in 1986 and began living together as husband and wife;
   
2. That the testator and the plaintiff had lived together for some time

before the testator’s will was made on 2nd April 1996;

3. That the testator and the plaintiff had a son Hakva Sultan Haq who was born out of their relationship on 24th January 1992 (no birth certificate supplied);
   
4. That the testator and the plaintiff were legally married on 6th August 1997 in conformity with the provisions of the Marriage Act (Cap.50).
   

It is also common ground that the plaintiff is nowhere named or mentioned in the testator’s will although his son by her is the fifth- named beneficiary under the will. Equally the testator’s will is nowhere '...... expressed to be made in contemplation of a marriage.’ The estate which is substantial and includes a residential property is sworn at $200,000.

Without necessarily accepting that Order 14 is available in a 'probate action’ upon which I entertain some considerable doubt, with the agreement of counsels and on the basis of the undisputed facts, I am prepared to consider and determine this application.

Section 13 of the Wills Act (Cap.59) provides that:

'A will is revoked by the subsequent marriage of the testator ...... Provided that a will expressed to be made in contemplation of a marriage is not revoked by the solemnisation of the marriage contemplated.’

and

Section 36 of the Marriage Act (Cap.50) provides that:

'(1) At any time after the solemnisation of a marriage by the Registrar-General or a district registrar, the parties to such marriage may, if they so desire, upon the production of the certificate of the Registrar-General or district registrar as to the marriage, have a further marriage service performed according to the form ordained or used by the religion or religious denomination to which either or each of such parties belong.

(2) Nothing in the reading or celebration of a marriage service under the provisions of subsection (1) shall supercede or invalidate any marriage previously solemnised nor shall such reading or celebration be entered as a marriage in the register of marriage.’

Counsel for the plaintiff relying on the above provisions submits that 'the marriage to be taken into consideration is the lawful marriage of 6th August 1997 and not the religious ceremony performed under the Muslim rites.’ In other words, unless the testator’s will can be saved by the 'proviso’ to Section 13 of the Wills Act it 'is revoked by the subsequent marriage of the testator.’

Defence counsel whilst accepting the absence of any written expression in the testator’s will that it is '...... in cont contemplation of a marriage’, nevertheless, points to the existence of legal capacity in both the testator and the plaintiff to contract ad marriage; the admitted fact that they underwent a religioligious ceremony of marriage; the fact that they thereafter lived together as husband and wife and had a son during their relationship, as evidence evincing an intention on their part to regularise (to adopt a neutral expression) their relationship at some future date.

Whatsmore it is deposed by the second defendants that the purpose of the testator solemnising his long-standing relationship with the plaintiff was solely to enable the plaintiff to qualify, as the testator’s lawful widow, to receive the testator’s pension upon his death. [See: Section 3 of the Pensions Act (Cap.77)].

This particular item of evidence however might be relevant in an application under the Inheritance (Family Provisions) Act (Cap.61) where a wife or child has been disinherited in a will or where the terms of a will are ambiguous, but, is entirely irrelevant in considering the meaning and effect of Section 13 of the Wills Act (Cap.59) which is the singular issue before the Court in the present application.

In this latter regard although I know of no local decision in which Section 13 of the Wills Act has been considered, I have been greatly assisted by the numerous New Zealand, Australian and English decisions that were drawn to my attention in counsel’s written submissions and which construed the equivalent, albeit not identically-worded or styled, provision of their respective legislations dealing with the revocation of a testator’s will by the testator’s subsequent marriage.

One such decision was Burton v. McGregor (1953) N.Z.L.R. 487 wherein F.B. Adams J. in the Supreme Court of New Zealand said of the purpose of the New Zealand equivalent of our Section 13, at p.490:

'The purpose of the law as to revocation by marriage is to let in the claims of wives and children, and it is reasonable to suppose that their claims are properly protected and adjusted by the law as to intestacy. To maintain a will made before marriage may result in injustice to children, or even to the wife herself, and there are good reasons why it should not be done unless the intention is clear on the face of the will.’

Quite plainly in the present case given the beneficiaries under the testator’s will, the plaintiff would be entirely excluded from sharing in her late husband’s estate despite having lived with him, as his wife, for over eleven (11) years. Furthermore, if I accept what is deposed by the defendants concerning the testator’s intention regarding his pension, then clearly, the testator himself was aware that his 'religious’ marriage to the plaintiff was legally ineffectual to confer on her pension rights as his lawful 'widow’.

Be that as it may I am satisfied that the 'marriage’ referred to in Section 13 of the Wills Act (Cap.59), in the absence of a definition of the term in the Act, means, a marriage solemnised in accordance with the provisions of the Marriage Act (Cap. 50) and does not include a marriage conducted according to religious rites only.

I am fortified in my view by the provisions of Section 6 of the Matrimonial Causes Act (Cap.51)

'...... a marriage ...... is void where -

(c) The marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of the failure to comply with the requirements of the law of that place with respect to the form of solemnisation of marriages;’

Needless to say whilst the Marriage Act (Cap.50) does not prohibit or prevent a registered marriage being later consecrated in accordance with the parties religious beliefs, nevertheless, such a marriage neither 'supersedes or invalidates any marriage previously solemnised ......’ in accordance with the Marriage Act nor may it 'be entered as a marriage in the register of marriages’ maintained by the Registrar-General (See: Cap.49).

What's more the relevant marriage for the purposes of Section 13 is not a marriage that occurs before the making of the will, but, one that is 'subsequent’ to its making.

If I am wrong however in the above interpretation I have no hesitation in construing the 'proviso’ to Section 13 of the Wills Act (Cap.59) as requiring some actual written form of expression in the testator’s will from which it might reasonably be inferred by the Court that the will is 'made in contemplation of a (particular) marriage’ to an identifiable person and the marriage which is subsequently solemnised in accordance with the Marriage Act, is that which is expressly contemplated by the will.

As was said by Bennett J. in Sallis v. Jones (1935) All E.R. 872 at p.874 (speaking about the U.K. equivalent of our Section 13):

'It is plain, in my judgment, that, in order that the operation of Section 18 of the Wills Act, 1837, may be excluded and prevented from operating to revoke a will made before a testator’s marriage, there must be in that will an express reference to a marriage and there must afterwards be a solemnisation of that marriage ...... (the section) has no operation unless there is found in the will something more than a declaration or reference to marriage generally.’

In the present case, as already pointed out, no mention or reference is made at all in the testator’s will to the plaintiff either by name or by some other appropriate description, much less, is there any suggestion or expression in the will that it is 'made in contemplation of a marriage’ to her.

Indeed, the probabilities are, in defence counsel’s words: '...... when the testator made this will he had no doubts that he was (already) lawfully married to the plaintiff for eleven (11) years ......’ and therefore presumably, the testator had never contemplated getting married to her again at the time of making the will.

I accept that the testator specifically named his son borne of the plaintiff as a beneficiary under the will but, that alone, cannot be construed as indicating an intention on the testator’s part to disinherit his son’s mother (as was deposed).

I therefore pronounce against the testator’s will and declare it to have been revoked by the testator’s subsequent marriage to the plaintiff on 6th August 1996. The plaintiff is accordingly entitled to apply for letters of administration of the testator’s estate and she must do so in common form, such application to be accompanied by a sealed copy of this judgment.

For the sake of completeness the first defendant Corporation is hereby ordered within seven (7) days to return the grant of probate No: 34840 to this Court for formal revocation.

The costs of this application are to be borne by the estate.

(D.V. Fatiaki)
JUDGE

At Suva,
28th February, 2002.