Tuibua v Wati [2002] FJHC 30; Caveat No 13 of 2001 (24 September 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

IN PROBATE:
CAVEAT NO. 13 OF 2001

Between:

NANISE TUIBUA
Plaintiff

and

UMA WATI (d/o Raj Gopal)
As Executrix and Trustee of the
Estate of MANOA TUIBUA Deceased
Defendant

K Bulewa for the Plaintiff
S. Parshotam for the Defendant

JUDGMENT

Manoa Tuibua died in April 2001. He left a will. He appointed the Defendant as the sole executrix, trustee and beneficiary.

The Defendant sought probate in May 2001 however a caveat was lodged against the grant by the Plaintiff 3 days later.

In July 2001 the Defendant sought removal of the caveat. In August 2001 the Plaintiff filed an affidavit in answer. On 18 September 2001 the Plaintiff also filed an Originating Summons seeking provision for herself under Section 3 of the Inheritance (Family Provision) Act (Cap 61-the Act).

The Plaintiff is seeking payment of all arrears of maintenance due to her and 50% of the net value of the estate.

It is not disputed that the Plaintiff was married to Manoa Tuibua in 1981 and that they separated in 1985. There were no children of the marriage. After the separation Manoa Tuibua began living with the Defendant. According to the Defendant’s affidavit filed in June 2001 she and Manoa underwent a traditional marriage in Labasa in 1987. There are two children of this union namely Anthony aged 12 and Angelyn aged 10. They live with their mother.

After the separation the Plaintiff began maintenance proceedings in the Nausori Magistrates’ Court. According to her affidavit she was initially awarded $15 per week however that sum was later reduced to $10 per week. Apparently Manoa Tuibua fell into arrears. Although no certificate was obtained from the Nausori Magistrates’ Court the Plaintiff states that at the time of his death she was owed at least 5 years of maintenance arrears, in other words approximately $2,500.00.

In 1988 the Plaintiff emigrated to Australia where she now permanently resides. She is 63 years old and works as a nursing assistant earning $500 per week.

On 28 November 2001 Mr. Bulewa consented to probate being granted to the Plaintiff subject to her claim being noted. Removal of the caveat was also consented to.

On 9 August 2002 the Defendant filed an affidavit of means. The estate’s principal assets are a house at Waiyavi Lautoka worth approximately $25,000 in which the Defendant and her two children are living, a motor car worth about $4,000 and $18,000 in the bank. The Defendant does not work although she raises chickens and sells eggs and chickens earning about $20 each week. She receives no welfare assistance. She has debts of nearly $6,000. She has electricity and telephone expenses of about $45 per month while groceries account for about another $250 per month. The children’s school fees and other expenses come to about $120 per month.

In exercising the jurisdiction given to it by the Act the High Court places itself in the position of the deceased and considers what he should have done in all the circumstances foreseeable at the time of his death (see Re Allen, Allen v. Manchester [1921] NZGazLawRp 155; [1922] NZLR 218, 220; Re Howell, Howell v. Lloyds Bank Ltd [1953] 2 All ER 604). Moral as well as legal obligations have to be taken into account and the financial resources of the estate are highly relevant.

In the present case the Plaintiff is a single person living in a modern welfare state. The Defendant on the other hand has two quite young children still to bring up and receives no outside assistance. I think it likely that the arrears of maintenance (only $520 per annum) were allowed to accumulate because the Plaintiff did not think that they were worth pursuing after leaving for Australia in 1988. The effect of awarding the Plaintiff the arrears of maintenance would be significantly detrimental to the Defendant and her family. While the payment of $2,500 would be welcomed by the Plaintiff it would not have a major impact on her circumstances. Similar considerations apply to the house. It is not clear when this house was purchased and whether it was ever the Plaintiff’s matrimonial home. Its sale would deprive the Defendant and the children of a roof over their heads. It is not clear whether the Plaintiff is living in at her place of work but the payment to her of one half of the expected proceeds of sale of the house would not, in my estimation, significantly improve her situation.

Although the Fiji Court of Appeal in Doyle v. Doyle & Anr (ABU 1/97) held that arrears of maintenance ordered following divorce could, with the leave of the Court, be enforced against a deceased’s estate there is authority that arrears of maintenance payable under the Maintenance and Affiliation Act (Cap 52) do not survive death (see Re Bidie, Bidie v. General Accident First & Life Assurance Corporation Ltd [1949] Ch 121; [1948] 2 All ER 995). Certainly the enforcement provisions in the Maintenance and Affiliation Act appear to be at variation with any suggestion that maintenance under that Act can survive death.

Strict legal considerations part, I have concluded after looking at the circumstances of the Plaintiff and the Defendant in the round that a variation of the terms of Manoa Tuibua’s will would not be justified (see Re Joslin, Joslin v. Murch [1941] Ch 2000; [1941] 1 All ER 302). While I have some sympathy with the Plaintiff and there is no reason to doubt the assertion that she was treated badly by her husband, to penalise the Defendant and her two children for the shortcomings of Manoa Tuibua’s behaviour would not in my view be right either. The application for provision fails and is dismissed.

M.D. Scott
Judge

24 September 2002