In re the Estate of Umrai, Lal v Lal [2002] FJHC 75; HPP18040j (12 September 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

PROBATE NO. 18040

IN THE ESTATE of UMRAI
(f/n Bisessar) late of 307 Fletcher Road, Vatuwaqa, Suva,
in the Dominion of Fiji, Domestic Duties, Deceased.

BETWEEN:

NIRMALA LAL
f/n Kanchan Lal of 307 Fletcher Road, Vatuwaqa, Suva
as administratrix of the Estate of Mohan Lal
alias Hira Lal (f/n Ram Bali) deceased.
Applicant

AND:

NITYA LAL
f/n Ram Bali
Respondent

Mr. V. Maharaj for the Applicant
Mr. S. Savou for the Respondent

JUDGMENT

By Notice of Motion dated 6 March 2001 Nirmala Lal (the ‘applicant’) applies to court for ‘an order that Probate No. 18040 granted on the 22 day of January, 1982 in the name of Nitya Lal (f/n Ram Bali) and Mohan Lal alias Hira Lal s/o Ram Bali be revoked and a fresh Probate be granted into the name of the Applicant’ upon the grounds stated in the affidavit sworn by her on 13 February 2001.

An affidavit in response to the applicant’s affidavit was filed by Ravi Shankar Lal f/n Brij Lal (RSL) of Suva who is the Attorney of the said Nitya Lal appointed under Power of Attorney No. 22682 dated 13 March 1992. Then there was an affidavit in response to the Affidavit in Reply of Ravi Shankar Lal followed by a further affidavit in response by R.S. Lal.

Background facts

The background facts and the status of the various people mentioned in the affidavits are as follows:

(a) Nirmala Lal (applicant) is the administratrix in the estate of her husband Mohan Lal (ML) who died on 13.1.87 (vide Letters of Administration No. 38512)

(b) The deceased M L and his brother Nitya Lal (N.L) were appointed executors and trustees in the Estate of Umrai wife of Ram Bali (vide Probate No. 18040)

(c) N L left Fiji 20 years ago and lives in Canada.

(d) It is alleged by the applicant that N L is only entitled to a share in the estate “so long as the beneficiary concerned makes the said property his or her principal place of residence in Suva” (vide Will of Umrai dated 19.1.66 item 3(b)).

(e) The applicant is the legal widow of Mohan Lal deceased s/o Ram Bali. She lives on the Estate property with her 3 children who she says are the legal beneficiaries in the estate of Umrai and therefore entitled to occupy the estate property at 307 Fletcher Road, Vatuwaqa, Suva.

Consideration of the issue

The applicant wants NL to be removed as executor and trustee as he no longer resides in Fiji. He has been away overseas for 20 years but has given a power of attorney to R S Lal to look after the Estate property. R S L says that whenever N L visits Suva he ‘uses the property as his principal residence’. The applicant says that N L having migrated to Canada has lost his beneficial interest in the Estate and has no legal powers to delegate his powers to R S Lal or anyone else. The applicant denies that N L ever lived on the said property on his short visits to Fiji.

The counsel for NL, Mr. Savou, argues that N L is ‘well settled in Canada, but his obligations as Trustee of the will of his late mother still stands, and it exists until such time as and when he dies under the terms of the Will.’

The issue for the Court’s determination is whether on the facts and circumstances of this case and bearing in mind the terms of the Will of Umrai the application ought to be granted or not.

The relevant section of Umrai’s Will pertaining to the issue is clause 3 (b) which provides inter alia:

3. I Give Demise at Bequeath to my trustees my freehold residential property now owned by me and occupied used and enjoyed by me and my family and comprised in Certificate of Title No. 10825 or any property subsequently purchased in substitution therefor UPON TRUST:

(a) .....

(b) To use keep and maintain the same as a family home for my said sons and their respective wives and unmarried children during the several lives of the respective parents and so long as each of the said parents makes the said property his or her principal place of residence in Suva my trustees paying all rates and taxes and other like out-goings and keeping the premises insured against fire and windstorm and in a good and habitable state of repair.

The said N.L. is the remaining executor and trustee of Umrai’s Will. Whereas the applicant is the administratrix of the estate of her husband Mohan Lal alias Hira Lal who was the co-executor and trustee with the said Nitya Lal (NL). In short therefore the estate is being administered by both Nitya Lal (the NL) and Nirmala Lal (the applicant).

The problem here is, as alleged by the applicant, that because NL’s ‘principal place of residence’ is not as required under the Will he should be removed as executor and trustee although he has given a power of attorney to the said RSL. The applicant wants the revocation of the Grant of Probate and that she be appointed the sole executrix in these circumstances.

I have very carefully considered the affidavits filed herein and also the very comprehensive submissions from both counsel.

It is submitted by the applicant that what the respondent has done here is that he has appointed an Attorney under a Power of Attorney to look after his interests. This does not comply with the said provisions of the Will in regard to “principal place of residence”.

This motion is for revocation of the grant of Probate No. 18040 in the estate of Umrai the wife of Ram Bali (now deceased). Of the two executors under the Will the respondent is the surviving executor. Letters of Administration No. 38512 has been granted the applicant in the estate of the said Ram Bali (one of the said two executors).

The situation therefore is that both the applicant and the respondent are administratrix and executor respectively of the respective Estates.

In the Will of Umrai under the said Clause 3 both are beneficiaries under it on certain terms as stated therein particularly depending on the interpretation of the expression ‘principal place of residence in Suva’ concerning the parties.

The question now arises as how to deal with this application in such a situation.

It is my considered view, bearing in mind the relief that is being sought, that, after reading the motion, the affidavits and the very useful written submissions filed herein by both counsel, these proceedings should actually have commenced as a ‘probate action’. It is not just the removal of a trustee which is involved here and which could have been easily dealt with by motion.

Once it is accepted that it is a ‘probate action’ then the procedure to be followed is as stated in Order 76 Rule 2(1) of the High Court Rules 1988 which provides:

A probate action must be begun by writ, and the writ must be issued out of the Registry. (emphasis mine)

The applicant in short says that since the respondent’s ‘principal place of residence’ is not ‘in Suva’ as required under the said Clause 3 of the Will, the latter has foregone his beneficial interest in the estate property. The learned counsel for the respondent does not agree. He says that there is no specific directive in the said clause to state that if the parents live outside Suva that they will be precluded as beneficiaries of the Estate of Umrai.

Conclusion

There certainly is an important issue to be tried and this cannot be done by affidavit evidence alone. It involves an interpretation of the said provision in the Will. There has to be a writ action to determine the issue. I already have useful written submissions on the interpretation of clause 3 of the Will from both counsel but this cannot be considered in this motion which I would say is misconceived.

For these reasons the application is dismissed. Because it is an estate matter and on the facts each party is to bear his own costs.

D. Pathik
Judge

At Suva
12 September 2002