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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
ACTION NO. HPP0011D of 2001S
IN THE MATTER of the Estate of Robert
Emerson Amos, late of 7 Williamson Road
Suva, Businessman, Deceased.
AND
IN THE MATTER of an APPLICATION
FOR DIRECTIONS by the Public Trustee
of Fiji under the provisions of the Public
Trustee Act.
BETWEEN:
THE PUBLIC TRUSTEE OF FIJI
APPLICANT
AND:
PRAKASH WATI AMOS
1ST DEFENDANT
AND:
JIM EMERSON AMOS
of 371 Van Buren Avenue,
Oakland, CA 94610, United States of America.
2ND DEFENDANT
AND:
THOMAS WATSON AMOS
of 4 Ancher Drive, Emeryville, CA 94608, United States of America.
3RD DEFENDANT
AND:
VERNON EMERSON AMOS
of 1140 East Orange Street, Tempe, Arizona 85281, United States of America.
4TH DEFENDANT
AND:
ANTHONY ROBERT AMOS
of 1698 Ontario Drive, Sunnyvale, CA 94087, United States of America.
5TH DEFENDANT
AND:
ANTHONY AVEENASH AMOS
of Samabula, Suva, Fiji.
6TH DEFENDANT
Counsel for the Applicant: F. Hanif: Munro Leys
Counsel for 1st, 4th & 5th Defendants: P. Knight: Cromptons
Date of Judgment: 6 September, 2005
Time of Judgment: 9.30 a.m.
JUDGMENT
The Applicant is a body corporate established by law, under Public Trustee Act, Cap. 64 (“The Act”) with perpetual succession and common seal capable of holding and disposing real and personal property. Under section 5 of the Act, the Applicant is endowed with the capacities to be appointed inter alia, as executor or administrator of the estate of any deceased person. In such a capacity the Applicant is required to perform and discharge all the acts and duties expected of an executor or administrator under the law.
The facts of this case are not in dispute. The deceased person, one Robert Emerson Amos died on 5 June 1985 leaving a Will dated 26 February 1979. The deceased, in his Will gave all of his property, both real and personal to his widow Prakash Wati Amos (1st Defendant) provided she survived him by 180 days. If Mrs Amos did not, all the estate of the deceased was to go to his two children from his said wife Prakash Wati, namely Vernon Emerson (4th Defendant) and Anthony Robert Amos (5th Defendant). The deceased has two sons Jim Emerson Amos (2nd Defendant) and Thomas Watson Amos (3rd Defendant) from a previous marriage, and Anthony Aveenash Amos, (6th Defendant) an adopted son of the deceased and Mrs Prakash Wati Amos. Anthony Aveenash Amos has since been readopted by his natural mother after the death of Robert Emerson Amos.
On 6th December 1985, Prakash Wati Amos was charged in the Magistrates’ Court in Suva with the murder of the deceased and subsequently convicted of the offence and sentenced to life imprisonment. The administration of the estate of the deceased was consequently granted (with the Will annexed) to the Applicant, but “limited during the Imprisonment of Prakash Wati Amos,” (Grant No. 21327).
Prakash Wati Amos has now been released from prison, and the Applicant by Summons seeks the following directions from this Court:
“ (a) WHETHER the grant of the Letters of Administration Number 21327 (with the Will annexed of the Estate of Robert Emerson Amos of the 17th day of January 1986 made to the Public Trustee of Fiji “limited during the imprisonment of Prakash Wati Amos” be continued without a limiting condition and the Probate Registrar issue a new copy of the grant as such to the Public Trustee of Fiji.
(b) WHETHER by operation of law the whole gift to the widow Prakash Wati Amos is a failed gift and whether the children of a first marriage of Robert Emerson Amos (deceased) through un-mentioned in the Will become entitled to part of the estate under the rules of intestacy.
(c) WHETHER Anthony Aveenash Amos, a person adopted by the deceased on 29th day of April 1983 under provisions of the Adoption of Infants Act, Cap. 58 is entitled to share in the estate.”
(a) Whether the Estate of the Deceased Should be Administered by Prakash Wati Amos, the 1st Defendant
The letters of administration granted by the Court in favour of the Public Trustee was of limited duration and covered only the period of the 1st Defendant’s imprisonment. The latter having now being released, the Public Trustee’s term as administrator of the estate of the deceased, as ordered by the Court, has been complied with and has come to an end. Under the provisions of the Will, the 1st Defendant is appointed as the executrix. The question is whether the 1st Defendant should be permitted to receive the grant of the probate of her late husband, after having been convicted and imprisoned for his murder.
Counsel for the Applicant submitted that considerations of public policy should preclude the 1st Defendant from obtaining the grant, after having been convicted of the murder of her husband. The Court, Counsel added, has powers by virtue of section 35 of the Succession, Probate and Administration Act (Cap. 60) to remove an executor.
Under what circumstances may a Court remove or pass over an executor? According to Halsbury’s Laws (4th Edn.) Vol. 17 at para. 955:
“No broad rule of law can be laid down so as to what are special circumstances enabling the Court to pass over a person otherwise entitled to a grant; each case must be decided upon its own merits.”
In the Estate of Crippen [1911] All ER 207, the conviction of the husband for the murder of the wife was considered by the Court to amount to special circumstance to pass over the legal personal representative of the husband and granted administration of the estate of the wife to one of her next of kin. Similarly in Re S (deceased) {1967} 2 All ER 150, the wife who was sole executrix and beneficiary under her husband’s Will, but who was convicted for his manslaughter was passed over, in favour of the deceased children. The Court held that wife’s conviction constituted special circumstances.
The two English Courts decisions were based on their S.73 of the Court of Probate Act 1857 (succeeded by S.162 of the Supreme Court of Judicature (Consolidation) Act 1925 as amended by S.9 of the Administration of Justice Act 1928) which stated that the Court may pass over a named personal representative in “special circumstances.”
There is no equivalent provision to the English legislation under our laws except section 35 of the Succession, Probate and Administration Act, which Counsel had earlier referred to. Section 35 deals specifically with the powers of the Court to remove an executor, stating:
“ 35. The Court may for any reason which appears to it to be sufficient, either upon the application of any person interested in the estate of any deceased person or of its own motion on the Report of the Registrar and either before or after a grant of probate has been made –
(a) make an order removing any executor of the Will of such deceased person from office as such executor and revoking any grant of probate already made to him; and
(b) by the same or any subsequent order appoint an administrator with the Will annexed of such estate; and
(c) make such other orders as it thinks fit for vesting the real and personal property of such estate in the administrator and for enabling the administrator to obtain possession or control thereof and
(d) make such further or consequential orders as it may consider in the circumstances.” (emphasis added)
Although there is no reference or mention of “special circumstances” under our legislation, I am persuaded by Counsel’s submission that section 35 of the Act allows the Court to exercise its discretionary powers to pass over a person otherwise entitled to a grant, if the circumstances demand. It would seem to the Court that the phrase “for any reason which appears to it be sufficient” in section 35, is broad enough to allow it to exercise its discretion taking any and all relevant matters into consideration.
In this instance, the person entitled to the grant is a convicted felon, guilty of the murder of the testator, her husband. This factor, I believe, is reason enough under section 35 of the Act, and constitutes “special circumstances” as in Re S (deceased), to persuade the Court that it is in the interest of all persons who stand to benefit it from the estate, that the 1st Defendant be precluded from obtaining the grant.
Who then should obtain the grant? The provisions of the Will stipulates that the 1st Defendant, apart from being the sole beneficiary, is entitled to the grant of the probate provided she survived the deceased by 180 days. If she did not, then the 4th and 5th Defendants become the beneficiaries. In the normal circumstances, the Court would have favoured any or both of the 4th and 5th Defendants to obtain the grant. In this case however, the executrix is not only being precluded from obtaining the grant, but that the provisions of the Will itself stipulate that in the event the 1st Defendant “is unable to serve or does not desire to serve as executrix for any reason,” then one K. Lambert Kirk is to be appointed executor in her place. Counsel for the Applicant contends that the testator’s intention should be given effect, under the circumstances of the case.
The Court’s discretionary powers to pass over and grant the administration to another, must have regards to the rights of all persons interested in the estate of the deceased, and is especially important in a case where it is for the administration with will annexed, that the grant be to a devisee or legatee. However, the fact that the testator in this case had specifically directed an alternate, should the appointed executrix for any reason fail to carry out her duties, is sufficient reason for the Court to give effect to it. The Court in deference to the wishes of the deceased will appoint K. Lambert Kirk as administrator of the estate.
(b) Who Are the Beneficiaries
In the case of the 1st defendant, the Applicant argued, the considerations of public policy precludes her from sharing in the estate of the deceased, the rule of public policy in this case being that a person should not be allowed to benefit from his or her crime. In support of this argument, Counsel referred to the leading Case of Cleaver & Or. v. Mutual Reserve Fund Life Association [1892] 1QB 147. In that case, the deceased had taken out an insurance policy over his life for the benefit of his wife who was later convicted of his murder. The Court, ruled that the wife was disentitled to claim the proceeds of the policy for reason of public policy, and that the money payable under the policy formed part of the deceased’s estate. Sir Samuel Evans, P. at p.112 added:
“It is clear that the law is, that no person can obtain, or enforce any rights resulting to him from his own crime; neither can his representative, claiming under him, obtain or enforce any such rights. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence.”
Similarly in Hall, In the Estate of {1914} P. 1 and In re Giles (deceased) Giles v. Giles [1972] Ch. 544 the principle of public policy that a criminal could not benefit from his crime were applied by the Court to disqualify the beneficiaries convicted of their benefactors murders, from taking any benefit either under the Will or in intestacy. Lord Atkin in Beresford v. Royal Insurance Company Ltd. [1938] AC 586 said, at p. 599:
“But apart from these considerations the absolute rule is that the Courts will not recognise a benefit accruing to a criminal from his crime.”
It is plainly obvious from the assertion of the position of the common law as enunciated in The English cases cited above and which equally applies to this Court, that under Fiji law, the first defendant is precluded from sharing in the estate because of her conviction of murdering the deceased.
The identities of the remaining beneficiaries depend on the status of the Will. The Will had given the whole of the deceased’s estate to his wife, the 1st Defendant, on the condition that she survived him by 180 days. Only if she did not, would the estate go to the 4th and 5th Defendants. However while the 1st Defendant had survived the deceased beyond the 180 days, this Court has precluded her from both obtaining the grant and sharing in the estate.
Counsel for the Applicant submitted that the Court in the circumstances, could either treat the 1st Defendant as having predeceased the testator or considered her to have been struck out by the Will, in which cases, the Will remains in existence, or that the contingency for the substituted gift having not been satisfied, namely the succession to the estate by the 4th and 5th Defendants, upon the 1st Defendant not surviving the 180 days, the estate is indisposed of and passes into intestacy.
In support of his submission Counsel referred to the Australian (Supreme Court of Western Australia) case of Davies v. Worthington {1978} WAR 144 and the English decision in In the Estate of Robertson, deceased; Marsden v. Marsden Vol. 107 Sol. Jo 318. In Davis v. Worthington the testatrix had in her Will left her property to the primary beneficiary (“P”), and also appointed him as sole executor provided he survived her for 14 days, failing which she appointed another executor and gave her property to Charity. The primary beneficiary survived the 14 days but was convicted of her murder and barred from taking. In a proceedings for a declaration that there was a gift over to the secondary beneficiaries, the Court held that:
“As the testatrix clearly intended that the gift over to the Charity would take effect only if P did not survive her for 14 days, and as he had, and there was no provision for what would happen to the estate if P was barred from taking, there was an intestacy. The question was one of construction of the Will and it was not correct notionally to regard P as having died immediately before the testatrix nor simply to regard his name as having been struck out.”
In the Estate of Robertson, deceased, Marsden v. Marsden (supra), the testator under his Will, appointed M as sole executor and beneficiary, with the proviso that if M died within the testator’s lifetime, A, M’s adopted daughter should be the sole executrix and beneficiary. Subsequently, M murdered the testator and sentenced to life imprisonment. A brought an action propounding the Will seeking a declaration that M be deemed to have died within the testator’s lifetime. In its judgment the Court said (per Katininski J.) at p.318,
“ ... that it had long been recognised in English jurisprudence that a person who feloniously killed another could not take any benefit under the victim’s Will. The question, therefore, arose whether M should be deemed to have died within the testator’s lifetime. It was obvious that the testator had failed to foresee the contingency that he might be murdered by M. That, however, could hardly be said to be a contingency for which he might have been expected to provide. It did not constitute an omission from the Will which the Court would be justified in writing into it. The testator’s words were clear and precise. The gift to A could only be effective if M had died in the testator’s lifetime.”
The Court refused the declaration sought and held that the deceased had died intestate.
Counsel also referred to Aplin v. Stone {1904} 1 Ch 543 and In re Callaway. Callaway v. Treasury Secretary {1956) 1 Ch 559 to illustrate the principles that will guide the Court on the issue of striking out beneficiaries as the third alternative. It seems clear from these cases as well as those cited therein, that the Court will not willy nilly blot out or strike out a gift which is found to be null and void. The proper way of dealing with such case is first to construe the Will and ascertain the interests given so as to ensure that the alternative devisee or subsequent beneficiary is not disentitled because of the failed gift. Thus in Aplin’s case, the Court held that while the mother’s interest under a Will may have been held null and void because her husband had attested the said Will, (Section 15 of the English Wills Act) this factor alone did not strike the devise out of the Will, but only extend to finding an intestacy as to her share and which allowed her shares to be left to her children.
In this case, the same principle of law applies. The testator had clearly indicated that the gift over to his two children Vernon Emerson Amos and Anthony Robert Amos would take effect only if Mrs Prakash Wati Amos did not survive him for 180 days. Mrs Amos had survived. However there is no provision for what would happen if Mrs Amos survived the 180 days but barred from taking absolutely because of her felony. There is no contingency in the Will that contemplated the testator being murdered by Mrs Amos. That being the case, I believe that a void is created and this in law gives rise to an intestacy, for Mrs Amos can neither claim no take her specific bequest. I therefore find that the deceased’s estate indisposed of and passes into intestacy.
Intestacy having arisen, the next question is the identities of the beneficiaries. Under the terms of the Will, the two children of the testator and Mrs Prakash Wati Amos, Vernon Emerson Amos and Anthonly Emerson Amos, would have taken after their mother. However, given the finding of intestacy, the rights of these two sons arise independently of their mother, by virtue of section 6 (1) (d) of the Succession, Probate and Administration Act (Cap. 60). This sets out the succession to property on intestate. It provides that:
“(d) if the intestate leaves issue, but no wife or husband, the issue of the intestate shall take per stirpes and not per capita the whole estate of the intestate absolutely.”
There are also the two children of the testator from his previous wife, Jim Emerson Amos and Thomas Watson Amos both United States of America citizens and residing there. The testator had specifically excluded them from shares in the estate as they “have been provided for otherwise.” However, both Counsel agree both under Fiji’s intestate law, all the children of the deceased are entitled to shares in the estate as provided for under section 56 (1) (d) of the Succession, Probate and Administration Act. The Court agrees. While, as Counsel for the Defendants correctly pointed out, this goes against the specific wishes of the deceased, the Court, in finding that there is intestacy, can only follow though with the legal implication of such finding.
The final issue on which the Applicant sought direction from this Court is whether the 5th Defendant is entitled to a share in the estate. Anthony Aveenash Amos, the 5th Defendant, was adopted by the deceased and Mrs Amos on 29 April 1983. He was subsequently readopted by his natural mother on 2 September 1987 approximately 2 years after his adopter father the testator died. At the time of the testator’s death, the 5th Defendant was still his adopted son.
Clearly if this Court had held that the deceased had died testate, than the provisions of the Will would have excluded the 5th Defendant from the estate. However, having found in favour of intestacy, then the provisions of section 11 (2) of the Adoption of Infants Act (Cap. 58) would apply. The section provides:
“(2) Where, at any time after the making of an adoption order, the adopter or adopted person or any other person dies intestate in respect of any real or personal property that property shall devolve in any respects as if the adopted person were the child of the adopter born in lawful wedlock and were not the child of any other person.”
Given the facts submitted, the finding of this Court is that the 5th Defendant was the child of the testator at his death and that he equally is entitled to his shares of the estate under section 56 (1) (d) of the Succession, Probate and Administration Act.
In summary, the findings of this Court are as follows:
(1) That Prakash Wati Amos, the 1st Defendant, is prevented under section 35 of the Succession, Probate and Succession Act and the rule of public policy from acting as executrix of the estate of the deceased.
(2) That Prakash Wati Amos, the 1st Defendant, having been convicted of murder, is disqualified from taking any benefit either under the testator’s Will or on his intestacy.
(3) That Robert Emerson Amos (deceased) had died intestate.
(4) That Anthony Aveenash Amos now known as Anthony Aveenash Sahai is, by virtue of section 11 (2) of the Adoption of Infants Act, entitled to the estate.
(5) That by operation of law, all the children namely, Jim Emerson Amos, Thomas Watson Amos, Vernon Emerson Amos, Anthony Robert Amos, and Anthony Aveenash Sahai, are entitled under section 6 (1) (d) of the Succession, Probate and Administration Act to a share of the estate.
Directions
To give effect to the findings and ensure the efficient administration including the orderly and equitable distribution of the estate, the following directions is made:
I award costs of $1000.00 to the Applicant, and 3rd and 4th Defendant respectively, to be payed as disbursements out of the estate of the deceased.
F. Jitoko
JUDGE
At Suva
6 September, 2005
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