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In re Alifereti Veimosoi [2010] FJHC 333; HBP62.2010 (14 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA


HBP No. 62 of 2010


IN THE MATTER of ALIFERETI VEIMOSOI f/n Taraiasi Veimosi (Deceased)


AND:


IN THE MATTER of an application pursuant to section 35 of the Fiji National Provident Fund (FNPF) Act (Cap 219)


RULING


INTRODUCTION


  1. Alifereti Veimosoi (“deceased” or “Veimosoi”) had been a member of the Fiji National Provident Fund (“the Fund”). He passed away on 19th of April 2009 at the age of 46 years. At the time of his death, there was a sum of $10, 602.15 (“the sum”) standing in Veimosi’s account with the Fund. As Veimosoi left no nomination, the Fund, on 04th of March 2010, paid out the sum to the High Court pursuant to section 35 of the FNPF Act (Cap 219). On 21st April 2010, the High Court ordered that the Public Trustee of Fiji be retained and that the sum be paid to that Office to be invested in its discretion pending further order of the Court.

MILIAKERE VEIMOSOI


  1. Then on 13th of May 2010, a Notice of Motion was filed by Miliakere Veimosoi (“Miliakere”), the deceased’s mother, seeking the following orders:
  2. A sworn Affidavit of Miliakere is filed in support of her application. According to her, the deceased is survived by:

SENIEVO BUNA


  1. Veimosoi was married to one Senievo Buna. Buna however left Veimosoi and had been living with another man for some time when Veimosoi died. On the 4th day of June 2010, Buna confirmed in Court that she had been in a defacto relationship with another man for some three years or so when Veimosoi died. Buna also confirms in Court that since Veimosoi died, the two children are being wholly maintained by Miliakere. Buna continues to live in a defacto relationship with that other man to this day.
  2. It appears from a letter addressed to Buna dated 20th April 2010 by the General Manager and CEO of the Fiji National Provident Fund that Buna had been communicating with the Fund and making a claim on the sum.

THE LAW


  1. Veimosoi died intestate. The question arises as to how the sum is to be distributed has arisen. Section 43(2) of the Fiji National Provident Fund Act states as follows:

(2) Notwithstanding the provisions of any other written law, all moneys paid out of the Fund on the death of any member of the Fund shall be deemed to be impressed with a trust in favour of the person nominated under the provisions of section 34 by the deceased member or, if no such person has been nominated, the person or persons determined by the Court in accordance with the provisions of subsection (1) of section 35 to be entitled thereto and shall be deemed not to form part of the deceased member's estate nor to be subject to his debts. (Amended by Act 9 of 1974, .s,' 16.)


  1. Section 35(1) of the Act simply states as follows:

Procedure where there is no nominee or a minor nominee


35.—(1) If, at the time of the death of a member of the Fund, there is no person nominated under section 34 the Board, on being notified of the death of the member, shall pay into Court the amount standing to the credit of the member in the Fund for disposal in accordance with the law.


  1. Hence, the law in Fiji is: where a deceased member of the Fund has left no nomination, any monies standing in his or her account with the Fund does not form part of his or her estate and must therefore be disposed of in accordance with the law.
  2. This means that distribution will have to be done in accordance with the laws of intestacy in the Succession Probate and Administration Act[1] (Cap. 60) (hereinafter “Succession Act”).

Succession Act (Cap 60) as Amended


  1. Section 6 of the Succession Act as amended by section 3 of the Succession, Probate and Administration (Amendment) Act 2004[2] provides as follows:

6.-(1) Subject to the provisions of Part II[3], the administrator on intestacy ..... shall hold the property as to which a person dies intestate ...... on trust to distribute the same as follows:


(a) if the intestate leaves a wife, or husband, without issue, the surviving wife or husband shall take the whole of the estate absolutely, and-


(b) .......................


(c) if the intestate leaves issue, the surviving wife or husband shall, take the prescribed amount and the personal chattels and one third only of the residuary estate absolutely, and the issue shall take per stripes and not per capita the remaining two-thirds of the residuary estate absolutely;


(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; (my emphasis)


(e) .......................


(f) if the intestate leaves no issue, but one parent only then, subject to the interests of a surviving wife or husband, the surviving father or mother shall take the residuary estate of the intestate absolutely;


(g) .......................


(h) if the intestate leaves no husband or wife and no issue or parents, then the brothers and sisters of the whole blood, and the children of deceased brothers and sisters of the whole blood of the intestate shall take the whole estate of the intestate absolutely in equal shares, such children taking per stirpes and not per capita;


  1. The “prescribed amount” in terms of section 6(1) (c) is $20,000[4].

ANALYSIS


  1. Clearly, on the intestacy distribution laws as set out above in section 6(1) (f), the intestate’s parent will only be entitled to a share if the intestate leaves no issue. And even then, the parent will take his or her share subject to that of the surviving spouse of the intestate. In this case, Veimosi has left two surviving issues which means that Miliakere is to be ruled out from sharing in the funds.
  2. Veimosoi’s three brothers are also not entitled to share in the funds. Under section 6(1)(h), the brothers can only be entitled to a share if Veimosoi had left no surviving issue, wife or parent.
  3. A surviving spouse, by virtue of section 6(1)(c), is entitled firstly to the prescribed sum of $20,000. In addition to that, she will be entitled to one third of the residuary estate.
  4. The way section 6(1)(c) is worded means that the surviving spouse is entitled to a first cut of $20,000. If there is any residual balance after that first cut, then it is to be distributed as follows: the surviving spouse is to further get one third share and the issues to share in the remaining two thirds.
  5. In this case, the sum standing in the intestate’s estate is below $20,000. Normally, by virtues of section 6(1)(c), the surviving spouse would be entitled to the entire sum.

“Surviving Wife”


  1. Buna remained married to Veimosoi until his death. However, I ask whether she should be entitled to the whole sum of $10, 602.15 given that, firstly, she had left Veimosoi for another man and had been separated from Veimosoi for some three years or so at the time of his death and, secondly, that she had left the children behind with Veimosoi to look after.
  2. In asking that question, I guess the issue is whether Buna rightly qualifies as a “surviving wife” within the contemplation of section 6(1)(c) of the Act.
  3. It is difficult to think of an all-encompassing definition of the phrase “surviving wife” as it appears under section 6(1) (c) of the Succession Act as amended.
  4. In this case, it is fact that Buna abandoned and deserted Veimosoi and their two children to live in adultery/a de facto relationship with another man. Does that operate as a bar to her right of inheritance in Veimosoi's estate?
  5. In some jurisdictions, express statutory provisions do not permit a "surviving wife" to succeed to her husband's estate if she has abandoned him or left him to live in adultery. However, Fiji's Succession Act does not define the term "surviving wife", nor does it contain any provision to disallow a "surviving" spouse from inheriting in her deceased husband's estate if she had abandoned the latter to live in adultery. Notably, the Act does not contain any provision either that "preserves" such right of inheritance of such a "surviving" wife.
  6. In my view, that merely leaves the term "surviving wife" as it appears in section 6(1)(c) open to judicial interpretation.
  7. So, does a "wife" who had abandoned her husband and children to live in adultery or in a de facto relationship with another man (even though she remained lawfully married to the husband until the death of the latter) abrogate her right of inheritance in the husband's estate under our intestacy laws?
  8. I have searched for local case law authority on this point but to no avail. My short answer to the above question is that, in my view, considering that Buna had abandoned her children and Veimosoi (late husband) for some three(3) years or so and had lived in a de facto relationship with another man, she does not qualify as a "surviving" wife within the meaning contemplated under section 6(1) (c). Therefore, she does not stand to succeed from Veimosoi's estate under section 6(1) (c).

ORDERS


  1. In the particular circumstances of this case as stated above, I order that the monies standing to the credit of Veimosoi and presently held by the Public Trustee:

Anare Tuilevuka
Master


At Suva
Dated 14th of July 2010.

[1] see In re Narendra Prasad FNPF (57/1982) as per Kermode, J; M. v. Attorney-General (1985) as per Cullinan, J; In re Mohammed Hassan [1989] FJHC 32; [1989] 35 FLR 107 (21 June 1989) as per Fatiaki J.

[2] effective from 1st September 2004 as per Legal Notice 59 of 2004.

[3] Part II concerns matters of the jurisdiction of the Court.

[4] as per section 3(c) of the Succession, Probate and Administration (Amendment) Act (No. 11 of 2004).

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