Chung Mei Tsang v Liu Chung Pei [2010] FJHC 424; Civil Action 09 of 2010 (15 September 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

CIVIL ACTION NO. 09 OF 2010

IN THE MATTER of the ESTATE of MARY AGNES LIU MAN LING
late of Bexley in the State of New South Wales, Australia. Deceased

AND

IN THE MATTER of an application for grant of special Letters of Administration in
respect of the estate pursuant to section 32 of the Succession Probate and Administration Act, Cap 60.

BETWEEN:

DOROTHY CHUNG MEI TSANG
aka DOROTHY CHUNG MEI LIU aka LIU CHUNG MEI
of 209 Doncaster Avenue, Kingsford, NSW 2032, Australia, Accountant.
Applicant

AND:

PAUL LIU CHUNG PEI
of whereabouts unknown to the applicant occupation unknown to the applicant
Respondent

Before: Master Anare Tuilevuka
Counsels: O'Driscoll & Company for the Applicant

Date of Hearing: 26th and 27th August 2010.
Date of Ruling: 15th of September 2010.

DIRECTIONS

PRELIMINARY

[1]. On Friday 10th of September 2010, I was to have delivered a written ruling on this case. I was not able to but I did announce in Court that I was inclined to grant order in terms of the application but will circulate my written ruling within the following week.

[2]. This is the written ruling I promised. However, having revisited the documentation filed in this case, I now recall my verbal comments. My reasons follow.

INTRODUCTION

[3]. The application before me is an originating summons filed on 16th April 2010 by Messrs O'Driscoll & Company. They seek an Order that Chung Mei ("Mei") be granted special letters of administration in the estate of her late mother, Mary Agnes Liu Man Ling ("Ling"). The application has been filed by Robert Milton Greer (Mei's lawful attorney by virtue of Power of Attorney No. 51067). It is made pursuant to section 32 of the Succession Probate and Administration Act Cap 60 and on the Court's inherent jurisdiction.

SECTION 32

[4]. Section 32 states as follows:

Special letters of administration if executor or administrator not within jurisdiction

32.-(1). If, at the expiration of 3 months from the date of grant of probate or administration of the will or estate of any deceased person, the executor to whom probate has been granted, or the administrator, is residing out of Fiji, the court may, upon the application of any creditor or person interested in the estate, grant to the applicant special letters of administration of the estate of such deceased person, with limited or unlimited powers.

(2) The applicant shall satisfy the court that the executor or administrator is resident out of the jurisdiction, and that the applicant is thereby delayed in recovering or obtaining payment of moneys, or the possession of goods and chattels, or real estate to which he is by law entitled, or that the estate is liable to loss or waste.

[5]. Obviously, amongst the applicants within the contemplation of section 32, is the beneficiary under an estate who is being delayed in possessing land to which he is entitled by virtue of the fact of the executor being resident out of Fiji.

[6]. Mei's application portrays herself as such an applicant. Probate of Ling's Will was granted by the Supreme Court of New South Wales, Australia to her son, Chung Pei ("Pei" - Mei's brother) in 1989. Since then, the estate has remained unadministered.

[7]. Essentially then, Mei seeks a grant of special letters of administration under section 32 to enable her to sign a transfer to herself of Lot 25 on DP No. 4103 in the District of Serua on the island of Viti Levu and comprised in Certificate of Title No. 16512 ("Lot 25").

OBSERVATIONS

[8]. It is trite that, to succeed in her application, Mei must first and foremost re-trace convincingly to the Court her entitlement to Lot 25 under the estate. To do so, she must establish that the probate granted to Pei was of a Will which bequeaths Lot 25 to her.

[9]. Once that preliminary step is satisfied, Mei must then go on to satisfy the following other ingredients of section 32 (which are not at issue in this case):

• (i) that, at least 3 months has expired from the date of grant of probate of the will or estate.
  
• (ii) that the executor or administrator is residing out of Fiji.
  
• (iii) that she is by law entitled to possession of Lot 25 but to which possession she is being delayed.
  

[10]. For the usual case, satisfying the preliminary step will be a given. For the most part, it would simply entail producing duly certified copies of documents which are already part of official records at the Probate Registry of the High Court of Fiji, in particular, a copy of the Will and the probate granted on it.

[11]. However, the manner in which Mei's case has been presented to this Court falls short of meeting even this preliminary step. Having carefully reviewed the affidavits filed, it is my view that the trail of documentation and evidence in Mei's case as presented before me fall short of establishing convincingly her interest in Lot 25. I discuss my reasons below.

INTEREST IN THE PROPERTY IN QUESTION

[12]. To reiterate, the application was filed by Mei's lawful attorney in Fiji, namely Greer. Greer has sworn and filed an affidavit in support. Clearly, the authority to swear this affidavit must be incidental to his powers under clauses 3 and 5 of Power of Attorney No. 51067 to institute proceedings for and on behalf of Mei (copy of power of attorney is annexed to his affidavit).

[13]. However, Greer's affidavit is lacking in many respects. For example, in paragraph 4, he deposes that "probate pursuant to the will of Mary Agnes Liu Man Ling was granted to Paul Liu Chung Pei" ("Pei"). Neither the probate nor the Will in question is annexed to his affidavit.

[14]. That a probate was indeed granted to Pei, I do not doubt. I base that on my observation that CT 16512 (of Lot 25 - a copy of which is annexed to Greer's affidavit) records inter alia a Transmission By Death to Pei "as Sole Executor and Trustee" and which transmission was registered on 5th of November 1990 at 11.00 a.m.

[15]. But having observed that, I still query whether the probate granted to Pei is of a Will of Ling that bequeaths Lot 25 to Mei?

[16]. Greer's affidavit as I have stated, does nothing to assist the Court on this point. And when I queried about this in Court on Thursday 26th August 2010, Mr. O'Driscoll responded by filing on Friday 27th August 2010 a "supplementary affidavit" sworn by his clerk, Mr. Paula Nepote on the same day.

[17]. Apart from the inappropriateness of Nepote swearing and filing that affidavit, the affidavit would not have assisted the Court anyhow in resolving the issues.

[18]. The documents annexed to Nepote's affidavit are: firstly, an uncertified photocopy of an affidavit of Chung Pei sworn on 14th December 1990 and, secondly, three uncertified pages of a document purporting to be the last will and testament of Ling with the last page missing (where the testator (Ling) should sign and date the Will in the presence of witnesses).

[19]. Pei's affidavit says nothing about Mei's entitlement to Lot 25. Nor does it annex the Will on which it was granted. The affidavit appears to have been filed pursuant to an application to reseal the grant in Fiji.

[20]. As for the Will annexed to Nepote's affidavit - yes, I concede that according to Clause 5[1] of the said "Will", Lot 25 is bequeathed to Mei. But there is nothing in the affidavit to establish that this is the Will on which the probate to Pei was granted. In fact, Nepote has not even tried to make a deposition to that effect. He merely annexes the two documents (affidavit and Will). In fact, having said that, I note that to this day, the applicant has not even produced to me a copy of the probate. I have merely accepted that Pei was indeed granted a probate from the notations on CT 16512 (see paragraph 14 above).

[21]. But while I am prepared to accept that a probate was granted to Pei, I am not prepared to presume that the Will annexed to Nepote's affidavit (which is not duly certified and has crucial pages missing) is the Will on which probate to Pei was granted? For all I know, the probate could have been granted on a subsequent Will of Ling which revoked the one annexed to Nepote's affidavit.

[22]. Frankly, that means that Mei's interest in the estate remains unestablished.

NEXT STEP

[23]. I will not dismiss the application. Rather, I will give Mei another chance to file a supplementary affidavit to establish that the Will concerned was indeed the same one on which the probate to Pei was granted.

[24]. I imagine that most if not all of the relevant documentation would be available from the records of the Office of the Registrar of Titles and/or the Probate Registry of the High Court.

[25]. I mention the office of the Registrar of Titles because Pei's application for Transmission by Death of CT 16512 (Lot 25) would have been lodged at that Office. In filing his application, Pei would have had to furnish supportive documentation as required under section 93(2)[2] of the Land Transfer Act (Cap 131). I imagine that principal amongst the supportive documentation that the Registrar of Titles would have required of Pei would have been the New South Wales probate with Will annexed and also evidence that the said probate had been resealed in Fiji pursuant to section 45 of the Succession, Probate & Administration Act (Cap 60).

[26]. I mention the Probate Registry of the High Court because that office would have handled Pei's application to reseal in Fiji the New South Wales grant.

[27]. If these records were all put before me and duly certified by the above offices, I would have no hesitation in granting order in terms.

CONCLUSION

[28]. As it is, there is no probate before me. All I have before me is an uncertified copy of a Will with some pages missing. I do not know when the Will was made. I also do not know if it was signed by the testator before two witnesses. I do not know if this was the Will on which the probate was granted to Pei.

[29]. I will adjourn this case to Wednesday 22nd of September 2010 at 9.30 a.m. when I will give directions in Court on the filing of a supplementary affidavit.

Anare Tuilevuka
Master

At Suva.
15th September 2010.

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^[1] 5. I GIVE my land at Fiji Island being part of the Pacific Hotel Development subject to payment of any mortgage debts secured thereon at the date of my death to LIU CHUNG MEI PROVIDED THAT she survives me by thirty (30) days PROVIDED FURTHER THAT if she shall fail to attain a vested interest leaving issue surviving me and her such issue shall take the share that she would have taken under this clause:

1. the powers of a trustee for sale;
   
2. to sell lease exchange or otherwise dispose of assets in my estate on such terms as they consider expedient as though they were the absolute beneficial owners thereof;
   

100. to postpone the sale calling in and conversion of any part of my residuary estate for such period as they may in their absolute discretion think fit without being liable to account notwithstanding that it may be of a wasting speculative or reversionary nature;
     

4. to invest and change investments freely as if they were the beneficial owners thereof AND I DECLARE that this power includes the right to invest in any loan whether secured or unsecured and whether with or without interest or in non-income producing assets including property for occupation or use by a beneficiary;
   
5. to apply as they think fit the whole or any part of the income or capital to which any beneficiary hereunder is entitled or may in future be entitled in or towards the maintenance education welfare and benefit of such beneficiary who shall bring into account the payments received under this sub clause on becoming absolutely entitled AND my executors shall be empowered to make any payment under this sub-clause to the person having the care or custody of such beneficiary hereunder without being liable to see to the application thereof;
   
6. to appropriate without the consent of any beneficiary.
   

^[2] Section 93(2) requires that any application for registration by transmission must be supported by “the production to the Registrar of the original or certified true copies of all documents under which the applicant claims to be entitled to such estate or interest”.