In re Jovilisi Qoroya (Infant) [2011] FJHC 607; HBM111.2011 (28 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA

Miscellaneous Cause No 111 of 2011

IN THE MATTER
of the Succession, Probate and Administration Act, Cap 60.

AND

IN THE MATTER of an infant
JOVILISI QOROYA
of Lot 32 Painapiu Street, Nakasi, Nasinu,
Student (hereinafter referred to as "the Infant")

BEFORE: MASTER DEEPTHI AMARATUNGA

COUNSELS: Mr Nelesh Prasad for the Applicant
No appearance for the Public Trustee though the summons were served to them.

Date of Hearing: 26th and 27th of September, 2011

Date of Ruling: 28th September, 2011

RULING

1. INTRODUCTION
   

1. This is an application made by way of originating summons and the summons state the application is made in terms of Section 16 of the Succession, Probate and Adminstration Act and Order 8 rule 3 of High Court rules of 1988. The applicant is seeking an order of the court to appoint to appoint Public Trustee Ccorporation Ltd as the trustee of an infant, who is a beneficiary of an estate because the Public Trustee has refused to act as a trustee without a court order to that effect.
   

2. FACTS
   

2. The originating summons was filed on the 30th of August, 2011 seeking an order that Fiji Public Trustee Corporatioin Limited be appointed as the Trustee of an infant's property namely for a sum of FJ$36,864.73 being the child's entitlement from the estate of late Sereseini Tukai Cordukes and to hold the said fund as the trustee till the child reaches the age of 21 years.
   
3. This application was made to the court as the lawyers for the applicant has received a letter from Legal Officer of the Fiji Public Trustee Corporation Limited dated 13th July, 2011 requesting the applicant to seek a court order to accept the money as the trustee. The full letter is reproduced below for reference purposes:
   

13th July 2011

Mitchell Keil Lawyers

10 Gorrie Street

GPO Box 1056

SUVA

Dear Sir,

RE: LETTERS OF ADMINISTRATION

CASE NO. 2010/000 89615 – ESTATE OF LATER SERESINI TUKAI

CORDUKES

INFANT BENEFICIARY – JOVILISI QOROYA

_______________________________________________________________

The above refers.

We wish to acknowledge receipt of your correspondence dated 12/07/11.

Upon your enquiry, we also wish to inform you that we can act for the infant child, Jovilisi Qoroya and hold the fund in trust for him until he reaches the age of 21 years old.

However, to be able to do the above, the administrator and trustee of the deceased's estate will have to seek further orders from the honorable court to appoint Fiji Public Trustee Corporation Limited to be the trustee of the trust fund of the minor person.

Once, that is done, the infants' money can then be paid directly to our office with the copy of the court order granted by the court.

We thank you for taking the first opportunity of liaising with our office on the matter.

Thank you.

Yours faithfully,

Adi Kolora Naliva

Legal Officer

For: Chief Executive Officer

Fiji Public Trustee Corporation Limited

(emphasis is added)

4. The Fiji Public Trustee Corporation was served with the originating summons but they did not appear in court.
   
5. The lawyer who appeared on behalf of the applicant was unable to show me the provision on which the court is empowered to make an order in terms of the originating summons, but categorically stated that all their efforts to convince the Fiji Public Trustee to accept the money as the trustee of the infant had met with the stiff opposition from the Public Trustee and the applicant was unable to withdraw this application though they do not have a status to make this application under the law.
   
6. Mr. Nilesh Prasad who appeared for the applicant conceded that there is no provision in law for them to seek an order that was sought in the originating summons, but explained the predicament that they had faced upon the insistence of the Fiji Public Trustee, to obtain a court order when there is no provision either under Public Trustee Act or under Probate, Succession and Administration Act.
   
7. It is to be noted that no provision of the law was cited either by the Public Trustee in its letter to the lawyers for the applicant dated 13th July, 2011, or by the applicant in the hearing of this summons which empowers the court to make such an order, when there is a clear provision contained in Section 16 of the SuccessionProbate and Administration Act [Cap 60].
   

100. LAW
     

8. The originating summons indicates Section 16 of the Succession Probate and Administration Act [Cap 60] and Order 8 rule 3 of High Court rules of 1988. The procedure relating to originating summons is dealt in order 8 which needs no elaboration here.
   
9. Section 16 of the Succession Probate and Administration Act [Cap 60] states as follows:
   

'Power to appoint trustees of infant's property

16.-(1) Subject to the provisions of subsection (5), where an infant is absolutely entitled under the will or on the intestacy of a deceased person who dies before or after the commencement of this Act to a devise or legacy, or to the residue of the estate of the deceased, or any share therein, and that devise, legacy, residue or share is not, under the will, if any, of the deceased devised or bequeathed to trustees for the infant, the personal representative of the deceased may appoint a trustee corporation or 2 or more individuals not exceeding 4 (whether or not including the personal representative or one or more of them) to be the trustee or trustees of that devise, legacy, residue or share for the infant, and may execute or do any assurance, act or thing requisite for vesting that devise, legacy, residue or share in the trustee or trustees so appointed.

(2) On the vesting of the devise, legacy, residue or share, mentioned in subsection (1) in the trustee or trustees appointed under the provisions of that subsection, the personal representatives as such are discharged from all further liability in respect of that devise, legacy, residue or share.

(3) Trustees appointed under the provisions of subsection (1) may retain any property, transferred to them pursuant to the provisions of this section, in its existing condition or state of investment, or may convert it into money, and upon conversion shall invest the money in any of the securities or property authorised for the investment of trust funds.

(4) Where a personal representative has, before the commencement of this Act, retained or sold any such devise, legacy, residue or share as is mentioned in subsection (1), and has invested it or the proceeds thereof in any investments in which he was authorised to invest money subject to the trust, then, subject to any order of the court made before that date, he shall be deemed not to have incurred any liability on that account or by reason of not having paid or transferred the money or property into Court.

(5) The power of appointing trustees conferred upon personal representatives by this section is subject to any direction or restriction contained in the will of the deceased.

10. It is clear that in terms of the above provision the personal representative of the child can appoint the trustee corporation. The above section in detail lays down the functions of the trustee as well and there is no ambiguity on that issue.

11. The words 'personal representative' and 'trustee corporation' are also defined in the Succession Probate and Administration Act [Cap 60] in the interpretation Section of the Act (Section 2) as follows:

"personal representative" means the executor, original or by representation, of the will, or the administrator of the estate for the time being, of a deceased person;

"trustee corporation" has the same meaning as in the Trustee Act;(Cap 65)

12. The Trustee Act defines the Trustee corporation as the Public Trustee and it is clear that there is no necessity for a court order 'to appoint the Public Trustee Corporation Limited to be the trustee of the trust fund of the minor person' as stated by the Legal Officer of the Fiji Public Trustee Corporation Limited. The Section 16 of SuccessionProbate and Administration Act [Cap 60] should be followed and the appointment of the trustee has to be done by the personal representative as defined in the Act.

13. This is totally unnecessary, and a waste of time and resources for both court and the applicant, and specially when a public body that is entrusted with the minor's interest is acting like this this would invariably incur cost to the minor's fund and certainly would not be in the best interest of the child and would also leads to clear abuse of process, as well. I need to mention that another application filed by the Fiji Public Trustee, namely HPP 28 of 2011 was withdrawn on 22nd September, 2011 by the counsel when I pointed out that there was no need of a court order in that case and it has become a practice to refer the matters to court without following the law and this must not continue as this is clearly not in the best interest of the beneficiaries and unnecessary costs would incur that would diminish their respective funds in the hands of Public Trustee or with respective parties who are entrusted to deal with such fund.

4. CONCLUSION
   

14. There is no need for a court order to act as a trustee of a minor in terms of Section 16 of Succession Probate and Administration Act [Cap 60]. When applications of this nature is made on the request of Public Trustee the funds of the minors would invariably incur unnecessary cost, which would not be in the best interest of the child and should not be repeated. Considering the circumstances I will not order a cost, though this application would necessarily be struck out.

The Final Orders:

• The summons is struck off with no cost.
  

Dated at Suva this 28th Day of September, 2011.

..............................
Mr D. Amaratunga
Acting Master of the High Court
Suva