In re Estate of Vakarau [2012] FJHC 1204; HPP03.2010 (21 June 2012)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
PROBATE JURISDICTION

Probate Action No: 03 of 2010

IN THE ESTATE of SEKONAIA YABAKI VAKARAU Late of Lot 62, Drodrolagi Street, Makoi Housing, Nasinu, (hereinafter referred to as "the Deceased") who died Intestate.

Date of Ruling: 21st June 2012

RULING

[1]. This is the applicant's motion for an order that she be appointed as the administratrix of the estate of late Sekonaia Yabaki (hereinafter referred to as the deceased). In support of the motion an affidavit was filed by the applicant.

[2]. The applicant is the step daughter of the deceased who was married to one Mereani Veitokiyaki. Mereani died on 07.11.2004. The only issue of the marriage was one Sikiti Taraivosa who also died on 14.03.2004.

[3]. Manasa Koroinagalu (hereinafter referred to as the respondent) is a living issue of the deceased, but was born out of wedlock on 08.06.1961.

[4]. The applicant is the lawful daughter of the said Mereyani Veitokiyaki and had been living with the deceased as step daughter since her tender age. The applicant states that the deceased had stated his wish in writing to transfer his property situated 62, Drodrolagi Street, Makoi Housing, Nasinu to the applicant. Therefore, the applicant prays that she be appointed as the administratrix of the estate of the deceased.

[5]. Opposing the applicant's motion, an affidavit was filed by the respondent. In that affidavit he deposes that he is the biological son of the deceased. A copy of the birth certificate marked as 'A' is annexed to the affidavit. The respondent further deposes that the deceased Sekonaia had only two issues namely Manasa (the respondent) and Taraivosa Sikiti a female who predeceased the deceased.

[6]. It is further deposed that the deceased intended to transfer the said property to the respondent and the deceased voluntarily placed his thumb print on a transfer document which was witnessed by Talei G Cama a Commissioner for Oath. A copy of the transfer document marked as 'E' is annexed.

[7]. The respondent further deposes that he was not able to register the said transfer, because the title was withheld by one Ligarua Vuli and Kasanita Vuli and they attempted to fraudulently transfer the said property to them by forging the signature of the deceased. When it was detected by the respondent and the deceased, a complaint was lodged with the police and the transfer was cancelled. A copy of the cancellation and the title marked as 'F' and 'G' respectively is annexed to the affidavit.

[8]. Furthermore, the respondent deposes that since the applicant is not related by blood to the deceased her claim would be secondary to the respondent's claim. Therefore, the respondent prays that the Letter of Administration be granted to him.

[9]. In reply to the affidavit in opposition, the applicant filed another affidavit. In that affidavit she admitted the fact that the respondent is the bio logical son of the deceased, but stated that it is secondary to the love and affection she had towards the deceased for 30 years.

[10]. It is further deposed that the respondent had deliberately mislead the deceased and got the deceased to sign the Housing Authority Documents to transfer the property into the respondent's name.

[11]. In light of the above facts the main issue to be determined here is who should be appointed as the administrator, whether the biological son of the deceased or the step daughter of the deceased.

[12]. Granting of letters of administration is governed by section 7 of the Succession, Probate and Administration Act.

[13]. Section 7 of the Succession, Probate and Administration Act reads:

7. The court may grant administration of the estate of a person dying intestate to the following persons (separately or conjointly) being not less than 21 years of age-

(a) the husband or wife of the deceased; or

(b) if there is no husband or wife, to one or more of the next of kin in order of priority of entitlement under this Act in the distribution of the estate of the deceased; or

(c) any other person, whether a creditor or not, if there is no person entitled to a grant under paragraphs (a) and (b) resident within the jurisdiction and fit to be so entrusted, or if the person entitled as aforesaid fails, when duly cited, to appear and apply for administration.

[14]. The wife of the deceased died on 07th November 2004. Therefore, court has to act in terms of section 7 (b) of the Act. The next of kin in order of priority of entitlement under the Act therefore, is the respondent who is the bio logical son of the deceased. The applicant who is the step daughter of the deceased shall not get priority over the respondent.

[15]. A Letter of Administration is granted for the purpose of the administration of the estate of a person who died intestate. Only if there is no person entitled to a grant under section 7 (b) and (c) of the Act, then court can issue a letter of administration to any other person under section 7 (c) of the Act. In the present case, the biological son of the deceased has asked for letter of administration. Hence, it is not necessary to appoint any other person under section 7 (c) of the Act.

[16]. Therefore, acting under Section 7 (b) of the Succession Probate and Administration Act, I order that the letter of administration in respect of the estate of late Sekonaia Yabaki be granted to the respondent.

[17]. Considering the nature of the application and the circumstances under which the same was made, I make no order for costs.

Pradeep Hettiarachchi
JUDGE

At Suva
21st June 2012