Ernst v Tagici [2012] FJHC 843; HPP07.2011 (31 January 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

CASE NUMBER: HPP 7 OF 2011

BETWEEN:

ANNETTE ERNST
PLAINTIFF

AND:

NIONI TAGICI
DEFENDANT

Appearances: Mr. Nilesh Prasad for the plaintiff.
No appearance of the defendant.
Date of Hearing: Monday, 30th January, 2012 at Suva
Date / Place of Judgment: Tuesday 31st January, 2012 at Suva.
Coram: The Hon. Justice Anjala Wati.
___________________________________________________________________________

JUDGMENT

CATCHWORDS:
PROBATE ACTION – initially two applications lodged, by both parties to this proceedings – plaintiff claims that defendant cannot administer the estate of deceased or gain benefits from the same as she has been convicted of the murder of the deceased – proceedings undefended – prohibition on a convicted person from gaining benefits from the estate of the deceased – the limits of the prohibition- Order made for grant to be made in favour of the plaintiff.

LEGISLATION:
Succession, Probate and Administration (Amendment) Act No. 11 of 2004: s.49A.
The High Court Rules, 1988: Order 76 Rule 2.

1. The plaintiff 's claim is for issuance of a grant in her favour to administer the estate of the deceased JURGEN ALFRED MIERKE and for the defendants application vide LA No. 49391 to be refused on the grounds that the defendant, being the wife of the deceased, was found guilty and convicted for the murder of the deceased.
   
2. The plaintiff claims that the deceased is a German citizen and at all times was domiciled in Germany. She states that she is the lawful sister of the half blood of the deceased and that the Courts of Germany has made the following orders pursuant to which, she is now the sole beneficiary of the estate of the deceased:-
   
   • (a) By certificate of inheritance issued by the Amtsgericht (Local Court) Ref No. V1 4227/09 Erlangen, Germany on 3rd September, 2009 where Irmgard Reese born on 21/01/1916 was appointed as sole beneficiary of the estate of Jurgen Alfred Mierke; and
     
   • (b) By certificate of inheritance issued by the Amtsgericht (Local Court) Ref No. 8 V1 139/09 Schwerte Germany on 30th September 2009 where the plaintiff appointed was as sole beneficiary of the estate of Irmgard Reese who died on 28th July 2009.
     
3. On 18th November, 2009 the defendant made an application for Letters of Administration to be issued to her. The application was encumbered by a caveat filed by the plaintiff. The caveat was granted case number 10 of 2009.
   
4. On 28th May, 2010 the plaintiff made an application for probate in the estate of the deceased and the application was assigned number P50037.
   
5. On the 7th day of February, I had given an administrative direction that neither party can be issued with a grant for failure to comply with the rules. My observation was that if the wife wanted to proceed with her application, she should have applied for removal of the caveat. Alternatively, if the plaintiff wanted to proceed with her application, she should have filed a probate action under Order 76 Rule (2) of the High Court Rules 1988. I had noted that since the issue revolved around one major point of whether a convicted person can administer the estate, the filing of the probate action could be tried on affidavits. I had then left the parties to take an appropriate course of action.
   
6. Following the direction, the plaintiff filed this action.
   
7. On 9th March, 2011, the defendant's solicitor filed an acknowledgement of service of the writ and thereafter took no action. The matter was therefore heard undefended.
   
8. Mr. F. Keil, a senior practitioner at the Fiji Bar gave evidence. His main testimony indicates that the defendant wife has been convicted of the murder of the deceased and that the plaintiff is entitled to the estate as she has already been appointed as the sole beneficiary in the estate of the Irmgard Reese by the German Court. Irmgard Reese was initially appointed as the sole beneficiary in the estate of the deceased and upon her death the estate benefits devolves by law to the plaintiff.
   
9. The issue before the Court is simple. S.49A of the Succession, Probate and Administration (Amendment) Act No. 11 of 2004 prohibits a beneficiary from taking any benefit from the estate of the deceased if the beneficiary is convicted of the murder of the deceased. S.49A in full reads:-
   

"49A. The forfeiture rule under common law that prevents a beneficiary or next of kin from taking any benefit from the estate of the deceased applies only if the beneficiary or next of kin is convicted of the murder, manslaughter, accessory to murder or manslaughter or conspiracy to commit murder or manslaughter of the deceased person, under the laws of Fiji or of any other country."

10. The question here is whether the defendant must be prohibited from obtaining a grant. The law specifically prohibits the convicted person from deriving any benefits of the estate. Should this prohibition be extended to prohibiting a grant to her?
    
11. I find the answer in the affirmative. The defendant is convicted and imprisoned for a minimum period of 12 years as per the evidence. I do not know whether the conviction or the sentence is on appeal. It is for the defendant to tender evidence on this aspect. Even if the conviction and sentence is on appeal, the estate cannot be left unadministered in the interim.
    
12. The law has confined the movements of the defendant, who is not free to administer this estate or her personal affairs or any estate for that matter. It is therefore unrealistic to issue a grant in her favour and burden her with what she cannot do.
    
13. Estate management does not only involve paper work. It requires physical attendance to various places and offices for actual work to be carried out. With this defendant, that is out of question.
    
14. This defendant cannot do justice to the sole beneficiary and the estate if she is given to manage the estate.
    
15. Further, the plaintiff is the sole beneficiary and she should be allowed to manage the estate in the manner she wishes. She knows what is in her interest and she can work accordingly. There can never be any further litigation by the beneficiary on the trustee arising out of this estate. At least one issue will have finality.
    
16. For the reason enunciated above I order that the plaintiff be issued with a grant via her application number P 50037. The defendant's application for the Letters of Administration vide LA 49391 must be refused.
    
17. The plaintiff must bear her own cost of this proceeding.
    
18. Orders accordingly.
    

Anjala Wati
Judge

31.01.2012.

To:

1. Mitchell Keil Lawyers, counsel for the plaintiff.
2. Kevueli Tunidau Lawyers, counsel for the defendant.
3. High Court Probate Registry, Suva; File LA Nos: 49391; P50037; and Caveat No: 10 of 2009.
4. File: HPP 7 of 2011.