Samou v Estate of Allinson [2014] FJHC 119; Probate Action 37.2012 (5 March 2014)

IN THE HIGH COURT OF FIJI AT SUVA
PROBATE JURISDICTION
Probate Action No. 37 of 2012

Between:

Salome Samou
Plaintiff

And:

Estate of Leslie Allinson
First Defendant

And:

Williams and Gosling Limited
Second Defendant

And:

Graeme Frost
Third Defendant

Appearances: Mr P. Sharma for the plaintiff
Mr T.Tuoitoga for the first defendant
Date of hearing: 12th August,2013

JUDGMENT

1. By summons dated 17 December,2012,Penny Allinson seeks that the plaintiff's action be struck out under Or 12 r7 of the High Court Rules and section 47 of the Succession, Probate and Administration Act. The summons also sought the following orders:
   
   1. An Order discharging the Restraining Order granted on 3 August 2012 in File No. 12/SUV/0397 of the Family Division of the Magistrates Court in Suva.
      
   2. A Declaration that this Honourable Court has no jurisdiction whatsoever over the property and/or the affairs of the late Leslie Allinson in any other part of the world including Australia.
      
   100. An Order for the removal of Caveat No. 44 of 2012 lodged by the Plaintiff on 16 October 2012 against the grant of Probate.
        
   4. An Order that Probate herein be granted to Penny Allinson as the Executrix and Beneficiary under the last Fiji Will of Leslie Allinson dated 28 July 2010.
      
   5. Costs on an indemnity basis ..
      

The application is made on the grounds that the first defendant has been improperly joined; this is not a probate action; the plaintiff has no rights over the assets of the late Leslie Allinson, as the parties separated in 2001; the "last Fiji Will" of the deceased only affects the property in Fiji and operates independently of his Will in respect of property in Australia.

2. In an affidavit in support of her summons, Penny Allinson states that:
   
   • She is the executrix and beneficiary under the last Wills of Leslie Allinson.
     
   • In 1993, the deceased purchased property in Lami; in October,2009, he transferred an undivided share of that property to the plaintiff; in August,2012; the property was sold for $65,000 and 50% of the sale proceeds was paid to the plaintiff.
     
   • Following the separation from the plaintiff, the deceased loaned the plaintiff a substantial amount of money. These monies are outstanding.
     
   • The deceased purchased a property at Rag Avenue for business property.This did not involve the plaintiff.
     
3. The plaintiff, in her affidavit in reply, states that she commenced this action, as her de facto husband Leslie Allinson did not make provision for her in his last Will, though she was financially dependent on him during their relationship and did not undertake employment, at his request. She sets out in great detail, the relationship she had with the deceased and her contributions as a de facto wife. She states that the deceased asked her to keep the monies loaned, as stated in an email attached to the affidavit in support of the summons. In Australia, the deceased had only a bank account of AUD$ 1,040,075.95. The plaintiff moves that the application to strike out be dismissed with costs on an indemnity basis.
   
4. The determination

4.1 At the commencement of the hearing, Messrs N.Prasad and R. Singh, counsel for the second and third defendants sought my permission to leave court, as this application did not concern their clients. I allowed the application.

4.2 Mr Tuoitoga, counsel for Penny Allinson rested his case on three grounds. His first proposition was that the first defendant has been improperly joined, since probate has not been granted in the estate of Leslie Allinson. The second was that this is not a probate action within the meaning of Or 76,r 2. He argued that the action should be in equity not a probate case, since the plaintiff's relationship with the deceased ended in 2001. Finally, Mr Tuoitoga submitted that this court has no jurisdiction over the deceased's assets in Australia.

4.3 Mr Sharma, counsel for the plaintiff in response submitted that this action has been filed against the Estate of Leslie Allinson, since an application for Letters of Administration was made in respect of that estate by Penny Allinson, as evidenced in her affidavit in support. On the second argument, he submitted that a challenge to a probate is a contentious matter which comes within Or 76,r 2. Alternatively, he submitted that this Court can give directions that this matter be filed in the correct jurisdiction under Or 2,r1 (2).

4.4 Mr Tuoitoga contends that the plaintiff's claim lies in an action in equity, not a "probate action" as defined in Or 76,r2.

4.5 Or 76,r2 envisages an action "for the grant of probate of the will, or letters of administration of the estate of a deceased person" or "for the revocation of such a grant" or "for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business".

4.6 The plaintiff, in her statement of claim seeks a declaration that she is entitled to the estate of the deceased and an order for the assets of the deceased to be transferred to her. Her action is founded as a former de facto wife of the deceased. She alleges that they accumulated monies, stocks, shares and properties, which comprised their matrimonial home.

4.7 The plaintiff's claim does not fall within the three limbs of Or 76,r2, as correctly pointed out by Mr Tuoitoga. But it does relate to a contentious probate matter. The plaintiff has filed caveat against the granting of probate to Penny Allinson and an Appearance to Warning. Moreover, all actions relating to the probate and civil jurisdiction are filed in the Civil Registry. In the interests of justice, I would hear this case under the civil jurisdiction, rather than strike it out on the trifling objection that it was irregularly filed in the probate jurisdiction of the Civil Registry.

4.8 Penny Allinson has filed an application for letters of administration in respect of the Estate of Leslie Allinson, as evidenced in her affidavit in support. Accordingly, the plaintiff's claim, if any, lies against the estate. That disposes of the contention that the "Estate of Leslie Allinson" has been improperly joined.

4.9 Mr Tuoitoga finally submitted that this court has no jurisdiction over the property of the deceased in Australia. I disagree. This case is concerned with the plaintiff's alleged claim as de facto wife, not with the enforcement of a judgment that may be entered in her favour.

4.10 The summons filed by Penny Allinson fails.

5. Orders
   

(a) The application to strike out under Or12, r 7 is declined.

(b) Penny Allinson shall pay the plaintiff costs summarily assessed in a sum of $ 2500 within 14 days of this judgment.

5th March, 2014

A.L.B.Brito-Mutunayagam
Judge