Tadulala v Tadulala [2021] FJHC 422; HPP73.2020 (6 October 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION
Probate Action No.: HPP 73 of 2020

IN THE ESTATE of MARIKA TADULALA late of 48 Vusavusa Street, Vatuwaqa Housing, Suva, Fiji, Deceased, Testate.

BETWEEN : TEUPOLA BULAUDRADRA TADULALA
PLAINTIFF

AND : ANASEINI LIKU TADULALA
FIRST DEFENDANT

AND : FIJI PUBLIC TRUSTEE CORPORATION (PTE) LIMITED

SECOND DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Ms A Senibua [Raikanikoda & Associates]

FIRST DEFENDANT : Ms N Ali [Legal Aid Commission]

SECOND DEFENDANT : No Appearance [Public Trustee Corporation Pte Limited]

RULING BY : Acting Master Ms Vandhana Lal

DELIVERED ON : 06 October 2021

RULING

1. The Plaintiff on 15 September 2020 through her solicitors filed an originating summons with an affidavit in support. Via the said application she seeks orders as follows:
   
   1. A Declaration order that the purported last Will and Testament of Marika Tadulala dated 03 December 2019 is null and void;
   2. A Declaration order that the Plaintiff may apply for the grant and administer the estate of Marika Tadulala;
   3. A Declaration order restraining the 1^st Defendant and the 2^nd Defendant from transferring, mortgaging or dealing in any other way pending the determination of the action;
   4. A declaration order that the 1^st Defendant provide estate accounts of monies collected as rent fort eh deceased’s property and to reimburse that money to the Plaintiff;
   5. A Declaration order restraining the 1^st Defendant from entering the property formerly owned by the Deceased.
      
2. The First Defendant’s Solicitors made an oral application to this Court that the correct provision of the law under which application is to be made is Order 7 and the originating summons ought to be converted into a writ action.
   
3. Solicitors for both the Plaintiff and the First Defendant have filed their respective submission and were heard on their oral submissions as well.
   
4. Order 5 Rule 4 of the High Court Rules makes provision for when proceedings are to be commenced by a writ or an originating summons.
   
5. Sub-Rule 1 reads:
   

“except in the case of proceedings by these rules or by or under any Act are required to be begun by writ of originating summons or are required or authorised to be begun by petition, proceedings may be begun either by writ or originating summons as the Plaintiff considers appropriate.”

6. Order 76 of the Rules deals with probate proceedings where Rule 1 Sub-Rule 2 defines “probate action” as “an action for the grant of probate of the will, or letter 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”.
   
7. The English Supreme Court Act 1981 under section 128 defines ‘non-contentious or common form probate business” as “the business of obtaining probate and administration where there is no contention as to the right thereto, including the passing of probates and administrations through the High Court on contentious cases where the contest has been terminated, and all business of a non-contentious nature in matters of testacy and intestacy, not being proceedings in any action, and also the business of lodging caveats against the grant of probate or administration”.
   
8. The Plaintiff in the current proceedings is challenging the validity of the purported Will of the deceased dated 03 December 2019.
   
9. The orders sought in prayers 1 and 2 of the originating summons are very much contentious probate action which rightfully ought to have begun by writ pursuant to Order 76 Rule 2 of the High Court Rules.
10. As explained earlier there are procedures involved in issuance of writ for probate action, hence I do not find it proper to convert the action into a writ action under Order 28 Rule 9(1).
    
11. It is only proper that the two orders sought are struck off from the originating summons and the Plaintiff files a writ action for the same.
    
12. Whilst prayers 3, 4 and 5 of the originating summon can be defined as administration action under Order 85 of the High Court Rules, the same can proceed for hearing.
    
13. The Second Defendant has filed its opposition hence directives will now be made for the First Defendant to file and serve its opposition.
    

FINAL ORDERS

14. Prayers numbered 1 and 2 on the originating summons are struck out.
    
15. The First Defendant is to file and serve her affidavit in opposition in 14 days from the date of delivery of this ruling.
    
16. Thereafter the Plaintiff to file and serve her reply in 14 days.
    
17. This matter to be allocated for hearing before a Judge.
    
18. Cost to be in cause.
    

................................
Vandhana Lal [Ms]
Acting Master
At Suva.

06 October 2021

TO:

1. Suva High Court Probate File No. HPP 73 of 2020;
2. Raikanikoda & Associates, Solicitors for the Plaintiff;
3. Legal Aid Commission, Solicitors for the First Defendant;
4. Fiji Public Trustee Corporation Pte Limited, Solicitors for the Second Defendant.