In the Estate of Lonisa D Likuca, In re [2021] FJHC 426; Probate File 6286 (18 March 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

PROBATE FILE NO. 62826

IN THE MATTER of IN THE ESTATE OF LONISA D LIKUCA late of Lot 1 Wailekutu, Lami, Retired Teacher, Testate.

APPEARANCES/REPRESENTATION
APPLICANT : Ms Senibua [Raikanikoda & Associates]

RESPONDENT : EX-PARTE APPLICATION

JUDGMENT BY : Acting Master Ms Vandhana Lal

ORAL JUDGMENT
DELIVERED ON : 18 March 2021

JUDGMENT
[WILL - Rectification]

1. The applicant Latileta Lutu Valevou Bolekisolomone has made an application dated 19^th February 2021 seeking orders that “Will number 1024 for late Lonisa D Likuca be validated upon amending the date of execution dated 31^st November 2006 to 30^th November 2006.”
   
2. The said application is made pursuant to Order 20 Rule 7 of the High Court Rules.
   
3. According to the applicant (affidavit in support filed with the motion), she is the biological daughter of the deceased Lonisa D. Likuca and appointed as Executor and Trustee pursuant to Will No. 1024.
   

She has been informed by the Fiji Public Trustee Corporation Limited on the 16^th July 2020 that a will No. 1024 was null and void due to the date of execution.

Hence she is seeking “Court’s indulgence to validate the Will No. 1024 by amending the date of execution from 31^st November 2006 to 30^th November 2006”.

4. The Counsel for the applicant has invoked the court’s jurisdiction under Order 20 Rule 7 of the High Court Rules.
   

Order 20 Rule 7 of the High Court Rules deals with amendment of the pleadings in a proceeding example Writ of Summons/Statement of Claim; Acknowledgment of Service; Statement of Defence etc.

5. The said order or any other laws does not give any courts powers to make or rewrite a will for a testator. The court has to admit a testator’s will as giving effect to his intentions.
   

In case of doubts and resolving ambiguities in a will the Court may resort to the “surrounding circumstances” as aid to ascertain the meaning of the will.

6. The relevant provisions of the law allowing court to resolve the doubts and/or ambiguities are found in Order 76 of the High Court Rules (in cases of contentious matters); the Wills Act and the Non-Contentious Probate Rules 1987.
   
7. The Applicant’s counsel has not invoked the Court’s jurisdiction under the Wills Act or the Non-Contentious Probate Rules.
   
8. Rule 14 (4) of the NCPR reads:

“Where there is a doubt as to the date on which will was executed, the [district Judge] or registrar may require such evidence as he thinks necessary to establish the date.”

9. In the application made in the current proceeding the counsel has failed to provide with this Court [either by affidavit or oral evidence] any evidence by either of the attesting witnesses or some other person present at the time of the execution, as to the execution of the document.
   
10. Neither is there any evidence that search has been made and no will of the later date has been found.
    
11. Upon perusal of the copy Will annexed to the affidavit in support, I find there is no date on any of the pages of the Will and only date given is November 2006.
    

The date so stated is imperfect.

12. Considering the above the application shall fail for now on following grounds:
    1. Proper jurisdiction of the Court not invoked;
    2. No evidence by either of the attesting witnesses as to the date of execution of the will.
       
13. The application is accordingly dismissed.
    

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

18 March 2020

TO:

1. Suva High Probate File No. 62826;
2. Raikanikoda & Associates, Solicitors for the Applicant.