Jayant v Reed [2022] FJHC 182; HPP 51 of 2020 (12 April 2022)

IN THE HIGH COURT OF FIJI AT SUVA

PROBATE JURISDICTION

Probate Action No. HPP 51 of 2020

IN THE ESTATE of the late DUKHDAI aka DUKH DEI aka DHARAM DEI of

264 Mead Road, Nabua, Suva, Deceased intestate.

BETWEEN

SUNEETA DEVI JAYANT of 9 Harobed Place, Weymouth, Manurewa,

Auckland, New Zealand.

CAVEATEE

AND

KIRAN LATA aka KIRAN LATA REED aka KIRAN REED of 2/105 Allerton Street,

Stratford lodge, Haslings, 4120, New Zealand, C/- MESSRS MIQ LAWYERS,

Suite 14, Lees Trading Complex, Lot 1 Ratu Dovi Road, Nasinu.

CAVEATOR

Counsel : Ms. Nayacalevu S. for the Caveatee

Mr. Kumar D. for the Caveator

Date of Hearing : 29^th March 2022

Date of Judgment : 12^th April 2022

JUDGMENT

[1] The caveatee filed this notice of motions seeking an order for removal of the caveat No. 07 of 2020 lodged against the estate of DUKHDAI aka DUKH DEI aka DHARAM DEI of 264 Mead Road, Nabua, Suva, Deceased intestate and for the grant of letters of administration.

[2] The caveatee is a daughter of the deceased. She avers in the affidavit in support that a Will search was conducted at the Probate Registry at the High Court in Suva and it was confirmed that there was no Will of her late mother.

[3] The caveator’s is a daughter in law of the deceased. The caveator was married to one of the deceased’s sons, Arvind Kumar who is now deceased. The caveator has attached a copy of a last will (unsigned) of the deceased.

[4] Section 6 of the Wills Act 1972 provides:

Subject to the provisions of Part V, a will is not valid unless it is in writing and executed in the following manner:-

(a) it is signed by the testator or by some person in his presence and by his direction in such place on the document as to be apparent on the face of the will that the testator intended by such signature to give effect to the writing as his will;
(b) such signature is made or acknowledged by the testator in the presence of at least two witnesses present at the same time; and
(c) the witnesses attest and subscribe the will in the presence of the testator,

but no form of attestation is necessary.

[5] The copy of the Will relied on by the caveator is a photocopy of an unsigned document. A will to be valid before the law must be executed according to the above provisions. In the affidavit in opposition the caveatee states that the Will was executed by Wm Scott Grahame &Co, Solicitors of Eldon Chambers, Suva, Fiji and that she is in the process of making an application for the grant of probate. However, the caveator does not say that the so called last will is in her possession or if not what happened to it. The learned counsel for the caveatee in his submissions said that the law firm has now been closed and he in the process of locating the last will. The submissions of fact made by a counsel from the bar table cannot be considered as evidence. There is no evidence before this court as to the existence of a last will of the deceased.

[6] Rule 44(3) of the Non-Contentious Probate Rules 1987 provides:

(a) Except as otherwise provided by this rule or by rules 45 or 46, a caveat shall be effective for a period of six months from the date of entry thereof, and where a caveator wishes to extend the said period of six months, he or his solicitor may lodge at, or send by post to, the registry or sub-registry at which the caveat was entered a written application for extension.
(b) An application for extension as aforesaid must be lodged, or received by post, within the last month of the said period of six months, and the caveat shall thereupon (save as otherwise provided by this rule) be effective for an additional period of six months from the date on which it was due to expire.
(c) A caveat which has been extended as above may be further extended by the filing of a further application for extension subject to the same conditions as set out in sub-paragraph (b) above.

Rule 44(11) of the Non-Contentious Probate Rules 1987 provides:

A caveator who has not entered an appearance to a warning may at any time withdraw his caveat by giving notice at the registry or sub-registry at which it was entered, and the caveat shall thereupon cease to have effect; and, where the caveat has been so withdrawn, the caveator shall forthwith give notice of withdrawal to the person warning.

[7] In this mater the caveat was lodged on 20^th January 2020 and there had been no application for extension of the caveat and it had already ceased to have effect.

[8] In Amos v Fiji Public Trustee Corporation [2010] FJHC 617; Probate 48456 (28 July 2010) cited the following paragraph from Rosy Reddy –v- Manchama Webb and Lawrence Webb (unreported Civil Appeal No. 14 of 1994 delivered on 11 November 1994) that:

"We note that the procedure for dealing with a caveat under the Rules is different from the removal of a caveat provided under section 47 of the Act. Under the Rules a caveat shall remain in force for six months (r 44 (4)). A caveat may also cease to have any effect if the caveator does not file an appearance or take out a summons for directions (r 44 (11)). Under these Rules, a caveat may cease to have any effect in this way without there being a need for resort to court proceedings. However, under the Act, section 47 provides that in every case where a caveat is lodged, an application may be made to the Court to remove the caveat."

[9] The caveator avers in her affidavit in opposition that the caveatee is not the proper person to apply for the Letters of Administration and as she has beneficial interest in the estate she is the proper person to apply for probate. I have already decided that there is no legally valid last will before this court. Therefore, the caveator’s position that the caveatee in not entitled to obtain the Letters of Administration is without merit. The caveatee is a biological daughter of the deceased and her living siblings have renounced their rights to be an administrator for the estate of the deceased in favour of the caveatee. Therefore, she has the right to apply for the Letters of Administration to administer her deceased mother’s estate.

[10] The caveatee states in paragraph 6 of her affidavit in support that on 3^rd June 2020 she filed warning to caveator and it was served on the solicitors of the caveator on 8^th March 2020, however, the caveator failed to show cause, why letters of administration should not be granted to the caveatee.

[11] For the reasons setout above the court holds that the caveatee is entitled to obtain the letters of administration.

ORDERS

(1) It is ordered that the Letters of Administration be granted to the Caveatee, Sunita Devi Jayant.
(2) The Caveator is ordered to pay the Caveatee $1000.00 as costs.

Lyone Seneviratne

JUDGE

12^th April 2022