Public Trustee of Fiji v Singh [1987] FJSC 2; MISC 018 1986 (15 May 1987)

IN THE SUPREME COURT OF FIJI
MISCELLANEOUS APPEAL

MISCELLANEOUS ACTION NO. 18 OF 1986
BETWEEN:

THE PUBLIC TRUSTEE OF FIJI

Appellant
AND:

SASHI KIRAN SINGH
a.k.a. YVONNE NANDAN

Respondent

Mr. N. Nand for the Public Trustee
Mr. S. Parshotam for the Wife
Mr. S. K. Singh for the Children

OPINION

In his will dated the 29^th August 1977 the testator, Parmanand, appointed the Public Trustee of Fiji to be his executor and trustee. He died on the 5^th May, 1986 without making any alteration to his will.

The testator married Sashi Kiran Singh on the 20^th May, 1966. There were four children of the marriage, three of whom were born before the will was executed. The fourth child, Regina Sashina Kiran Nandan, was born on the 13^th November, 1983.

The testator’s wife is a named beneficiary under the will as are the 3 daughters who were alive in 1977. The Public Trustee has not yet obtained probate of the Will, pending the resolution of certain questions which he considers arise out of circumstances existing before the death of the testator. He has sought the opinion of this Court on these questions under Section 47 of the Public Trustee Act, Cap. 64.

In 1984 the testator instituted divorce proceedings against his wife in the magistrate's court at Suva. In August, 1985 the parties entered into a separation agreement, which provided for the custody and maintenance of the children of the marriage. The wife relinquished all claims o any matrimonial property in consideration of the payment of $8,000, in specified instalments, which was due to be completed on or before the 30th June, 1987. The wife agreed to indemnify the testator and his estate against all debts and liabilities "hereinafter contracted and incurred by the wife and against all costs claims and damages in respect thereof".

The marriage subsisted at the date of the testator’s death. The separation agreement may have altered the circumstances between the testator and his wife, but, it did not have the effect of revoking the will or altering any provision in it. (Will's Act Cap. 59 section 14). The limitations on revocation of a will are set out in section 15. Nothing occurred after the execution of the will which constituted a valid revocation of it. Furthermore, section 25 of the Act makes it clear that-

"A transfer or other act, other than an act by which the will is revoked as provided by this Act, made or done subsequently to the execution of a will of or relating to any property therein comprised does not prevent the operation of the will with respect to such estate or interest in that property as the testator had power to dispose of by will at the time of his death."

That section is a re-enactment (with modifications to suit local conditions) of section 23 of the Will's Act 1837. This prevented the revocation of a gift by an alteration in the estate or interest of the testator. It did not, however, abolish the equitable doctrine of ademption.

Under the will the testator's wife is entitled to "the use occupation and enjoyment of a house at Raiwaqa during her lifetime", with a direction that the property shall be transferred to her son when he attains 21 years of age. In addition, the widow is entitled to one half of the residue upon her son coming of age.

The principles upon which a court considers and applies, with the necessary distinctions, the doctrines of satisfaction and ademption are set out by Lord Romily in Lord Chichchester v. Coventry [1864] EngR 336; (1867) 2 L.R.H.L. 71 in his speech which commences at 90. There is nothing in the recent case which suggests that it was the intention of the testator that the settlement made on separation was an ademption of the provision made for her in his will. The testator may not have wished to live with his wife, but, it does not follow that he wished to leave her homeless and after his death with minor children to look after.

The testator was at all times free to alter his will and he did not chose [sic] to do so. His wife is entitled to the bequest notwithstanding the separation and the financial provision made for her. The Public Trustee must distribute the estate in accordance with the wishes of the testator as expressed in his will.

In regard to the child Regina, she does not take anything under the will. Her sisters are entitled to maintenance until they attain the age of 21 years or until marriage, whichever event shall first occur, and their marriage expenses. Regina's position may be safeguarded by an application to this Court under Section 3 of the Inheritance (Family Provisions) Act Cap. 61 in due course.

It is my opinion that the widow inherits in accordance with the will and that the daughter Regina is not entitled to any portion of the testator's estate. I have not been asked to express any opinion as to whether the wife is entitled to payment of the balance of the amount due under the separation agreement from the estate of the testator.

The costs of all parties are to be taxed and paid by the Public Trustee out of the estate of the testator.

(F.X. ROONEY)
JUDGE

15^th May, 1987.