Wilson v Makakona [2019] NUHC 2; App 11891 (21 May 2019)

IN THE HIGH COURT OF NIUE
(CIVIL DIVISION)

App No. 11891

IN THE MATTER sections 6 and 77 of the Administration Act 1969

AND

IN THE MATTER Part Matago Lalo, Tuapa

BETWEEN FINEATA WILSON (also known as FINEATA LITOEHEONE VILISONI)

Applicant

AND GLENDA FISIMOLI VILISONI

Applicant

AND HONDA PUIVAOTAMA VILISONI

Applicant

AND OLENESISI MAKAKONA

Respondent

Hearing: 13 March 2019

Decision: 21 May 2019

DECISION OF ISAAC J

Introduction

[1] There is an application for letters of administration before the Court filed by the children of Lepokofatu Hida Wilson Vilisoni (deceased) to appoint Fineata Litoeheone Vilisoni Wilson (Fineata Wilson) as administrator of the deceased’s estate.
[2] The application was heard by me on 14 March 2019 and at that time I gave the respondents 15 days to respond to the application and submissions filed by the children.
[3] The submissions have now been filed and I now consider the application before me.

Background

[4] The deceased died on 23 May 2018 at Niue.
[5] The deceased signed a will on 20 September 2015 which was not witnessed and therefore incomplete. The will however, sets out the deceased’s wishes that his children are entitled to the house at Makatutaha, Tuapa and that Timothy Magaoa is the leveki magafaoa for the house.
[6] As the will was incomplete, the deceased’s children made an application for letters of administration to appoint Fineata Wilson as administrator to administer the deceased’s assets.
[7] This application was opposed by Olenesisi Makakona who stated that the opposition, “is only that the house situated at Makatutaha, Tuapa is not part of the estate of the late Lepokofatu Hida John Wilson Vilisoni.”
[8] There is no opposition to Fineata Wilson being appointed to administer her father’s estate.

Law

[9] Section 6 of the Administration Act 1969 states the following:

6 Discretion of Court as to person to whom administration is granted

(1) (a) In granting letters of administration with or without a will annexed, or an order to administer with or without a will annexed, in respect of the estate of any deceased person or any part of it, the Court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale of it, and, in particular, administration with a will annexed may be granted to a devisee or legatee, and any such administration may be limited in any way the Court thinks fit: provided that, subject to provisions of subsection (2), where the deceased died wholly intestate as to his estate, administration shall be granted to some one or more persons beneficially interested in the estate of the deceased, if they make an application for the purpose.

(2) Where by reason of the insolvency of the estate or other special circumstances the Court thinks it necessary or expedient to do so, it may –

(a) Grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed an executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration;

(b) Grant probate to one or more of the executors appointed by a will, notwithstanding that some other person or persons may also be appointed as an executor or executors.

(3) A grant may be made under subsection (2) notwithstanding that any person excluded from the grant would be competent to take it.

(4) Before determining to exclude from any such grant any person who, apart from this section, would by law be entitled to, or be included in, the grant, and wishes to have, or to be so included in, the grant, the Court shall have regard to his competency and solvency, his ability effectively to administer the estate, the rights of all persons interested in the estate, and any changes in circumstances between the making of the will (if any) and the time when the Court is asked to make the grant.

(5) The court may, in its discretion, make any grant of administration (other than the probate of a will) conditional upon the person to whom the grant is made giving such security as the court may require for the due collection, getting in, and administration of the estate of the deceased: provided that the court shall not require any trustee corporation, or any person obtaining administration to the use or for the benefit of the Sovereign, to give any such security.

(6) The court shall not exercise its powers under subsection (5) unless it is satisfied that, in the special circumstances of the case, the imposition of the requirement of security would be expedient having regard to the following matters:

(a) the value of the estate:

(b) the financial position of the proposed administrator:

(c) the extent of his or her interest (if any) in the estate:

(d) whether or not he or she is a creditor in the estate:

(e) whether or not there are any minor beneficiaries or beneficiaries under any other disability:

(f) such other matters as the court thinks relevant.

[10] Section 77 of the Administration Act 1969 states the following:

77 Succession on intestacy

Where any person dies intestate as to any real or personal estate, that estate

shall be distributed in the manner or be held on the trusts mentioned in this section, namely –

(a) If the intestate leaves a husband or wife, the surviving husband or wife shall take the personal chattels absolutely and, in addition, the residue of the estate shall stand charged with the payment of a sum of $12,000 to the surviving husband or wife with interest on it from the date of the death until paid or appropriated, at the rate from time to time prescribed by or under section 39, and, subject to

providing for that sum and the interest on it, the residue of the

estate shall be held –

(i) if the intestate leaves issue, in trust as to one-third for the surviving husband or wife absolutely, and as to the other twothirds on the statutory trusts for the issue of the intestate;

(ii) if the intestate leaves no issue, in trust as to two-thirds for the surviving husband or wife absolutely, and as to the other one third if the intestate leaves both parents, in trust for the father and mother in equal shares absolutely or, if the intestate leaves only one parent, in trust for the surviving father or mother absolutely;

(iii) if the intestate leaves no issue or parent, in trust for the surviving husband or wife absolutely;

(b) If the intestate leaves issue but no husband or wife, the estate shall be held on the statutory trusts for the issue of the intestate;

(c) If the intestate leaves no husband or wife or issue but a parent or parents, the estate shall be held in trust for the parents in equal shares if they both survive the intestate but if only one of them survives the intestate for that one;

(d) If the intestate leaves no husband or wife or issue or parent, the estate shall be held in trust for the following persons living at the death of the intestate, and in the following order and manner, namely: Firstly, on the statutory trusts for the brothers and sisters (whether of full or of half blood) of the intestate; but if no person takes an absolutely vested interest under such trusts; then Secondly, in trust for the grandparents of the intestate and, if more than one survive the intestate, in equal shares; but if there is no

member of this class; then Thirdly, on the statutory trusts for the uncles and aunts of the

intestate, being brothers and sisters (whether of full or of half blood) of a parent of the intestate;

(e) In default of any person taking an absolute interest under the foregoing provisions, the estate shall belong to the Crown as bona vacantia, and in place of any right to escheat; and the Crown may (without prejudice to any other powers), out of the whole or any part of the property devolving on it, provide for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.

Discussion

[11] The matter to be determined is whether or not letters of administration should be granted to Fineata Wilson.
[12] In terms of s 6 (1) (a) and (b) of the Administration Act 1969, I have to consider the rights of all persons interested in the estate or its proceeds and whether the applicant for administration, Fineata Wilson, is a beneficiary of the estate.
[13] The children have provided clear evidence that Fineata Wilson is a child of the deceased and therefore in terms of the Administration Act 1969, is a beneficiary of the estate. She also has the support of her siblings. Further, no opposition has been filed by any other persons with an interest in the estate, to the grant of administration being made in her favour.
[14] The opposition that has been filed questions the ownership of the house and whether or not the house was the property of the deceased. The opposition does not question the entitlement of Fineata Wilson to be granted letters of administration.
[15] As I attempted to point out at the Court hearing, the ownership of the house is a separate issue to the grant of administration and is subject to a separate application to the Land Division of the High Court and requires different grounds of proof.
[16] Accordingly, I have no hesitation in granting letters of administration in favour of Fineata Wilson.
[17] In terms of the ownership of the house, as mentioned above a separate application will need to be made.
[18] In my view, pending the outcome of the application to determine ownership of the house, the status quo at the time of the deceased’s death should remain. That is that the possession and occupation of the house remains with the deceased estate until a further order of the Court.

Decision

[19] In terms of s 6 of the Administration Act 1969, a grant of administration is made in favour of Fineata Wilson.

Dated at Gisborne this 21^st day of May 2019.

_________________
W W Isaac
JUSTICE