Koru v Official Administrator of Unrepresented Estates [1985] SBHC 17; [1985-1986] SILR 132 (10 December 1985)

1985-1986 SILR 132

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 83 of 1985

KORU

v

OFFICIAL ADMINISTRATOR OF UNREPRESENTED ESTATES

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 83 of 1985

6 November and 4 December 1985
Judgment 10 December 1985

Estates - non-Solomon Islander died intestate - whether long cohabitation deemed valid marriage.

Facts:

The plaintiff, the daughter of one Simon Koru who died intestate, claimed a certain parcel of registered land owned by her father. The deceased had been married to one Tebina by whom he had four children including the plaintiff. Tebina died in 1964 and subsequently the deceased cohabited with one Tangaua by whom he had a daughter named Mary. The deceased and Tangaua lived together until his death in 1976 and later Tangaua died in 1984. Mary claimed the land as hers having inherited it from her mother. The plaintiff claimed the land as belonging to the legitimate heirs of the deceased.

Held:

1. By virtue of s.190(3)(b) of the Land and Titles Act, s.76 of the Constitution and Clause 1 of Schedule 3 to the Constitution when a non-Solomon Islander dies intestate, his interests shall be disposed of in accordance with the law in force in England on 1 January 1961.

2. By the Administration of Estates Act 1925, where the net estate does not exceed 5,000 pounds in value, the surviving spouse takes all.

3. Where it is proved that a man and woman have lived together as man and wife, the law presumes, unless it is clearly proved to the contrary, that they were validly married. (In re Taylor (1960) 1 WLR 9 and Piers v. Piers (1849) 2 HL Cases 331 per Lord Cottenham LC followed).

4. The deceased and Tangaua lived together as man and wife for over ten years which led to the presumption, which the plaintiff failed to rebut, that they were validly married.

5. Accordingly, Tangaua inherited absolutely from the deceased under the Law of England in force as of 1 January 1961 as applied to Solomon Islands and Mary was the sole heir of Tangaua when she died in 1984.

Accordingly, the plaintiff’s action failed and the defendant was ordered to administer the estate in light of the judgment.

Cases considered:

In re Taylor (1960) 1 WLR 9
Piers v. Piers (1849) 2 HL Cases 331

Andrew Radclyffe for the Plaintiff
Reginald Teutao for the Defendant

Wood CJ: The plaintiff is the daughter of one Simon Koru who died intestate on June 24, 1976. Letters of Administration were granted to the defendant on March, 24 1977. The deceased had been married to one Tebina by whom he had four children including the plaintiff. Tebina died in 1964 and subsequently the deceased cohabited with one Tangaua by whom he had a daughter named Mary. The deceased and Tangaua lived together at White River until the death of the deceased on June 24, 1976. Tangaua subsequently died in September 1984. Simon Koru was registered as owner of parcel No. 191-001-72 at White River, Honiara. This parcel has not been transferred to anyone and is still registered in the name of Simon Koru.

The plaintiff claims on behalf of herself, her brothers and sister the said parcel of land they being the legitimate issue of the deceased Simon Koru. Mary Koru claims the property as hers having inherited the said land from her mother Tebina.

It is not in dispute that the deceased Simon Koru was not born in Solomon Islands and was not a Solomon Islander at the time of his death. He made no will, S.190(3)(b) of the Land and Titles Act Cap. 93 therefore applies to this case. This subsection reads as follows-

“(3) Where the interest is not disposed of by a valid will, it shall, subject to section 188(2), be held-

(b) in the case of an interest of which a person not a Solomon Islander was owner, upon trust to dispose of this interest in accordance with the law relating to the administration of estates of person who are not Solomon Islanders.”

It follows from s.76 and Clause 1 of Schedule 3 of the Constitution of Solomon Islands that the law in force in England on January 1, 1961 applies to this case.

The sole issue before me is whether or not Simon Koru and Tangaua were lawfully married when Simon died in 1976. If they were married then Tangaua would have been entitled to take the personal chattels, a fixed net sum absolutely (which in 1961 was £5000) free of capital transfer tax and costs and a life interest in half the remainder. The other half of the remainder would vest in the issue of the deceased that is to say all the five children of Simon Koru. However I am told that the entire estate of Simon Koru in 1976 would not have been worth more than $5000. By the Administration of Estates Act 1925 the fixed net sum (£5,000) is charged on the residuary estate, but it amounts to an absolute gift, and in practice is always treated as such, and where the estate does not exceed the relevant sum after payment of testamentary expenses, debts and tax, the surviving spouse takes all. Indeed counsel agreed that if Simon and Tangaua were married then Tangaua as Simon’s widow in 1976 would have inherited all Simon’s estate which would pass to Mary on her death in 1984.

In the case of In re Taylor, deceased (1960) 1 WLR 9 it was held that where a man and woman were proved to have lived together as man and wife, the law presumed, unless the contrary was clearly proved, that they were validly married. In Taylor’s case there was no marriage certificate nor any evidence of a marriage ceremony. The trial judge and three judges of appeal all upheld the presumption of marriage based on cohabitation. In Piers v. Piers (1849) 2 HL Cases 331 Lord Cottenham LC stated, “this presumption of law (that is the presumption that they have been married if they have cohabited long together as man and wife and been so treated) is not lightly to be repelled, and the evidence for repelling it must be strong, distinct, satisfactory and conclusive”.

Michael Kabatikua gave evidence that he knew Simon Koru, Tangaua and Tebina well and that he is a fellow Gilbertese related to the first wife Tebina. In 1964 or 1965 he attended a marriage ceremony between Simon Koru and Tangaua in the Old Magistrate’s Office in Honiara where the magistrate Mr Bergerlen married them. This is therefore direct evidence that they were marry which is to be coupled with the undisputed fact that they lived together as “man and wife” for well over ten years before Simon died. Both counsel have faulted Michael’s evidence on the ground that he went to the Magistrates’ Office as a “witness” but in the event did not sign the marriage register as Mr Bergerlen objected in view of the fact that Michael was related to the first wife of Simon, that is to say Tebina. It was suggested that Mr Bergerlen would have insisted that to witnesses sign the register. This may be so but there were on Michael’s evidence other people present working in the office and no doubt one of them could have signed the register as a witness. However that may be I could see no reason for Michael to lie and considering the events were about 20 years ago he had a good recollection of the events which took place and there could be no doubt if he is to be believed that it was a form of marriage. It must be presumed to have been a valid marriage until the contrary is proved. Counsel have indeed searched the registers in vain for the record of this marriage but it is conceded that the records are neither comprehensive nor infallible.

The evidence in rebuttal is that of the plaintiff and Roland Tehaiago a cousin of Simon Koru. They both stated that Simon and Tangaua were not married and plaintiff further said that her father had told her he was not married to Tangaue. The plaintiff would have been a young girl in 1964 or 1965 and according to Michael’s evidence the only friends or relatives attending the wedding were himself and Sibawa, now deceased.

I find that I accept the evidence of Michael Kabatikua and that the plaintiff has failed to rebut the presumption that Simon Koru and Tangaua were married in 1964 or 1965. It follows that Mary Koru their only child was the heir to her deceased mother Tangaua when she died in 1984 Tangaua having inherited absolutely from Simon Koru when he died in 1976 under the law of England as applied to Solomon Islands as at January 1, 1961.

Plaintiff’s action accordingly fails and the defendant is hereby ordered to administer the estate of the late Simon Koru in the light of this judgment.