In re the Estate of Victor Eoaeo [1997] SBHC 45; HC-CC 130 of 1996 & 029 of 1997 (8 August 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No.130 of 1996 and Civil Case No. 29 of 1997

I>IN THE MATTER OF THE ESTATE OF VICTOR EOAEO (DECEASED)

AND

IN THE MATTER OF THE WILLS PROBATE AND ADMINISTRATION ACT 1987

>Before: Lungole-Awie-Awich, J

Hearing: 28 July 1997 - Judgment: 8th August 1997

Counsel: J. Sullivan fo Applicant, Maria Eiyedada Eoaeo, P. Tenavota for Lucy Ika

JUJUDGMENT

LUNGOLE-AWICH, J:

The Application and Consolidation with Another.

The application in this case, Civil Case No. 29 of 1997, that the court is asked to decide upon today is that of Maria Eiyedada Eoaeo, widow of Victor Eoaeo who died in Nauru General Hospital in Nauru on 15.6.1979. The applicant is represented by learned counsel Mr. John Sullivan of the firm of Sol-Law in Honiara, Solomon Islands. Her application is by originating summons, for grant of administration of the estate of her deceased husband and therefore the necessary Letters of Administration. In a related case, Civil Case No.130 of 1996, Mr. Philip Tegavota, solicitor for Lucy Ika, acting on her instruction, has obtained grant of administration of the estate of Eoaeo the subject of the application now before court. It is ordered that the two cases stand consolidated. This judgment is therefore to be regarded as judgment in both cases.

The Law Applicable

Mr. Eoaeo died on 15.6.1979 so the current legislation in Solomon Islands, The Wills, Probate and Administration Act, 1987, which commenced on 3.5.1991, does not apply to his estate. The laws that apply are the British Solomon Islands and Gilbert and Ellice Islands (Probate and Administration) Order, 1914, No.150, the Common Law and Customs applicable to the deceased.

Application of a widow or widower for grant of administration of the estate of a spouse who has died intestate is the usual course of events. There is nothing in the law though to stop challenge to application by a widow or widower. It may be alleged, for instance, that a will was made by the deceased, in which an executor, other than the spouse, was named, that the spouse is incapacitated or has left the country and in the circumstances she or he would not be able to return to attend to the administration. Compare the case of In the Estate of Thomas (1912) P177 in which the next of kin had left England for New Zealand. Bad character may also be alleged; see Paine [1916] 115 LT 135 and Re Arden [1898] P147. There are several circumstances in which a challenge to application by a surviving spouse or next of kin may be successful. The grounds must, however, be special circumstances and when they are alleged and successfully proved the court may grant order that the person such as a widow or widower who is normally entitled to grant of administration be passed over.

The British Solomon Islands and Gilbert and Ellice Islands (Probate and Administration) Order, 1914, provided for only the basic laws of probate and administration of deceased estates; it did not provide for the sequence of consideration of those entitled to grant of administration, grounds for revocation of grant or procedures for application for grant or revocation. The nearest provisions in the Order are in sections 11 and 15. Section 11 dealt with expediting the administration, that is, expediting liquidating or collecting and distributing, of estate. Section 15 dealt with application by someone entitled to grant, (without stating who is entitled), to apply for grant even when grant had already been made to official administrator (public trustee in current legislation). There was no indication of sequence of consideration of persons when making grant. I set out here parts of section 11 and section 15 that I refer to:

"11. (1) A person claiming to be a creditor or legatee, or the next of kin, or one of the next of kin, of a deceased person may apply for and obtain a summons from the Court requiring the executor or administrator (as the case may be) of the deceased to attend before the Court and show cause why an order for the administration of the property of the deceased should not be made.

(2) ........

(3) ........

(4) If the Court thinks fit, the carriage of the order may subsequently be given to such persons, and on such terms, as the Court thinks fit.

(5) ......

(6) ......

and,

15. (1) Any person by law entitled to a grant of probate or of letters of administration (with or without the will annexed) of the estate of any deceased person the administration whereof has been granted to the official administrator. may. within five years from the date of the last-mentioned grant. apply to the Court for revocation thereof and for a grant to him of probate. or of administration of that estate. or such part thereof as is still unadministered, and the Court, if satisfied that the applicant is entitled thereto, shall make the appropriate grant.

(2) .......

Order of Priority

At Common Law sequence of consideration of people who are entitled to grant of administration in intestate estate is recognised. In Odgers on the Common Law, third Edition by Roland Burrows, Volume 2 at page 788, it is stated that administration is usually granted to, "the wife, the child or creditor." Case law shows that a creditor ranks only after the next of kin. In the case of Blackborough v Davis (1700) 1 Salk 38, grant of administration made to a creditor before next of kin had renounced was revoked. When an executor named in a will is not available the sizes of the legacies to beneficiaries is an important consideration; usually the person with the greatest beneficial interest takes precedence. The widow or widower is usually at the top of the list followed by a child of the deceased. There must be very good reasons to depart from that usual sequence of consideration. These very good reasons are what I have stated above in the usual terminology as special circumstances. In England the relative priority of those entitled to grant has been a matter of legislation for some time. Under Supreme Court Act 1981 in England, amendment has been effected to their "Non Contentious Probate Rules 1954," stating order of priority.

Today in Solomon Islands, the position is also governed by legislation. Legal Notice 26 of 1996, at section 3, published on 1.2.1996, states the order of priority as follows:

"3. (1) Where the deceased died wholly intestate, the persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following order of priority

(a) the surviving spouse:

(b) the children of the deceased or the issues of any such child who died during the lifetime of the deceased:

(c) the father or mother of the deceased:

(d) brothers or sisters of the whole blood or the issue of any such brother or sister who died during the life-time of the deceased.

(2) If no person in any of the classes mentioned in paragraph (1) has survived the deceased then the following, if they have a beneficial interest in the estate, shall be entitled to a grant in the following order of priority -

(a) brothers and sisters of the half blood or the issue of any such deceased brother or sister who died during the life-time of the deceased

(b) grandparents:

(c) uncles and aunts of the whole blood or the issue of any such deceased uncle or aunt who died during the life-time of the deceased.

(3) In default of any Person having a beneficial interest in the estate, the Public Trustee shall be entitled to a grant if he claims bona vacantia on behalf of the crown.

(4) If all Persons entitled to a grant under the foregoing Provisions of this rule have been cleared off, a grant may be made to a creditor of the deceased or to any Person who not withstanding that he has no immediate beneficial interest, may have a beneficial interest in the event of an addition to the estate.

(5) Subject to section 31 of the Act the Personal representative of a Person in any of the classes mentioned in paragraphs (1) and (2) of this regulation or the Personal representative of a creditor shall be preferred to the Personal representative of a spouse who died without taking a beneficial interest in the whole of the estate of the deceased."

I must remind myself that the above statutory order of priority came into force after the death of Eoaeo so it does not apply to his estate.

The application of Mrs. Eoaeo is opposed by Mr. Tegavota, solicitor for Mrs. Lucy Ika, the widow of the late Idarabwe Ika who died on 11.2.1991 in Nauru. Mrs. Ika nominated Mr. Tegavota to administer the estate of her husband and Mr. Tegavota, acting in accordance with instruction, has obtained Letters of Administration in his own name. In the course of administering the estate of Mr. Ika it is claimed that two properties, parcels Nos.191-001-50 and 191-001-60, in Honiara which are in the name of Mr. Eoaeo and a third parcel, No.191-035-53 also in Honiara, registered in the name of Kukum Development Limited, a company owned by Mr. Eoaeo, had actually been bought by Mr. Ika when Mr. Eoaeo was still alive and when both men lived in Solomon Islands. Mr. Tegavota then considered it convenient for him to obtain grant of Administration in the estate of Eoaeo so that the estate of Eoaeo in Solomon Islands, which consists only of the parcels of land I have referred to. be liquidated and the parcels of land transferred to the estate of Mr. Ika. So Mr. Tegavota applied for grant of administration in the Estate of Eoaeo as well. The application which was in case No. CC130 of 1996, came before me on 19.8.1996. I made order to effect inquiries as to whether family members or other persons having beneficial interest in the estate would object. It is required that they be considered first, an exercise which is technically described as clearing off, before they are passed over in preference to a creditor. The court has the power to make such inquiries. I set out here the passage in which I made the order on 19.8.1996.

"I think I am bound to make some inquiry to ascertain whether the widow, children or relatives of Victor Eoaeo are interested and if not, whether they have any preference. The court directs that Mr. Tegavota who is the applicant contact the widow of Mr. Victor Eoaeo and Children and obtain their letters stating whether they wish to be Administrators themselves, or if they wish so, who they would recommend to the Court, and whether or not they recommend Mr. Tegavota. Another aspect of the matter is that this is an estate which seems to have no directly interested person to administrator. Mr. Tegavota should first bring this to the attention of the Public Trustee who has a duty under the Public Trustee Act; and to obtain his reaction. A copy of this ruling be sent to the Public Trustee to draw his attention to this matter"

When the case came back to court, it was listed before another judge who, in my view, properly granted the administration of the estate to Mr. Tegavota on 8.11.1996. Mr. Tegavota had produced a copy of a letter, dated 27.4.1989, said to have been written by Mr. Lui Eoaeo, the son of Victor Eoaeo, renouncing all claims over the parcels of land and in the company, Kukum Development Limited, in favour of Mr. Ika. He also had produced a copy of a letter dated 15.10.1978, said to have been written by Eoaeo to Ika, acknowledging that the parcels of land and shares in the company had been bought by Ika. There was prima facie evidence to clear off the spouse and relatives of the deceased, Eoaeo and to pass over them.

Application for Grant

The applicant Mrs. Eoaeo came to know that it is intended to transfer the parcels of land to the benefit of the estate of Ika. She applied for stay of administration. On 19.12.1996 the application for stay was presented before a different judge, a third one, to attend to the application. The judge granted the order to stay the administration of the estate. Without proceeding with that case in which she has obtained stay of administration, the applicant has now filed this application, independent of the other case. The application has now come back before me. The applicant seeks grant of administration of the estate of her husband; the grant has already been made to Mr. Tegavota. Learned counsel Mr. Sullivan in answer to court said that it was not necessary to pursue any further, the order to stay administration and that it could simply be regarded as having been stayed for ever, once administration has been granted to the applicant.

With due respect, the submission of Mr. Sullivan is contrary to what the law is. The law is that once grant of probate or administration has been made, it must be revoked and the probate or Letters of Administration must be returned when it is possible, before a new grant is made to replace it; see The Estate of Thomas [1912] P.177. It follows that having obtained stay of administration, the applicant should have pursued revocation and thereafter asked for return of the Letters of Administration if Mr. Tegavota had already uplifted it; there is no indication on the case file, No. CC130/96 that he has. The proceedings to revoke would be on that case file. Mr. Tegavota made a point almost to that effect, and to that extend I agree with him.

Revocation of Grant

I have considered the case papers on both case files. It is my view that there are sufficient papers on the files for me to treat the hearing before me on 28.7.1997, leading to this judgment, as hearing for revocation. The case for revocation is sometimes commenced by writ of summons and at others by summons. That is the practice in England. I have not been able to find clear enough reason to prefer one of the two practices to the other. It seems action by writ of summons is most used in contentious revocation and summons in non contentious revocations such as when consent has been obtained or administration has been renounced or abandoned. I have decided to condone any irregularity in the commencement of the case for revocation in the interest of justice in this case, and to treat the case as one brought for the relief of revocation. There is need now to minimise delay in the winding up of the estates of the two deceased. I understand that both widows are now resident in Nauru; it will be expensive for them if winding-up lasts a long time.

Grant of probate or of administration may be revoked by the court on its own motion or by application. The court may call in the grant of probate or Letters of Administration if it appears to it that: 1. the grant ought not to have been made or 2. that it contains an error. On action or on application, the court must be satisfied that the grant would be revoked at the instance of an interested person.

In this case, the order of the court made on 1 9.8.1996 was intended for the application of Mr. Tegavota, solicitor for a creditor, to be brought to the attention of the widow and family members of the family of the deceased, Mr. Eoaeo, before the grant could be made. That was to enable them to be heard if they wished, and if need be, they be cleared off. It was not because a grant could not be made to a creditor. The widow and next of kin had to be heard and if they wished, to be given first consideration. Indeed creditors can be granted administration of estate.

Decision

Despite the letters filed at court by Mr. Tegavota as evidence that Eoaeo's family was aware of the application by Mr. Tegavota, it is now certain that at least the widow was not aware. She has deposed so in her affidavit and that has not been challenged or contradicted by affidavit filed on behalf of Mr. Tegavota. She has now challenged the grant in court. It is not a case in which she had reached compromise and had given up her entitlement to being appointed administrator and has retracted. Compare the English case of Re Barraclough [1965] 2 All ER 311 in which application to revoke grant was refused because the applicant had compromised and consented not to oppose the grant and then retracted. It is my view therefore that the grant of administration of the estate of Eoaeo, made to Mr. Tegavota on 8.11.1996 would have not been made had the court been made aware that the widow had not been informed or had not known of the application. It is a grant which ought not to have been made. I accordingly order the grant revoked.

The next question I considered was whether on the papers on record I can now make grant of administration of the estate of Eoaeo to the widow, Maria Eiyedada Eoaeo. There is nothing in the record to suggest that the grant should not be made to the widow, and the order of priority in Common Law, is in her favour. I, however, have come to the conclusion that before the court decides on the grant, inquiries be made with a view to obtaining the views of the other beneficiaries be they the children, relatives or creditors of the deceased or others who have beneficial interests in some other ways. That can be effected by advertisement in newspaper. I direct that the applicant is to publish notification twice in a newspaper in Solomon Islands and twice in a newspaper in Nauru, addressed to the next of kin of the deceased and interested persons, stating that the applicant has applied to the High Court of Solomon Islands, for the grant of Letters of Administration in the estate of Victor Eoaeo, and calling upon them to file objection if any, within 30 days of the date of the last publication. The applicant is required to publish the notification within 30 days of today's date. Copies of the publications are to be filed at court and thereafter, the application may be listed for hearing before me.

Claim of Estate of Ika

The claim of the estate of Ika for the land parcels and shares in Kukum Development Limited will have to wait until grant of administration in the estate of Eoaeo has been made. Of course it is open to the administrator of the estate of Ika to expedite the administration in the estate of Eoaeo by citation proceedings if he considers that there is undue delay.

Observation (Public Trustee)

It is necessary to mention here that the order of court made on 19.8.1996 also directed that the application of Mr. Tegavota, on the instruction of Lucy Ika, be brought to the attention of the Public Trustee to consider whether the estate may be treated in bona vacantia as one in which there was no person entitled to and able to take grant of administration of. Had the Public Trustee done so, the present application would have been unnecessary. If the difficulty was about knowing exactly how the Public Trustee was to go about his statutory duties under the past or present legislation, it is suggested that he can always seek advice from the chambers of the Attorney General. It is no reflection on ability of any public officer to request legal advice from Attorney General; he is the chief legal adviser to the government, and he has professional staff.

Costs are reserved.

Dated this 8th day of August 1997

At the High Court, Honiara

Sam Lungole-Awich,
Judge