Ta'asi v Solomon Islands National Provident Fund Board [2007] SBHC 65; HCSI-CC 184 of 2003 (29 June 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 184 of 2003

IN THE MATTER OF:

THE SOLOMON ISLANDS NATIONAL PROVIDENT FUND ACT CAP 109,

IN THE MATTER OF:

UNREPRESENTED ESTATE OF LATE IMO TA’ASI

BETWEEN:

OSIA TA’ASI
(Representing himself and the family of the deceased)
Applicant

AND:

SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD
Respondent

Date of Hearing: 29 June 2007
Date of Ruling: 29 June 2007

M Marahari as agent for the Plaintiffs
G. Fa’aitoa for the Respondent

RULING on motion to include moneys credited to deceased’s National Provident Fund account in the intestate estate to be administered by and paid to the customary representative of the estate, the applicant.

Brown, J: The deceased was a contribution to the NPF. When he passed away on the 25 May 2003 he had moneys in that fund. No nomination had been made to the time of his death as provided for in section 32 of the NPF Act.

The applicant, the brother of the deceased has come to court seeking an order that the moneys standing to the credit of the deceased’s account with the Fund be paid to him for by custom he is the lawful representative of the declared. He points to the minutes of a village elders meeting of the 4 September 2006 where the elders found the applicant Osia Ta’asi fully entitled to take "customary possession possession of (his late brothers) real and personal estate and administer them in accordance to Gilberteese centures and custom in the interest of the family Imo Ta’asi deceased".

What the minutes did not address, Mr. Faia’atoa says, is the facts that, before his death Imo Ta’asi make a will. That can be seen from the letter the deceased wrote to Mr. John Lamani the Managing Director of the Solomon Star on the 5 February 2003.

The letter does not in terms of western established law have the necessary incidents of a will for that it had not been attested as such before two witnesses present at the same time and place as the testator but the letter is clearly a testamentary disposition made in the knowledge of the writer that he would shortly pass away.

I’m satisfied, that such letter is a testamentary disposition which in custom should be a matter for the elders to take into account and that it has not been mentioned in their deliberations.

Since it has obviously not been addressed by the elders, that part of the deceased’s estate comprising the NPF moneys cannot be seen to fall to the applicant for by the terms of the disposition the NPF moneys had effectively passed to the deceased’s three children; 2 sons and a daughter at the time of his death. Where custom ignores the wishes of a person whose disposition before death is plainly in favour of his children, then custom expressed to deal with the "estate" of the deceased cannot be deemed to include moneys given away in terms of the living deponent’s wishes.

The NPF has correctly acted in the best interest of the beneficiaries so named in that testamentary disposition.

I accordingly confirm the act of the NPF in allocating the moneys of the deceased to the three children equally. As the deceased said "I have already placed my will on the 3 children to receive at the right age." It would be inequitable to ignore the plain expression of intent by the deceased. The NPF is entitled to pay moneys in accordance with that expressed intent.

The appointment by custom of the brother Osia Ta’asi to the position as representative cannot affect the earlier disposition by the decease so as to afford Osia Ta’asi any claim of right to those NPF moneys.

I should say that my brother judge Kabui had not decided the issue in his earlier deliberations which were concerned with proper parties to the application.

In terms of the motion of the 16 May 2007 I say

(1) no, the NPF was entitled to act upon the clear testamentary disposition of the contributor in terms of his letter of the 5 February 2003.

(2) the NPF having paid moneys lawfully in accordance with the contributors’ wishes has no obligation to reimburse moneys to the applicant.

(3) That application is refused since the appointment of the customary representative is after the event of the 5 February 2003 and equity requires done that which is expected to be done in terms of the disposition by the NPF contributor upon the occurrence of his death.

(4) No other orders sought.

(5) Each party will pay their own costs.

These orders effectively complete the applications for relief and the originating process has been subsumed by my orders.

THE COURT