In re Estate of Jehiel Kwaimani [2013] SBHC 25; HCSI-CC 229 of 2012 (18 March 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 229 of 2012

IN THE MATTER OF
Wills, Probate and Administration Act (Cap. 33)

IN THE MATTER OF
the Estate of Late Jehiel Kwaimani a.k.a Jehiel Kwaimani Ausuta

AND IN THE MATTER OF
an application by Mrs Cyrene Kwaimani, Mr. Brain Kwaimani and Mr. Allen Kwaimani for letters of Administration in respect of the Estate of Jehiel Kwaimani

Date of Hearing : 13 February 2013
Date of Ruling : 18 March 2013

Mr. Ismael Rocky Kako for Mrs. Cyrene Kwaimani,
Mr. Brain Kwaimani and Mr. Allen Kwaimani

RULING

[1] This is an application filed on 24 July 2012 pursuant to section 16 of the Wills, Probate and Administration Act (Cap. 33) ("the Act"), by Mrs Cyrene Kwaimani ("Cyrene"), Mr. Brain Kwaimani ("Brain") and Allan Kwaimani ("Allan"), the Applicants for letters of Administration in respect of the Estate of Late Jehiel Kwaimani ("the Testator").

[2] The Testator was from Loina Village, North Malaita, Malaita Province. He was a resident of Honiara with his family at St. Nicholas at Kukum in Honiara. He was a private business man majoring in construction. He died at the National Referral Hospital in Honiara on 26th April 2012 after a short illness. His Estate is comprised of money in bank accounts, shares in companies, vehicles, buildings and fixed term estates. The gross value of the Testator's estate would be in the sum of $28,105,899.00.

[3] The Testator and Cyrene were married in church in Honiara at the SSEC Central Church on 31st May 1969. The wedding was officiated by Pastor Ed Pollard. The best man for the Testator during the wedding was Sir Peter Kenilorea. The Testator and Cyrene have five biological children. They are Brian, Allan, Ruth Soa, Barbra Wate and Susan Kwaimani.

[4] The Applicants who are the personal representatives of the Testator's family have applied for letters of Administration of the Testators Estate in this case. They are Cyrene legal wife of the Testator; Brian the eldest son of the Testator. He holds a Diploma in Business Studies from Massey University. He has been assuming the role of company Manager since the death of the Testator, And Allan the younger son of the Testator is an engineer by profession. He holds a Diploma in Civil Engineering from Massey University. He has been assisting his elder brother Brian, when Brian assumed the role of company manager since the death of the Testator. The three (3) daughters of the Testator, namely, Ruth Soa, Barbra wate and Susan Kwaimani have all given their consent and approval for their mother and brothers, the Applicants, to apply for letters of Administration of the Estate of the Testator.

[5] Mr. Francis Waleanisia deposed that the Testator instructed him to draft a Will for him. In accordance with that instruction, a draft Will ("the Will") was produced and given to the Testator for comments, before a final version was made for the Testator. The Testator made no comments but signed the Will. A copy of that Will was exhibited as "IRK" to the sworn statement of Ismael Rocky Kako, filed on 21 September 2012. The devisees and the legatees in that Will are Brian, Allan, Cyrene, Ruth Soa, Barbra Wate, Susan Kwaimani, Delicia and Damien Kwaimani. The Testator signed the Will on 21 September 2011 after considerable time since he received it from Mr. Waleanisia. Brian has confirmed that the signature at the lower end of the Will belonged to the Testator, his late father. The three Applicants seeking letters of Administration in relation the Testator's Will are legatees and devisees in terms of regulation 2 of the Grants and Administration (Order of Priority) Regulations of 16 February 1996, made under section 109 of the Act.

[6] The essential elements of a valid Will in this jurisdiction are provided in section 5 (1) of the Act, which states:

"5. (1) A will shall not be valid unless it is in writing and executed in the following manner:

(a) (i) it is signed by the testator or someone in his presence and by his direction in such place on the document as to be apparent on the face of the Will that the testator intended by such signature to give effect to the writing as his Will;

• (ii) Such signature is made or acknowledged by the testator in the presence of at least two witnesses at the same time;
  
• (iii) The witnesses attest and subscribed the Will in the presence of the testator, but no form of attestation is necessary".
  

[7] Evidence as to due execution of a Will is provided in section 24 of the Act as follows:

"24 (1) No grant of probate or administration with the Will annexed shall be granted unless the court is satisfied by oral, affidavit or such other evidence as the court may require that the Will was duly executed in one of the manners provided by section 5 and has not been revoked.

(2) If the court after considering the evidence is not satisfied as to the due execution of the Will. It shall refuse probate and shall mark the will accordingly".

[8] The proof of the signature of the Testator on the Will shows that he was competent and understands the contents of the Will. In Cleare v Cleare (1869 LR IP & D 665, the court said: "in all cases, whether through the medium of a presumption unrebutted, or of positive evidence to that end, the party who puts forward a document as to be the Will of the testator was competent to make a Will when he executed it. The competency forms part of the proposition that a Will was made....., the testator's knowledge of the contents of his alleged will stands upon the like footing. That he knew and approved of the contents is a proposition implied in the assertion that a will was made by him. That the testator did know and approve of the contents of the alleged will is therefore part of the burden of proof assumed by everyone who propounds it as a will. This burden is satisfied, prima facie, in the case of a competent testator by proving that he executed it."

[9] There is evidence that the Testator asked for a Will to be drafted for him. Counsel received detained instructions on that. This is reflected in the Will. There is no adverse evidence that the Testator was incompetent to make that Will. The Will is in writing and he signed it without any amendment. His signature was in the Will as proved by Brian in a Sworn Statement. The court is satisfied on the evidence that the Testator executed the Will in one of the ways as provided in section 5 of the Act, cited above. In that view the Testator's Will is valid.

[10] In conclusion, the joint application by Cyrene, Brian and Allan for letters of Administration in respect of the Testator's Estate is granted. Order accordingly.

THE COURT