In re Estate of Late Resin Sialeoa [2013] SBHC 79; HCSI-CC 338 of 2012 (3 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 338 of 2012

IN THE MATTER OF Wills, Probate and Administration Act (Cap. 33)
IN THE MATTER OF the Estate of Late Resin Sialeoa

AND IN THE MATTER of an application by Peter Fairamo for Letters of Administration in respect of the Estate of Resin Sialeoa

Date of Hearing: 22 May 2013
Date of Ruling: 3 July 2013

Mr. Etomea for Mr. Peter Fairamo
Mr. Laurere for Mr. Daniel Ri'imana

RULING

[1] This is an application filed on 18 October 2012 pursuant to section 16 of the Wills, Probate and Administration Act (Cap. 33) ("the Act"), by Mr. Peter Fairamo, the Applicant, for Letters of Administration in respect of the Estate of Late Ms Resin Sialeoa.

[2] Ms Late Resin Sialeoa died intestate ("the Deceased") on 23 July 1987. The Deceased is survived by three children, two sons and one daughter. The elder son of the first born son of the Deceased is the Applicant in this case.

[3] There is objection filed against the grant of letters of administration to the Applicant in this case. The objection is in the form of an Amended cross application filed on 10 April 2013 by Mr. Daniel Ri'imana, representing the Kwaibale Tribe. He seeks the following relief: (1) Declaration that there was an equitable trust created by constructive trust in the circumstance of this case; (2) Declaration that Parcel Number 134-001-1 is trust property and the cross-applicant and members of the Kwaibale tribe were beneficiaries to the trust property; (3) An order (under the British Solomon Islands and Gilbert and Ellice Islands (Probate and Administration) order in council, 1914, that the devolution of the perpetual estate in Parcel Number 134-001-1 be referred to the Local Court in accordance with the current customary usage as certified by the local court having jurisdiction in the area where the land is situated especially to determine the beneficiary to the trust property; (4) in the alternative, an order that letters of Administration of the Estate of Late Ms Resin Sialeoa be jointly administered by the Applicant Mr Peter Fairamo and the cross-Applicant Mr. Daniel Ri'imana; Any other orders the court deems fit; and costs.

[4] The Deceased died intestate. In this matter, the persons having a beneficial interest in the Estate are therefore provided under regulation 3 (i) of the grant of Probate and Administration (Order of Priority) Regulations of 16 February 1996 LN26/1996, which states:

"3. (i) 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 life time of deceased; (c) the father or mother of the deceased; (d) brothers and sisters of the whole blood or the issue of such brother or sister who dies during the life time of the deceased". In this matter, the Deceased still has two surviving children, a son and a daughter. The surviving son Mr. Patrick Iakonare and the surviving daughter is Ms Felistus. Both of have sign a consent order on 26 February 2012 to have carriage of this matter on their behalf. However, the Deceased died on 23 July 1987, before the Regulation referred to in paragraph 4 above came into force. In that case, it is my view that the provision of Rule 21 of the none-contentious Probate Rules of 1954 of UK would apply in this case, on the basis that they have general application, and thus they would apply to this country as well. Rule 21 states: "I. Where the deceased died on or after the 1st January, 1926, wholly intestate, the persons having beneficial interest in the estate shall be entitled to a grant of administration in the following order of priority, namely:- (i) the Surviving spouse; (ii) the children of the deceased ....or the issues of such child who has died during the life time of the deceased; (iii) the father or mother of the deceased ......(iv) Brothers or Sisters of the whole blood, or the issues of any deceased brother or sister of the whole blood who has died".

[5] The Estate of the Deceased for purposes of this matter is the Perpetual Estate in Parcel Number 134-001-1. This Estate is currently on lease to the Commissioner of Lands who holds the same on behalf of the Solomon Islands Government.

[6] The Cross-Applicant imputes that the Deceased had fraudulently registered the Estate in her name. The Cross-Applicant has not adduced evidence to establish this assertion. There is no evidence to persuade this court that the Deceased had committed fraud in the registration of her title to the perpetual Estate. In actual fact, a Public Notice was issue on 3 October 1963. There was no complaint received and thus the Perpetual Estate was accordingly registered in the name of the Deceased on the 3 September 1969.

[7] The Cross-Applicant has failed to point to any subsisting equitable interest, which he and members of his Tribe have, according the principles of constructive trust in law, in relation to the Perpetual Estate in Parcel Number 134-001-1 held by the Deceased.

[8] In the circumstance, Letters of Administration is granted to Peter Fairamo and the Application's Cross-Application is refused and dismissed.

Order:

1. Letters of Administration to Administer the Perpetual Estate of the Deceased, Resin Sialeoa, is granted to Peter Fairamo as agreed by Mr. Patrick Iakonare and Ms Felistus.

2. The Cross-Application by the Cross-Applicant is refused and dismissed; and

3. The Cross-Applicant is to pay the costs of the Applicant, Mr Peter Fairamo.

THE COURT