In re Estate of Joycelyn M Kabui [2014] SBHC 34; HCSI-CC 36 of 2012 (9 May 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ).

CIVIL CASE NO. 36 OF 2012.

IN THE MATTER OF:

The Wills Probate and Administration
Act (Cap. 33);

AND IN THE MATTER OF:

The Estate of the late Joycelyn
Mugama'ama Kabui (deceased) a.k.a
Joycelyn Koromako;

AND IN THE MATTER OF:

An Application to set aside orders for Application Letters of Administration by Gideon
Koromako in respect of the estate of
the deceased

AND IN THE MATTER OF:

An Application for letters of Respondent
Administration by Jane Mugafalu
Kabui in respect of the estate of the
deceased.

Date of Hearing: 15th April 2014
Date of Judgment: 9th May 2014.

Mr Hiele for the Applicant.
Mr G. Fa'aitoa for the Respondent.

RULING.

Faukona PJ: this is an application to set aside orders of this Court perfected on 18th May, 2012, granting letters of Administration to Messrs Heinzdee Ngeno Koromako, Garry Koromako and Mrs Jane Mugafalu Kabui Waetara, to administer the Estate of the late Mrs Joycelyn Koromako (deceased) who died intestate on 22nd February, 2009.

2. Some gone by years the Applicant and the deceased entered into a custom marriage. $400.00 was the acceptance transaction for the pride price. The Applicant is a Polynesian from Tikopia island and the deceased is an aboriginal native of Malaita. Out from that traditional matrimony two issues were born. Mr Heinzdee Ngeno Koromako who is 22 years and Mr Garry Koromako who is 18 years of age.

3. On 22nd February 2009, the deceased died intestate leaving behind the surviving husband (Applicant) and the two sons.

4. On about 10th May 2011, the Solomon Star newspaper published a public notice stating that the Respondent had an intention to apply for letters of Administration in respect of the Estate of the deceased. On 20th May 2011, an objection was filed and served on the Respondent's Solicitor by the Applicant.

5. On 16th may 2012, the Court heard the application in the absence of the objector (Applicant), and subsequently made the orders granting letters of Administration to Mrs Jane Mungafala Kabui Waetara together with Heinzdee Ngeno Koromako and Garry Koromako. That order now forms the basis for this application to set aside.

The law applicable:

6. Were a person (as in this case) dies intestate leaving no will, then someone has to be by order of court grant letters of Administration to administer the estate of the deceased. As to date of death, the deceased had left behind a widower (the Applicant), two issues and two real estate properties located at Bua Valley PN 191-032-16 and Ngossi Ridge PN 191-010-86. The land titles in those estates according to the exhibited instruments were in the personal names of the deceased. Quite fascinating to learn that the Applicant being a husband did not have his name even in one of the properties. That could have presumably attributed to the sheer effort of one person the deceased alone. Evidence also reveal that through the entire life span of the marriage the Applicant has always been unemployed and contributed nothing to the well-being of the family, leaving the deceased as the sole bread winner.

7. The argument advance by the Counsel for the Applicant premise on distribution of intestate residuary estate priorities by virtue of Section 84 of the Wills, Probate and Administration Act. The relevant section is 84 (1) (a)(ii) which states;

"If the intestate leaves issue (whether or not the persons mentioned is sub-paragraphs (b) above also survived), the surviving husband or wife shall take the personal chattels absolutely and, in addition, the residuary estate of the intestate (other than the personal chattels)..."

8. In essence there can be no question the above provision has placed the Applicant entitled under the Act as top priority who should benefit from the intestate together with the issues.

9. Apparently, Mr Hiele's submissions confine to accommodate the common law sequence of consideration of people who are entitled to benefit from the intestate estate recognised by law. The Counsel's focus is premised on identifying those beneficiaries who by virtue of S.84 entitled to the priority distribution list. Having identified the order of priority then obligation for grant of letters of administration follow correspondingly.

10. Mr. Fa'aitoa agrees to the fact that grants of Probate and Administration (Order of Priority) Regulations shows the surviving spouse is at the top of the list. However Mr Fa'aitoa refers to Section 29 (2) which states;

"Notwithstanding the order of priority prescribed by the rules made under subsection (1), where it appears to the Court, that by reason of any special circumstances or current customary usage any estate ought to be administered by some person other those specified in the order of priority, the Court may grant administration to such person"

11. In this case, the Court has passed over the Applicant as a surviving spouse. The reason as advanced by Mr Fa'aitoa is twofold. One, that there exists a prevailing special circumstance. Secondly, that there exist a current customary usage which the estate ought to be administered.

12. Upon reading of S.29 (2), I form the opinion though the law seem to separate reasons for pass over, it may not be necessary in this case. That is to separate applicable customary usage and special circumstances. In fact, the circumstances of this case warrant an amalgamation of the two statutory reasons.

Special circumstance:

13. By reading S.29 (1) in conjunction with S.84 of the Wills Probate and Administration Act, it is accepted that a widow or widower is usually at the top of the list followed by a child of the deceased. There must be good reason to uphold S.29 (2) to come into operation by departing from the usual sequence of consideration. These very good reasons are what now known as usual terminology as special circumstances.

14. The question ought to ask, is there exist a special circumstance in this case, which will require an absolute pass over the order of priority? Special circumstances more usually arise when the person named in the rules as having priority is incapable of adequately dealing with the duties of a personal representative. This may be for reasons that prevailed at that point in time.

15. In an attempt to discover what basically consist of special circumstance His Lordship Awich J stated on page 2, paragraph 3; in the case re Estate of Victor Eoalo[1]

"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.

16. Apart from that, His Lordship also stated in the same paragraph that bad character may also be alleged. His Lordship then refers to Paine (1916) 115 Lt 135 and Re Arden [1898] UKLawRpPro 19; (1898) P 147 as proof to that effect.

17. It would appear that the element of special circumstance can be featured in bad character. Of course a bad charactered person, in case such as this, is incapable of adequately dealing with his duties, hence cannot be trusted. Character is a combination of qualities, which make a particular person different; and regarded as valuables such as principles of honesty or even a strange character. In any event the opinion others have for one tantamount to character of that person. A character may not be a permanent feature of a person; it may be temporal and can change from time to time. In this case, there are grave allegations of bad character against the Applicant.

18. There is evidence that two years after the death of the deceased the Applicant failed to make initiative to file application to obtain letters of administration to administer the estates of his late wife. He merely woke up to realise the publication of a legal notice by the Respondent applying for the grant of letters of administration, on 9th May 2011. As a beneficiary of the residuary estate and number one in the order of priority, it is expected of him to realise his legal and domestic obligations. Nothing forthcoming from him initially.

19. Instead of being urged and be cautious of his actions, he sold the deceased Toyota 4 wheel-drive Double Cabin Hilux registration No. AB4208 without consulting his sons. Again attempted to sell the deceased property in PN191-330-16, Mbua Valley, to Eddie Awaoli. Mr. Awaoli ever since being occupying the residence, a manifestation reflecting some kind of financial transactions could have been done for the benefit of the Applicant. Subsequently Mr Awaoli lodged the transfer instruments for registration at the Registrar General's Office. Unfortunately, it was not accepted because the title of the property had never been in the names of the Applicant. Again the action by the Applicant was contrary to decent thinking of a right minded person, in particular without consulting with his sons.

20. It did not stop there. The applicant who is perceived as being responsible had failed or even attempt to repair and renovate the property in PN191-010-86 at Ngossi which is in a run down and dilapidated state. Even the thatched hut within that property was not repaired as well.

21. In the midst of thorny allegations and unacceptable behaviour occasioning him, the Applicant offers a non-tangible housing development scheme for his sons at Ngossi. The crucial point is on whose land the project will establish. There is nothing tangible to indicate he owns the land or has a legal title to any land. Such is only fit for me to conclude as water under the bridge.

22. From evidence, a general over view can be drawn as to the capability of the Applicant to administer the estate. It demonstrated the Applicant has not possessed the character to honestly administer his wife's estate.

23. Because of the cavalier attitude and unacceptable character of the Applicant, the Respondent intervenes and accept responsibility and willing to shoulder the burden along with the two sons of the Applicant. It is a responsibility recognized in custom to lend a helping hand in a moment of destitute where all other options have been exhausted. As a sister obligated under custom to assist the two children of her late sister, ensuring the estate their mother left is well administered for their benefit and a promise benefit for the Applicant as well. There is a statement of non- prejudicial to the beneficiaries of the estate.

24. Within a short span of time after the Court had granted letters of administration, the Respondent had taken necessary steps to preserve the property at Mbua Valley by transferring the title from the deceased names to her and her husband's names. As revealed, is purposely to secure the property from scrupulous dealing by the Applicant, and also to secure a bank loan to renovate the Ngossi property. On or about 15th August 2013, the Respondent and her husband had received $230,000.00 into their joint account to meet the cost of renovation of the Ngossi property. So for that is the most valuable service rendered which I do not think the Applicant would do or able and capable to do. Evidence revealed that the Respondent and husband had good track record with the Banks; hence, borrowing money is not a problem. That is a testamentary of commitment and responsibility.

25. If there should be wisdom and knowledge rooted in the Applicant, he should impart with the highest appreciation accorded to the Respondent for what she had done, and support her for the good work she had started. Instead, he took another route to distort and retar date the good progress in administering the estate.

26. If I am to decide for the Applicant then the sale and transfer of the Mbua Valley property will be executed and will not meet the intended purpose of proper administration of the estate for the benefit of the deceased's dependents. Besides that, what else would emerge, something unexpected and perhaps unacceptable? The vehicle and one property had already been scrupulously dealt with and I am mindful this attitude does not continue to thrive.

27. In the light of what I have said, I have no hesitation to affirm that there exist special circumstances in this case. Evidence has revealed so and I must decide on the balance of probability, dismissing the application with costs.

Orders:

1. Application to set aside order of this Court on 18th May 2012, dismissed.

2. Cost is paid to the Respondent.

The Court.

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^[1] [1997] HBSC 45; HC-CC 130 of 1996 of 29 of 1997 (8 August 1997).