Taneko v Taneko [2017] SBHC 85; HCSI-CC 104 of 2015 (1 June 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 104 of 2015

IN THE MATTER OF TANEKO AUGUSTINE; DECEASED OF KOMBUVATU HOUSING ESTATE, EAST

HONIARA, SOLOMON ISLANDS.

IN THE MATTER OF WILLS, PROBATE AND ADMINISTRATION ACT (CAP 33).
AND:

IN THE MATTER OF THE APPLICANT; DONNA PHILOTHEA TANEKO FOR LETTERS OF
ADMINISTRATION.

BETWEEN: DONNA PHILOTHEA TANEKO - Applicant

AND: DERRICK TANEKO - Objector

Date of Hearing: 16^th May 2017.
Date of Judgment: 1^st June 2017.

Mr. S. Tabo Applicant.
Mr. A. Hou for the Objector.

KENIAPISIA; PJ:

JUDGMENT ON GRANT OF LETTERS OF ADMINSITRATION OF AN ESTATE

Introduction and Background

1. Deceased, Augustine Taneko died without a “Will”. In succession and property law, he died intestate. Dependants of the deceased are Donna Taneko (Wife of deceased and Applicant herein) and Derrick Taneko (Son of deceased and Objector herein). Deceased and Donna, the applicant, also have other issues from their marriage.
2. To be precise, Donna and the deceased have three issues from their marriage namely Junior^[1], Manford and Simonia. There are also three other issues namely Sandra, Derrick (Objector) and Philimon. These were three children, born from deceased’s first marriage to a woman from Papua New Guinea (Bougainville). For all practical family purposes; the three issues from the deceased’s Bougainville marriage, are the sons and daughter of the deceased and Donna (applicant), during the life time of the deceased with the applicant. This was confirmed by Donna in evidence and corroborated by verbal evidence adduced in Court by witness Siapu. I did not gather any major contradictory evidence from the objector. Objector continually referred to the applicant as mum or step mum; in oral evidence.
3. As I gathered from evidence, Donna and the deceased, lived as happily married wife and husband (affiliated to and actively engaged in church), raising their children, all of those issues above named, collectively. And as a family they may have come across hard times. And the objector did say that he has anger in his heart towards applicant, his mother/step mother. That they would have arguments but would settle because he respected his dad/deceased. Nothing sinister was ever raised about the nullity of this marriage from anyone, let alone the children, during the life time of the deceased, from year 2001 to 2012, when the deceased died, or at time of celebration of applicant and deceased’s marriage in 2001; in Shortland. Even Derrick say in evidence that he knew of Notice about new marriage, but did not raise objections to it, because he respected his dad, the deceased.

Declare the marriage a “nullity” on the ground of “Void” marriage

4. A proper challenge to nullify the marriage as alleged by the objector should have been brought during the deceased’s life time, under Islanders Divorce Act (Cap 170), or better still objection raised at the time of celebration of this marriage, under Section 11 (1) of the Islanders Marriage Act (Cap 171). Objector is alleging that in 2001, deceased’s wife from Bougainville (his mother from deceased’s first marriage) was still alive at the time deceased celebrated his second marriage with the applicant. So under Section 12 (a) of the Islanders Divorce Act (Cap 170), this marriage should be declared a nullity by this Court, because the marriage was void. And therefore the applicant not a wife of the deceased, should not be entitled to be granted letters of administration.
5. To declare a marriage a nullity on grounds as alleged by the objector (void marriage); the law provides for it under Section 12 (a) of the Islanders Divorce Act (Cap 170). Section 14 (1) – (3) of the same Act deals with how the petition for a nullity decree of such a marriage; is to be instigated. Section 14 (3) of the same Act require that petitions for a nullity of a marriage as alleged, must be served on the Respondent personally. The Respondent should rightly be the deceased and the applicant jointly or separately. Now that the deceased is in another invisible world, his spirit cannot respond to any such petition/allegations. It also means that the time to properly challenge or petition for the nullity of this marriage, as alleged, has long passed. Therefore, the Court rejects any attempts to challenge and nullify this marriage, in 2017, some 5 years after the deceased has died. And some 16 years after the marriage was celebrated.

Application Proper

6. Challenge to this marriage aside, I deal with the application for letters of administration of estate of the deceased on the following established facts. The applicant is the wife of the deceased. The objector is one of the children of the deceased and the applicant. The other children are above mentioned already. Altogether, the children and the applicant are the deceased’s dependants. The deceased died intestate.
7. So the pertinent question or issue to resolve in this application, is, who should be appointed administrator of the deceased’s estate, where the deceased died intestate.
8. The law is quite clear. Section 29 (1) of the Wills, Probate and Administration Act (Cap 33), says that where the deceased died wholly intestate, the persons having beneficial interests in the estate, shall be entitled to a grant of letters of administration, in the order of priority that may be prescribed by Rules made under Regulations. The Rules are The Grants of Probate and Administration (Order of Priority) Regulations of 1996. Rule 3 (1) (a) puts the surviving spouse at the top of the list of priority. Donna is the surviving spouse. She is entitled to a grant of Letters of Administration in priority to anyone else. Though the son (objector) disputed this, I already reject above, the grounds for his objection.
9. The objector does not raise any other grounds, why the applicant should not be granted letters of administration by this Court. The Court can change the order of priority, in accordance with the provisions of Section 29 (2) of Wills and Probate Act (Cap 33). When this section is invoked, the Court will change the order of priority for reasons of custom and usage or for special circumstances. Special circumstances as laid down in case law authorities is when the applicant is incapable^[2] or is of bad character^[3] to act as administrator. None of those grounds have been raised by the objector.

Conclusion and Grant of Letters of Administration

10. For these reasons, I see no justification to interfere with the order of priority set out in the Rules. Perhaps I should make it clear to parties, that this Court maintains an ongoing role in the administration of estates. The administration by the appointed administrator is carried out by authority of this Court^[4]. And if any beneficiary is unhappy about the administration and distribution of the deceased’s estate, they are entitled to come to this Court, to ensure the administration is being conducted in accordance with the law^[5]. And the law, inter alia, require that, the purpose of a proper administration of a deceased’s property, is to ensure the property benefits the deceased’s dependants^[6]. The applicant, the objector and other issues above named in my view qualify as dependants for the purpose of proper administration of the deceased’s estate.
11. The orders of this Court are:-

11.1 Letters of Administration are granted to the Applicant, Donna.

11.2 She is duty bound to administer the estate of the deceased in accordance to the law.

11.3 No order on costs.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Now deceased.

^[2] In re Estate of Jocelyn M Kabui (2014) SBHC 34; HCSI-cc 36 of 2012 (9^th May 2014).
^[3] Jocelyn M. Kabui case cited in footnote 2.

^[4] Keyaumi –v- Keyaumi (2010) SBHC 58; HCSI-cc 201 of 2010 (20^th September 2010).
^[5] Keyaumi case cited in footnote 4.
^[6] Jocelyn M Kabui case cited in foot note 2 above at paragraph 26 of paclii version.