Estate of Amita Sikilea, In re [2017] TOSC 25; PA 15 of 2017 (7 November 2017)

IN THE SUPREME COURT OF TONGA

NUKU’ALOFA REGISTRY

PA 15 of 2017

IN THE MATTER OF: The Probate Act (Cap 16)

AND

IN THE MATTER OF: an application by Aminiasi Havea Hikule’o Helu for Letters of Administration in respect of the estate of Amita Sikilea.

BEFORE LORD CHIEF JUSTICE PAULSEN

Date of Ruling: 7 November 2017

Counsel: Mr V Mo’ale for the applicant

RULING

The application

[1] The applicant Aminiasi Hikule’o applies for Letters of Administration in respect of the estate of his grandmother Amita Sikilea (aka Amita Ziegler) who I shall refer to as Amita. I am refusing the application and provide a brief summary of my reasons.

Background

[2] Amita died at Ha’apai on 10 February 1965 and the applicant says Amita died without a will. To understand why the applicant would seek Letters of Administration 52 years after his grandmother’s death I must provide some background.

[3] Amita’s father was Charles Ziegler who died at Ha’apai on 10 November 1926 leaving a will dated 20 January 1925. The executor under the will was Frederick T Goedicke and Probate was granted by the High Commissioners Court for the Western Pacific on 16 January 1926.

[4] Charles’s assets upon his death included an amount of £30 14s 5d in an account with the Bank of Australasia at Sydney. Under Charles’s will Amita was entitled (subject to the payment of Charles’s debts and funeral expenses) to a third share of this money along with her two sisters Lina and Tio. The relevant clause in the will read:

The contents of the buildings, such as furniture, goods cash, cart and horse (and if there should be a balance to my credit at this Bank of Australia at Sydney) I wish to have sold and the proceeds, after paying my debts and funeral expenses, to be divided into three even parts of which I leave to my daughters Amita, Lina and Tio each one part....

[5] The applicant says that ‘it is my understanding’ that the money held in the bank account was not dealt with in accordance with Charles Ziegler’s will and remains undistributed. There is really no evidential foundation for this understanding in the material provided to the Court.

[6] In paragraphs 7 and 9 of his affidavit the applicant explains the purpose of this application as follows:

....There is an amount of monies in the Bank of Australasia Sydney (now known as Westpac Banking Corporation) mentioned in her father Charles Ziegler’s will of which one third would have been under the name of Amita Sikilea had she claimed her share. I want to administer the account but cannot access it as it is under Charles Ziegler’s name alone and we have had notification that the Bank will not release any detail because of the Privacy Law.

[7] The present application resulted from legal advice the applicant had received in Australia that:

I was directed to seek a Grant of Administration for the estate of Amita Sikilea and that application be dealt with in Tonga, being the jurisdiction where the probate for the Will of Charles Ziegler was originally granted.

That my understanding that a grant of administration will provide me with legal authority to make further enquires in Australia, in relation to a balance (if any) which may currently be held in the Bank of Australasia (or its successors).

Discussion

[8] The present application faces insurmountable hurdles. First, it is clear from the documents filed with the Court, which include a declaration by the executor of the estate of Charles Ziegler setting out all of his property as at the date of his death, that the executor was aware of the cash in the Bank of Australasia. I can see no evidential basis for the applicant’s assertion that the money in Charles Ziegler’s bank account was not distributed in accordance with his will or was not otherwise applied to payment of his debts and funeral expenses.

[9] Secondly, the granting of Letters of Administration would serve no useful purpose. Attached to the applicant’s affidavit is a letter dated 19 March 2004 from the Westpac Banking Corporation (which the applicant says is the successor of the Bank of Australasia). Whilst that letter does say that due to privacy laws the bank is unable to provide information it in fact goes on to say “Additionally, as this account was held with the Bank of Australia in 1925, we do not hold any records that would assist us with your enquiry”. The applicant’s evidence that the bank would not release details due to ‘the Privacy Law’ is not therefore entirely correct. If the bank held no relevant records over 13 years ago I cannot see how it can be expected to hold any now. In addition to this, the granting of Letters of Administration to the applicant in respect of Amita’s estate would not provide him with any automatic right to seek information from the bank in respect of any account in the name of Charles Ziegler.

[10] Thirdly, under section 11 of the Probate Act from the date of the death of an intestate until administration is granted her personal property (which will of course include money in a bank account) is vested in the Supreme Court. If within 3 years no claimant or other person is found to be the next of kin to the deceased or to have established a right to the property of the deceased ‘the proceeds of such estate shall become the property of the Crown and shall be paid into general revenue’ under section 12 of the Probate Act. The effect of this section is that if upon her death Amita had any claim to undistributed money in a bank account of Charles Ziegler her rights now belong to the Crown. There is a proviso to section 12 that provides that the Minister may instruct the Court to grant Letters of Administration to any person entitled to such grant or to any person illegitimately descended from the deceased but no such instruction has been sought or given in this case.

[11] Fourthly, there are a number of procedural defects with the application which include that no notice of intention to apply for Letters of Administration has been advertised as required by the Supreme Court (Probate and Administration) Rule, the applicant has failed to obtain the consent to the application from the four children of his deceased older brother and the applicant’s affidavit contains much speculative material.

[12] Fundamentally, the applicant seeks Letters of Administration to further his enquires without any reasonable foundation for his belief that the estate of Charles Ziegler was not fully administered. This is not a suitable circumstance for the Court to exercise its powers to grant Letters of Administration.

The Result

[13] The applicant for Letters of Administration is refused.

O G Paulsen
NUKU’ALOFA: 7 November 2017 LORD CHIEF JUSTICE