In re the Estate of Beverly and Donald Naviti [2007] VUSC 60; Probate Case 37 of 2006 (28 April 2007)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Probate CASE No.37 of 2006

IN THE MATTER OF: An application for Letter of Administration in the Estate of

BEVERLY & DONALD NAVITI
Deceased

AND:

SUZIE NAVITI
Applicant

AND:

SALOME NAVITI
Second Applicant

AND:

ROGER NAVITI
Third Applicant

Mr. Jacob Kausiama for the Applicants
Ms Christina Thyna for the Salome Naviti

JUDGMENT

These are 3 applications for administration of the estate of the deceased Beverly Naviti and Donald Naviti. They were both died respectfully on 22 December 2003 and 3 June 2006.They died intestate and left no will.

Suzie Naviti is the First daughter of the deceased persons and the First Applicant. She applied for administration of the estate of her parents on 29 September 2006.

Mrs Salome Fred Naviti, the second wife of Donald Naviti and the surviving wife of the deceased Donald Naviti filed a counter-application for administration of the same estate of the deceased on 24 October 2006.

Mr. Roger Naviti, the brother of the deceased, Donald Naviti, filed an application on 16 February 2007 as joint Applicant with that of Suzie Naviti for administration of the same estate of the deceased persons.

The First Applicant, Suzie Naviti, withdrew her application before the hearing as she is under 21 years of age at the time of the application for administration contrary to the relevant provision of the Succession, Probate and Administration of Estates of Deceased Persons Regulations No.7 of 1972 (Section 7). The followings are the brief facts:

Beverly Naviti and Donald Naviti were husband and wife. They were married and had the following children:

1. Suzie Naviti

2. Madlen Naviti

3. Tarika Naviti;

4. Donalyne Naviti; and

5. Junior Naviti.

On 22 December 2003, Beverly Naviti died intestate. In 2004, her surviving husband, Donald Naviti lived in a de facto relationship with one Salome Fred. Donald Naviti and Salome Fred got married on 2 June 2006. On 3 June 2006, the very next day, Donald Naviti died at 11.00AM o’clock living behind his surviving spouse, Salome Fred Naviti, and his children from his first marriage with Beverly Naviti. Mr. Donald Naviti died intestate. At his death, his properties include a house and land leasehold title No. 11/OB22 /054 and other moveable properties. The intestacy is estimated at 11,465, 000 Vatu.

Although the applications raises questions other than administrator of estate, such as the beneficial interest of the intestacy the main issue in this case is who is entitled to administer the intestate property: the surviving wife solely? The representative of the children? Or both conjointly?

THE LAW

Part IV and V of the Succession, Probated and Administration of Estate of Deceased Persons Regulation No.7 of 1972 contain the relevant provisions.

The relevant provision of Part IV is section 7. It provides:-

"Part IV – GRANTS OF LETTERS OF ADMINISTRATION

7. The Court may grant administration of the estate of a person dying intestate to the following person (separately or conjointly) being not less than twenty-one years of age-

(a) the husband or wife; or

(b) if there is no husband or wife to one or not more than four of the next kin in order of priority of entitlement under this Regulation in the distribution of the estate of the deceased; or

(c) any other person, whether a creditor or not, if there is no person entitled to a grant under the preceding paragraphs of this section residing within the jurisdiction and fit to be so entrusted or is the person entitled as aforesaid fails, when duly cited, to appear and apply for administration." (Emphasis).

The relevant provisions of Part V are sections 9 and 16. They read:

PART V – PROBATE AND ADMINSTRATION

9. Upon the grant of probate or administration, all the estate of which a deceased person died possessed, or entitled to, in the New Hebrides shall, as from the death of such person, pass to and become vested in the personal representative for all the estate and interest of the deceased therein, in the manner following, that is to say –

(a) On testacy or on partial intestacy, in the executor or administrator with the will annexed; and

(b) on intestacy, in the administrator. (Emphasis).

16. (1) where a person dies either before or after the commencement of this Regulation leaving infant issue and the value of the share of the estate of the deceased person to which an infant is entitled in distribution does not exceed ten thousand dollars, the court may, on the application of any such infant, or of any person on his behalf, authorize the personal representative to expend the whole or part of the share of such infant in the maintenance, advancement or education: provided that if the estate exceeds ten thousand dollars the Trustee shall apply. (Emphasis)

(2) The power or authority that the court may confer upon this section on a personal representative is in addition to an other power or authority, statutory or otherwise, that the personal representative may have to pay or apply capital money or assets, or the income thereof, to or on behalf of an infant. (Emphasis)

Applying the law to the facts in this case, I find that Salome Naviti is entitled to the administration of the intestacy. The children of the deceased have a beneficial interest over the intestacy. Their interest must be protected. I find that none of the children of Donald Naviti and Beverly Naviti has 21 years of age at the time of the hearing of this case. The evidence contained in the sworn statement filed in this case revealed tensions between the surviving wife (Second Applicant) and the children of the first marriage of the deceased Donald Naviti. The Applicant, Roger Naviti, shall be appointed as the representative of each of the children until they each reach 21 years of age.

The best option in this case is to appoint Mrs Salome Fred Naviti and Roger Naviti as administrators of the intestacy conjointly. Order is issued to this effect. A conference will be organized to assist the parties in the practical set up of the conjoint administration of the intestacy. The parties are invited to attend a conference at the Supreme Court in Port-Vila on the 1st June 2007 at 9.30 am o’clock in the morning. Both parties shall pay their own costs.

DATED at Port-Vila this 20th day of April 2007

BY THE COURT

Vincent LUNABEK
Chief Justice