Toomata v Mailo [2009] WSSC 34 (3 April 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE ESTATE: of ANNIE MARGARET TOOMATA VUI aka ANNIE TOOMATA (nee Hunt) late of Vaitoloa Samoa.
(Deceased)

BETWEEN:

BEN-ONI LEALOFI TOOMATA & others
Applicants

AND:

MARY MARGARET MAILO, administratrix
Respondent

Counsels: Mr TRS Toailoa for the applicant
Ms MV Peteru for the respondent

Hearing: 3 April 2009

Decision: 3 April 2009

DECISION OF NELSON J.

The issues in this case are fairly clear and the court is conscious that the applicants have invested time and money in travelling to Samoa for hearing of this matter. There is no need therefore to add this to a growing list of reserves and I am this afternoon delivering an oral decision after hearing the evidence and counsels submissions on the matter this morning.

The facts:

By application for letters of administration dated 27 August 2007 the respondent applied to be appointed administratrix of the estate of her late mother who died intestate on or about 23 August 1976, her father having also died on 13 May 1983. That application was consented to in writing by what I assume are the eldest four children of the marriage as listed in the affidavit in support of the application namely;

John Hunt, male of Auckland New Zealand, self employed;

Paris Hillary Toomata, male of Wellington New Zealand, taxi driver;

Elizabeth Moemua, female of Wellington New Zealand, housewife; and

Patricia Talosaga Tumaalii, female of Melbourne Australia, housewife.

The respondent sought to be appointed was Mary Margaret Mailo the mid child of the nine (9) children. The application was unusual in that the written consents of three of the four above referred children purported to also consent to an unconditional transfer of all the estate assets to the respondent administratrix. The fourth consent however being that from John Hunt contained a hand written notation in pencil that the consent was only to transfer the assets to the respondent "as administrator of my late mother's estate." No doubt because the majority of beneficiaries concurred, the court by order dated 30 August 2007 appointed the respondent administratrix of the estate of the late Annie Toomata Vui of Vaitoloa in Samoa.

It now appears from uncontested evidence placed before the court this morning that at that time there were serious differences of opinion among the younger four beneficiaries and their older siblings as to should be appointed administrator of their mother's estate. The younger four favoured appointment of the youngest sibling Lealofi Ben-Oni Toomata as administrator. There were also allegations and as I understand it from counsel for the respondent, counter allegations of mismanagement of monies set aside for administration of the estate and as to other matters none of which are immediately relevant to the present proceedings. However none of those matters were as they should have been disclosed to the court when the original application for letters of administration was made seeking the appointment of the respondent.

A motion has now been filed by Mr Toailoa as counsel for the estate and as the solicitor for the majority of the beneficiaries to revoke the appointment of the respondent because:

(i) that is the wish of the majority of the beneficiaries;

(ii) the majority support the appointment of Ben Toomata in her place; and

(iii) the respondent no longer has the confidence or support of the majority as they believe the respondent will attempt to convey the estate properties to herself as sole beneficiary.

Although not pleaded that way the real applicants are the majority of the beneficiaries and the real respondent is Mary Mailo the court appointed administrator and I will for the purposes of this judgment refer to them as such.

The majority of the beneficiaries now supporting Mr Ben Toomata are:

1. firstly, the eldest child John Hunt who has recanted in writing his previous consent to the respondents appointment;

2. Matilda Quinlan of Wellington, New Zealand;

3. Lydia Hytongue of Melbourne, Australia; and

4. Meridian Tonuu of Wellington, New Zealand as evidenced by their written consents annexed to the affidavit in support of Ben Toomata filed in this matter.

The oral evidence of Mr Toomata was that his appointment is also supported by his older sister Elizabeth Moemua and his older brother Paris Toomata but I note they have not filed written consents to that effect, neither have they filed a recantation of their earlier consents as John Hunt has done. They like the respondent did not appear at this mornings hearing. The court in those circumstances must therefore be careful in drawing conclusions as to whom they in reality do support. The final child of the marriage Patricia Tumaalii is according to the evidence of Mr Toomata still supportive of the original administrator Mary Mailo.

On a numbers basis therefore the numbers would seem to be in favour of Ben Toomata as nominated by John Hunt, Matilda Quinlan, Lydia Hytongue and Meredian Tonuu. And in favour of the respondent according to Ben Toomata’s evidence is definitely Patricia Tumaalii. But although Mr Toomata stated the other two original supporters of the respondent Paris Toomata and Elizabeth Moemua are now with their side I hesitate to accept that completely given that the tenor of his evidence is they were afraid of revoking their previous consents. And as noted this case has a contentious family background. Also I note that it would have been a simple enough exercise for them to have executed the necessary written consents, which they could have given to any of the parties to bring to court today or indeed to send to the solicitor acting for them Mr Toailoa. And they did not appear at this mornings hearing to give oral testimony of their support of the appointment of Mr Ben Toomata.

The only positive proof then remaining are their original consents to the respondents appointment and in the absence of cogent evidence to the contrary, these original consents still remain and must be taken to reflect their current position namely that as a matter of record they support the respondent.

This makes four beneficiaries in support of Mr Ben Toomata and three supporting the appointment of the respondent. This is a majority for Mr Toomata but a slender majority given that his oldest brother Mr John Hunt represents the swing voter that has recanted his earlier consent.

However the application before me as pointed out quite correctly by Mr Toailoa has not been contested by the Estate Administrator Mary Mailo. She was served the application in Wellington New Zealand on 29 November 2008 as evidenced by the affidavit of service filed by the process server. Pursuant to those documents she had 28 days to respond to the application. She instructed counsel to represent her but has failed even up to today's hearing to file any documents in opposition to the motion or indeed to file any documents at all. Her counsel has indicated her instructions are that the respondent does not oppose the application to remove her but does oppose the application to appoint Mr Ben Toomata in her place. Her counsel also indicated that her instructions were to seek the appointment of an independent third party as Estate Administrator and the suggestion was made that be the Public Trustee. This was an option floated with the parties in an attempt to settle the matter amicably but I am advised by counsels that it was rejected by the applicants who wish to pursue their motion before the court as is indeed their right.

If the respondent sought to oppose the applications, documents to that effect stating et al the grounds of opposition plus an application to the court to extend the time for filing such documents should have been made. The respondent's failure to do so is fatal to her case as the courts decision must be based on the evidence and material before it and the only material before it is the evidence of Mr Ben Toomata and motion and affidavit in support. His evidence shows clearly that the respondent no longer has the confidence or support of the majority of beneficiaries albeit a slender majority of one. It also shows that the respondent resides overseas as do all the beneficiaries and there is no evidence that she has been in Samoa for the past twelve months. Neither is there any evidence that she has appointed an attorney to act on her behalf during her absence.

Section 12(1) of the Administration Act 1975 provides:

"Where an administrator is absent from Samoa for 12 months without leaving a lawful attorney or desires to be discharged from the office of administrator or becomes incapable of acting as administrator or is unfit to so act, or where it becomes expedient to discharge or remove an administrator the Court may discharge or remove that administrator and may if it thinks fit appoint any person to be administrator in his place on such terms and conditions in all respects as the court thinks fit."

On the basis of the administrators non-residence in Samoa without appointment of an attorney to act in her stead she can be removed. On the basis she does not oppose the motion she can also be removed because section 12(1) uses the words "desires to be discharged from the office". On the basis that she no longer enjoys the confidence and support of the majority of the beneficiaries she can also be removed. On any of these grounds the respondent can be removed and the court has no difficulty with that application.

The real issue is as to her successor. Again the respondent's failure to file any documentation indicating her formal opposition to the application to appoint Mr Ben Toomata and her non-appearance at today's hearing is fatal to her case. However this does not prevent the court from appointing any other person in substitution of Mr Toomata if it thinks fit or in addition to Mr Toomata as the courts discretion in the matter is wide. Counsel has correctly referred to Brown v Brown [2002] WSSC 9 as representing the law governing the situation. That case laid down that the main primary consideration was the welfare of the estate beneficiaries and I quote from pg 12 of the judgment:

"From the authorities cited, it is clear that the court has a duty to see that trusts are properly executed. In carrying out that duty, the Court has an inherent jurisdiction in equity to remove a trustee and appoint a new trustee in his place to ensure proper execution of a trust. In the exercise of that jurisdiction, the principal guide is the welfare of the beneficiaries to be ascertained by looking at all the circumstances including the interests of the beneficiaries, the security of the trust property, the efficient and satisfactory execution of the trusts and the loyal and sound exercise of the powers given to the trustee. The jurisdiction must be exercise with caution since the removal of a trustee from office is no trivial matter."

The two options that have been advanced as available to the court are either to appoint an independent party such as the Public Trustee as sole administrator or to appoint Mr Ben Toomata as sole administrator. An independent party such as the Public Trustee is independent of the parties and has the advantage of impartiality. But in relation to the Public Trustee the delays experienced in administering those estates under his control are legendary. I am on the other hand reluctant given the one beneficiary majority in favour of the appointment of Mr Toomata and given that he is also a beneficiary and would benefit from a distribution of the assets of the estate to appoint him sole administrator. I have no reason to doubt Mr Toomatas honesty or integrity but in some respects given the solemn nature of the duties and responsibility of an estate administrator it is for his own protection that he not act alone in such matters. I also note that he normally resides outside of Samoa whereas the sole estate asset I am told comprises an entitlement to land registered to the beneficiaries grandfather situated in this country. And that this land according to the evidence on affidavit of Mr Toomata is already part of an estate currently under the administration of the Public Trust Office and the Public Trustee.

Therefore in my view the welfare of the beneficiaries considering all the circumstances would best be served by an appointment that utilizes a combination of Mr Toomata as the primary person responsible for administering his late mothers estate in conjunction with a third party to preserve the impartiality of and independence of actions to be taken by Mr Toomata. This would also have the advantage of alleviating any concerns the minority beneficiaries may have with regard to the proprietariness of the actions of the estate administrator. It is also my view that someone resident in Samoa is essential for the timely administration of the estate and for the pursuit of the Public Trust Office in relation to the estate asset that it is currently administering.

The following order is therefore to issue under section 12(1) of the Administration Act 1975:

1. The respondent is removed forthwith as administrator of the estate of Annie Toomata Vui housewife of Vaitoloa in Samoa;
   
2. In her place will be appointed Mr Ben Toomata and a co-administrator yet to be determined;
   
3. Mr Ben Toomata will be charged with the primary responsibility of administering the estate of his late mother but he must obtain the consent and approval of his co-administrator to any alienation or dispossession of estate lands and in particular any Deed of Conveyance of estate assets must be executed by both Mr Toomata and his co-administrator.
   

As to whom the co-administrator can be as counsel is aware the Public Trustee must consent to any citation of him as an administrator of the estate and from memory I seem to recall there is a provision that he cannot act as co-administrator and can only act in association with an advisory trustee or perhaps as a management trustee. I am sure Mr Toailoa is very familiar with these provisions of the Public Trust Act. I am therefore proposing to leave it in these terms for the moment. Matter adjourned to Monday 6 April 2009 lunchtime to give counsel time to consult with your clients while they are here in Samoa and to present a proposal as who the co-administrator could be.

Addendum:

The parties have now indicated their choice as co-administrator to be Loimata Hunt of Vaitoloa. He is also administrator of the estate of his mother who was the sister of Annie Toomata Vui. Furthermore he resides on the actual estate lands at Vaitoloa.

It is thereby further ordered that the said Loimata Hunt be appointed co-administrator of the estate of the late Annie Toomata Vui, housewife of Vaitoloa in Apia on the terms herein before provided.

JUSTICE NELSON