IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

CIVIL ACTION NO. 11 OF 2004

Between:

BIMLA WATI
f/n Ram Adhar
Plaintiff

and

PREM CHAND
f/n Shiu Narayan
Defendant

Mr. V. Maharaj for the Plaintiff
Ms. S. Devan for the Defendant

Date of hearing & submission: 16 May 2005
Date of judgment: 8 July 2005

JUDGMENT

By Originating Summons filed 14 July 2004 the plaintiff seeks an order that reasonable financial provision may be made for her out of the net asset of the estate of Shiv Narayan alias Shiu Narayan (the ‘deceased’) as the Court may think fit and for such ‘representation order and further or other relief in the premises as the Court shall deem proper.’

The summons is supported by the affidavit of the plaintiff. The defendant filed an Affidavit in Reply followed by a Reply thereto by the plaintiff. As ordered both parties filed written submissions on which they relied with the last of the submissions being filed on 25.11.04.

The applicant Plaintiff (Bimla Wati) is widow of the late Shiu Narayan (the ‘deceased’) who died on 12 September 2002. The deceased failed to provide for his widow in his alleged last Will dated 6 September 2002.

This Will is subject to challenge by the Plaintiff in a separate action (No. 9 of 2004) which is still pending wherein the plaintiff is seeking revocation of the grant of Probate of the said Will of 6 September 2002 which was granted on 13 February 2004.

This application is brought pursuant to Inheritance (Family Provision) Act Cap. 61 but this Act has been repealed by Inheritance (Family Provision) Act 2004 (Act No. 12 of 2004). The new Act came into force on 1 September 2004.

The present application will have to be heard under the new Inheritance (Family Provision) Act (No. 12 of 2004) (the ‘Act’) as Cap. 61 has now been repealed.

In the absence of any specific provision as to the mode of commencing the proceedings, it has been commenced by originating summons (vide Atkins Court Forms).

It is under section 3(1) & (2) of the 2004 Act that the plaintiff is entitled to make the application. It is provided:

“3. – (1) If any person (“the deceased person”) dies whether testate or intestate and adequate provision is not made for a spouse, child or dependant from the estate of the deceased person, the Court may, on application by or on behalf of the spouse, child or dependant, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the spouse, child or dependant.

(2)	The Court shall not make an order under this section in respect of a dependant unless it is satisfied that some provision should be made for the dependant having regard to the extent to which the dependant was being maintained or supported by the deceased person before his death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case.”

Background facts

The background facts are relevant to the application and these have been set out as follows by the plaintiff’s counsel in his submission:

(a)	Bimla Wati was the lawful wife of late Shiu Narayan see (paragraph 1 of Plaintiffs “first Affidavit”).

(b)	Bimla Wati was married to late Shiu Narayan on 4/3/1991 (see paragraph 2 of first affidavit).

(c)	Bimla Wati and deceased had no issues (see paragraph 3).

(d)	Shiu Narayan died on 12/9/02 at C.W.M. Hospital.

(e)	During his lifetime and specifically on 19/3/1986 the deceased had made a Will and in his Will he gave his first wife life interest in his estate and upon her death to his two sons, other than the Defendant, namely Abhay Chand and Dharmend Chand in equal shares.

(f)	The deceased had eight children from his first marriage. Their names could be found in paragraph 6 of the Plaintiff’s “first affidavit”.

(g)	The deceased first wife died in 1990 and shortly thereafter the deceased married the Plaintiff herein.

(h)	The deceased had a freehold property at 40 Volavola Road. There are two houses on one title. The deceased through the assistance of his two sons, namely Abhay Chand and Bhag Chand erected a 2 bedroom concrete house in which he resided, firstly with his first wife and upon re-marriage with the Plaintiff, until his death.

(i)	There is one other concrete house on the land, which was built by the Defendant and the Defendant and his family reside in it.

(j)	The title to the land C.T 10819 Lot 40 on DP 3971 is still in the name of the deceased.

(k)	The Plaintiff, shortly following the death of the deceased moved out of the premises, according to her, because of the threat from the Defendant.

(l)	The Plaintiff says, that after she moved out of the premises the Defendant let out the premises to a tenant at a rental of $300.00 per month but the Defendant says that the premises has been rented out at $150.00 per month (see paragraph 13 of the Defendant’s affidavit).

Whatever the rental, one thing is clear that it is the Defendant who is receiving the rentals and continues to use the rental himself exclusively.

The plaintiff has no income of her own. The estate property is free from encumbrances and is still in the name of the deceased.

Consideration of the application

The written submissions from both counsel have been considered by me.

As far as the estate is concerned as already stated the Will of the deceased allegedly executed by him on 6 September 2002 is being disputed and the said action is pending in Court.

If the Probate of the said Will is revoked in the pending action then Letters of Administration will have to be applied for and the plaintiff/applicant herein as the widow is the one likely to get the grant of Letters of Administration.

According to the defendant the estate does not derive any income from any source except from rent from one of the houses on the estate property. This is the same house which was formerly occupied by the deceased and after his death by his widow. The widow according to the evidence before me is not willing to stay in that house as she does not get on well with the defendant and she lived there under fear before she left the house.

By virtue of section 3(7) of the Act, which provides as follows, the court may order: (i) periodic payment or (ii) such portion of the sum ordered to be paid as falls upon the portion of the estate in which the beneficiary is interested:

“3.- (7) The Court may order a periodic payment or lump sum to be paid by any beneficiary in the estate, to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which the beneficiary is interested and exonerate such portion from further liability, and direct in what manner such periodic payment shall be secured, and to whom such lump sum shall be paid, and in what manner it shall be invested for the benefit of the person to whom the commuted payment was payable.

The defendant admits that ‘the plaintiff is entitled to some proceeds from the estate by reason of the fact that the plaintiff is a destitute’. The defendant says that he is ‘unable to support the plaintiff financially or in any way pay the plaintiff any proceeds from the estate as there is no cash in the bank left by the testator, however, her best option would be to resume her occupation in her former home or alternatively share the rent given the fact that the property that is in issue comprises only of a dwelling on a piece of land where the testator and the plaintiff resided’.

The defendant is leaving it to Court in its discretion to decide what is a reasonable provision under the Act.

The defendant is agreeable to letting the plaintiff live in the house of the testator or live in the house the executor and trustee are and ‘share the rental proceeds’.

Conclusion

To conclude, the Act does empower the Court to make orders as provided under the said subsections of section 3.

On all the facts and circumstances of this case the applicant is entitled to relief under the Act. The applicant is a destitute and receives destitute allowance. The defendant also has no objection to some provision being made for the applicant in the circumstances.

In the Privy Council case of Dillon v Public Trustee of New Zealand & Others [1941 A.C. at 295], on a somewhat similar provision as in s3(7) of the Act, it was held:

“….. The court, in considering how its discretion should be exercised and how far it is just and necessary to modify the provisions of a will, will pay regard to the circumstances in which the will is drawn as it is, to the interests of the members of the family, and to all relevant circumstances, among which may be the fact that the testator was under obligation to a third party.”

In considering the application it is important to know the purpose behind this provision under the Act. This has been stated as follows in Dillon at 301 and it fits the case before me:

“Their Lordships cannot regard it as a correct exposition of s.33 of the Family Protection Act to say that it imposes on a husband the obligation to make adequate testamentary provision for the maintenance and support of his wife. The statute does not impose any duty to frame a will in any particular way, and the testator did not fail to observe any statutory obligation by making his will as he did. What the statute does is to confer on the court a discretionary jurisdiction to override what would otherwise be the operation of a will by ordering that additional provision should be made for certain relations out of the testator’s estate, notwithstanding the provisions which the will actually contains. If the testator does not make adequate provision in his will for wife, husband, or children, he does not thereby offend against any legal duty imposed by the statute. His will-making power remains unrestricted, but the statute in such a case authorizes the court to interpose and carve out of his estate what amounts to adequate provision for these relations if they are not sufficiently provided for. The interposition of the court should take place, of course, only after considering all relevant circumstances, and among these circumstances may be the fact that the testator was under obligation to third parties”.

As a further guideline on applications of this nature the following passage in Dillon (supra at 303 – 304) is most useful and capable of being applied to the case on hand.

“The manifest purpose of the Family Protection Act, however, is to secure, on grounds of public policy, that a man who dies, leaving an estate which he distributes by will, shall not be permitted to leave widow and children inadequately provided for, if the court in its discretion thinks that the distribution of the estate should be altered in their favour, even though the testator wishes by his will to bestow benefits on others, and even though he has framed his will as he contracted to do. The court, in considering how its discretion should be exercised, and how far it is just and necessary to modify the provisions of the will, will pay regard to the circumstances in which the testator’s will is drawn as it is, and the interests of the respective members of the family, but, if the Court comes to the conclusion that no adequate provision has been made in the will, such as is called for by s. 33, then the jurisdiction of the court to alter the distribution of the estate in favour of the applicant (widow, widower, or children, as the case may be) cannot be doubted. 

Orders

In the outcome, bearing in mind the provisions under the Inheritance (Family Provision) Act of 2004 particularly s.3 which provides for the making of financial provision pertaining to the estate of a deceased and the defendant being agreeable to the making of such a provision, I grant the application.

I therefore order that pending the determination of the said High Court action, the defendant do pay to the plaintiff market rent of the premises that was occupied by the deceased and the plaintiff and by the plaintiff alone after the deceased’s death It is further ordered that a valuer or a real estate agent be appointed by the parties at the cost of the defendant within 14 days to ascertain the market rental of the subject premises And it is further ordered that once the market rental is determined the premises should be let out on rent at such rental or thereabouts and this should be done within two months of this judgment but the current rent should be paid to the plaintiff with effect from 1 August 2005. Liberty is reserved to the parties to apply generally And each party bear his/her own costs of these proceedings.

D. Pathik
Judge

At Suva
8 July 2005