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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
PROBATE JURISDICTION
Caveat No. 07 of 2001
IN THE ESTATE of SYLVIA MARY STEPHENS a.k.a SILIPA TAGICI late of 19 Howell Road, Suva, in the Republic of Fiji, Businesswoman, Testate.
BETWEEN:
HENRY STEPHENS of Korolevu, Coral Coast, Service Station Operator.
CAVEATOR
AND:
SANDRA MAY LOUISE KWAI of Pacific Harbour, Fiji and of 6 Chamberlain Street, Narwee, NSW 2209, Australia, Domestic Duties.
CAVEATEE
BEFORE: Master Deepthi Amaratunga
COUNSEL: Mr. Odriscol G. for the Caveatee
Mr. Qoro J. for Caveator
Date of Hearing: 9th September, 2011
Date of Ruling: 9th November, 2011
RULING
"(10) A caveator having an interest contrary to that of the person warning may within eight days of service of the warning upon his (inclusive of the day of such service) or at any time thereafter if no affidavit has been filed under paragraph(12) below, enter an appearance in the registry in which the caveat index is maintained by filing Form 5 and making an entity in the appropriate book, and he shall serve forthwith on the person warning a copy of Form 5 sealed with the seal of the court."
'As no other form of appearance is given in Tristram and Coote I am prepared to accept the fail out to comply with the form as set out in the book vitiates any appearance not entered in accordance with that form. This makes common sense as the person filing a Warning to Caveat must be entitles to know the interest in the estate claimed by the Caveator. I therefore accept the submission of the Application in Action in HPC 21 of 1997.'
FORM 5
APPEARANCE TO WARNING OR CITATION
In the High Court of Justice
Family Division
The Principal [or ............................................................District Probate] Registry Caveat No. ........................dated the ..................day of ...................19.................. [Citation dated the ..............................................day of...................19.................]
Full name and address of deceased: ...........................................
Full name and address of person warning [or citor]: ..........................................
(Here set out the interest of the person warning, or citor, as shown in warning or citation.)
Full name and address of caveator [or person cited].
(Here set out the interest of the caveator or person cited, stating the date of the will (if any) under which such interest arises.)
Enter an appearance fort the above-named caveator [or person cited] in this matter.
Dated the ............................................................day of .......................19...............
(Signed)
Whose address for service is:
Solicitor (or 'In person')
'(12) If no appearance has been entered by the caveator or no summons has been issued by his under paragraph(6) of this rule, the person warning may at any time after eight days of service of the warning upon the caveator (inclusive of the day of such service) file and affidavit in the registry in which the caveat index is maintained as to such service and the caveat shall thereupon cease to have effect provided that there is no pending summons under paragraph(6) of this rule.
'5. I then instructed my solicitors to file a warning to caveator, which they did and which is stamped by the court on 25th May 2011. This was served to the Caveatee's solicitors on 2nd June 2011.'
Dated at Suva this 9th day of November, 2011.
Mr. Deepthi Amaratunga
Master of the High Court
Suva
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URL: http://www.paclii.org/fj/cases/FJHC/2011/716.html