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Work v Work [2023] FJHC 254; HPP51.2021 (26 April 2023)

In the High Court of Fiji
At Suva
Civil Jurisdiction

Civil Action No. HPP 51 of 2021

In the estate of Ezra Walker Work

Chris Herbert Work
Caveatee

v.

Esther Angela Work aka Esther Angela Hardcastle
Caveator

Counsel: Ms L. Vaurasi for the Caveatee
Ms A. Rogers for the Caveator
Date of hearing: 24^th May,2022
Date of Judgment: 26^th April,2023

Judgment

1. The Caveatee, in his summons seeks that Caveat No. 08/2021 lodged against the estate of Ezra Walker Work, (deceased) by the Caveator be removed and letters of administration be granted to him. The application is made in terms of section 47(1) of the Succession, Probate and Administration Act.
   
2. The Caveatee, in his affidavit in support states that he is applying to be Administrator of the estate of the deceased. He is the great grandson of the deceased. He had six children. The Caveatee’s father William Blunding Work is son of Christopher Blunding Work, a son of the deceased. The Caveator migrated to the US over forty years ago. She is over seventy years old and has been confined to a wheelchair. A Warning to Caveat was issued on 16 April, 2021, and served on the solicitors of the Caveator on 22 April, 2021. The Caveator has failed to show cause why letters of administrators should not be granted to him. She has not filed Appearance to Warning and taken no further steps.
   
3. The affidavit in opposition filed on behalf of the Caveator states that the Caveator is the daughter of Norman Work, son of Willis Waterman Work, (a son of the deceased). The children of the deceased were named as beneficiaries in the Will in equal shares. The deceased appointed Christopher Blunding Work and James Dyer Work as executor and trustee of his Will. The appointed trustees did not carry out their duties in administering the estate. The Caveator is 84 years. The affidavit in support is irregular and effective The Caveatee has no better right to be granted letters of administration than the Caveatee. He is the great grandson of the deceased. The Caveator is his great granddaughter. No other beneficiary has given consent for the Caveatee to obtain letters of administration. The solicitors for the Caveatee were aware of the Caveator’s interest.
   
4. The Caveatee, in his affidavit in reply states that the affidavit in opposition fails to state the reason the Caveator cannot depose to the affidavit in opposition. He annexes consent from various lineages according to the family tree, consenting to his administering the estate.
   
5. The affidavit in reply filed on behalf of the Caveator reiterates the reasons for failing to file Appearance to Warning.
   

The determination

6. The Caveatee seeks that Caveat No. 08/2021 lodged against the estate of the deceased be removed
   
7. The Caveatee filed a Warning to Caveat on 16^th April,2021.
   
8. The affidavit of service of Warning to Caveat has been filed.
   
9. The NCPRs are applied in Fiji by virtue of section 52(2) of the Succession, Probate and Administration Act.
   
10. Rule 44(10) of the NCPRs states:

A caveator having an interest contrary to that of the person warning may within eight days of service of the warning upon him (inclusive of the day of such service)or 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 entry 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.(emphasis added)

11. Rule 44(12) states :

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 an 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.

12. In Reddy v Webb, [1994] FJCA 36; Abu 0014.94s (11 November, 1994) the judgment of the Court stated:

We note that the procedure for dealing with a caveat under the Rules is different from removal of a caveat provided under s 47 of the Act. Under the Rules, a caveat shall remain in force for six months (O 44 (4)). A caveat may also cease to have any effect if the caveator does not file an appearance or take out a summons for directions (r 44 (11)). Under these Rules, a caveat may cease to have any effect in this way without there being any need for resort to court proceedings. However, under the Act, s 47 provides that in every case where a caveat is lodged, an application may be made to the court to remove the caveat...

The application before the trial judge was to remove the caveat under s 47 (1) of the Act. On what grounds should a caveat be removed? The section does not give any indication. It simply says "Such application may be heard and order made upon affidavit or oral evidence". This gives the court a discretion.

In formulating the discretion of the court in such an application, we are of the opinion that the Court may have regard to the practice set out in the Rules as a guide. This is not the same as applying the Rules. The relevant rule for consideration in this regard is r 44 (7). For the purposes of a warning, a caveator is required to give particulars of a contrary interest. We would adopt this and formulate that a caveator should establish a contrary interest to the person applying for the removal of a caveat.

Again in determining this issue, the Court may have regard to the nature of the contrary interest that is required to be particularised by the caveator under the Rules. Again the relevant rule in this regard is r 44 (7) which specifies that nature of the interest is to be "any contrary interest in the estate". We would adopt this and formulate that for the purposes of removing a caveat under s 47 of the Act, the caveator is required to establish a contrary interest in the estate of the deceased.(underlining mine)

13. Ms Rogers, counsel for the Caveator submitted that the caveat has expired and cannot be cancelled.
    
14. In my judgment, as stated above in Reddy v Webb,(supra) and reiterated by Calanchini J (as he then was) in Amos v Fiji Trustee Corp Ltd, [2010] FJHC 617 probate 48456.2009(28 July,2010) in every case where a caveat is lodged, an application may be made under section 47 to remove the caveat.
    
15. The Caveator has not filed an Appearance to Warning as required by the NCPR to show her contrary interest in the estate.
    
16. The affidavit in opposition contends that the Appearance to Warning was “filed on or about 15^th October,2021”, as movement of people including her solicitor was restricted, due to the lockdown arising from Covid 19. It was vetted and returned by the Registry. The Caveator refers to the Hon Chief Justice letter of 13^th July,2021, to the LPU regarding Covid Operations.
    
17. The respondent has not explained as to why an Appearance to Warning was not filed even after the time stipulated in Rule 44(10) lapsed.
    
18. The Caveatee states that the Caveator migrated to US many decades ago. The affidavit in opposition states that the Caveator is 84 years. The reply states she is 80 years.
    
19. I would also note that importantly, as pointed out by by Ms Vaurasi, counsel for the Caveatee, no reason has been given as to why the Caveator has not deposed to the affidavits in opposition nor the reply filed on her behalf.
    
20. In my view, the Caveator has not shown her capability to administer the estate.
    
21. The affidavit in opposition states that both the Caveator and the Caveatee are great grandchildren of the deceased.
    
22. It is also stated that the no other beneficiary has given consent for the Caveatee to obtain letters of administration.
    
23. The plaintiff’s affidavit in reply provides consent from several beneficiaries to the Caveatee administering the estate of the deceased.
    
24. I find no contrary interest shown by the Caveator.
    
25. In the result, the application to remove Caveat No. 08/2021 filed by the Caveator is allowed.
    
26. The Caveatee’s summons succeeds.
    
27. Orders
    1. Caveat 08/2021 lodged against the estate of Ezra Walker Work is removed.
    2. The Caveator shall pay the Caveatee costs summarily assessed in a sum of $1000.00
       

A.L.B.Brito-Mutunayagam
Judge
25^th April, 2023