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Devi v Lal [2023] FJHC 351; HPP36.2020 (24 May 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No.: HPP 36 of 2020


BETWEEN : URMILA DEVI of Godfrey Road, Nasinu.


PLAINTIFF


AND: SANGITA SAJESHNI LAL of Lot 7 Qilu Street, Nakasi, Fiji, Secretary as EXECUTRIX & TRUSTEE in the ESTATE OF MANOJ KUMAR of Kuku Place, Nadawa, Nasinu, Operations Manager.


DEFENDANT


Counsel : Plaintiff: Mr. Nand A and Ms. Singh A

Defendant: Mr. Reddy J and Mr. Yong M
Date of Hearing : 15th, 16th, November 2021
Date of Judgment : 24.5.2023


Catch Words
Partial Revocation of Last Will- Sections 13 A(2) 13 A(3) (a) or (b), , Section 15 (aa) of Wills Act 1972- qualification for Revocation- Any evidence- Balance or Probability- revoke in toto - intention at the time of divorce to revoke - Section 3 of Inheritance (Family Provision) Act 2004- exclusive interpretation- dependent-spouse , de facto partner – not included..


JUDGMENT

INTRODUCTION


  1. Plaintiff who was the de facto partner of late Manoj Kumar, is seeking declaration as to the ‘validity’ of the appointment of executor, and grant of life interest to Defendant, in the last will of late Manoj Kumar made on 27.7.2016. Defendant was the former wife of late Manoj Kumar and executor and trustee in terms of last will of 27.7.2016. Plaintiff, also sought to revoke the probate granted in terms of the said last will to Defendant and also declaration that the deceased died intestate, and also letters of administration to be issued to her. The request for declaration that late Manoj Kumar died intestate is inconsistent with paragraph six of statement of claim and also admitted facts contained in paragraph six of Pre Trial Conference Minutes and her evidence. Plaintiff cannot contest the last will of late Manoj Kumar and also seek application of Section 13A of Wills Act 1972 which applies when there is a properly executed last will for partial revocation. Plaintiff’s alternate claim is based on Section 3 of Inheritance (Family Provisions) Act 2004 as a ‘dependent’ of the deceased.
  2. Plaintiff did not contest the last will in her evidence, but relied on Section 13 A of Wills Act 1972 to seek revocation of appointment of Defendant executor of the last will and also to revoke ‘beneficial gifts’ and ‘appointment’ made in terms of, the last will.
  3. Defendant and late Manoj Kumar, were divorced subsequent to the making of the said last will. Section 13A (2) (a) of Wills Act 1972, allows any beneficial gifts and appointment , to former spouse to be terminated if the last will was made prior to the divorce but there is a qualification to that provision, contained in Section 13A (3) of the same Act.
  4. Accordingly, any beneficial gifts and or appointment from a last will made prior to divorce cannot be revoked if Section 13 A (3) (a) or (b) is applicable. If the court is satisfied on any evidence ‘that the deceased did not, at the time of termination of the marriage, intend to revoke the gift or appointment’, then Section 13A (2) of Wills Act 1972 is not applicable.
  5. When the last will was made on 27.7.2016, Defendant and late Manoj Kumar were separated for more than five years, and Plaintiff was already in to the de facto relationship with Plaintiff for five years. Defendant had also obtained restraining order against him.
  6. Despite this, deceased appointed Defendant as an executor of his last will and also gave her life interest of all the properties belonging to his estate, while bequeathing the same to their son.
  7. It is undisputed that deceased preferred his son who is a minor, over Plaintiff and Defendant, to inherit all his properties. So, it is probable that the best person to be the trustee and executor of all the properties is the mother of the same child.
  8. As the mother of his child, deceased had thought it was in the best interest of the child to entrust the trusteeship of the same properties and also given life interest to Defendant though deceased had already left her and had a stable de facto relationship with Plaintiff.
  9. It is also noted though there was a divorce there was no property distribution among them. This also a factor to deduce the intention on the part of deceased at the time of divorce, which was only a formality due to de facto relationship with Plaintiff, while being married and having a child from Defendant.
  10. Late Manoj Kumar desired to grant life interest of all his properties to Defendant and upon her death to devolve the same to her son in terms of his last will. As all the properties were bequeathed to son of Defendant it is also illogical for deceased to appoint any person other than Defendant, including Plaintiff, as an executor and trustee of the properties bequesthed.
  11. Defendant is also a co-owner to the main property belonging to the estate of late Manoj Kumar and had continued mortgage payments to date.
  12. The circumstances are such that there is proof ‘on balance of probabilities’ to satisfy the court that testator did not ‘at the time of termination of the marriage, intend to revoke the gift, power of appointment or appointment’ in his last will made on 27.7.2016.
  13. Section 15 (aa) of Wills Act 1972, allows ‘a will or codicil or any part thereof’, to be revoked, in terms of Section 13A of the same Act. Section 13 A read with Section 15(aa) does not allow the revocation of will in toto when there are beneficiaries other than former spouse.
  14. The alternative claim as pleaded in the statement of claim is based under Section 3 of Inheritance (Family Provision) Act 2004, as a ‘dependent’ exclusively interpreted under Section 2 of the Act. De facto partner is not included in the interpretation of ‘dependent’. Only spouse, child or dependent as exclusively interpreted in the said Act can make a claim under that Act.
  15. De facto partner is not included as ‘dependent’ as pleaded in the alternate claim , and this can only be done through an amendment to Inheritance (Family Provision) Act 2004 by inclusion of de facto partner to “spouse” or “dependent”.
  16. Plaintiff’s both claims are based on statutes and interpretation of them on to the evidence provided at hearing. Plaintiff fails both claims.

FACTS


  1. Following Facts are agreed between the parties at the pretrial conference
    1. Deceased died on 15.3.2020.
    2. ‘Deceased during his life time had executed his last will and testament on 27th day of July, 2016, bequeathing all his personal and real estate to Defendant for her lifetime and thereafter to his son Ayush Daiwik Kumar’.
    1. Defendant was appointed as trustee and executor under above last will.
    1. Deceased was married to Defendant 4.6.2004 and they had a child born on 29.1.2008.
    2. Deceased divorced from the Defendant on 24.9.2019.
    3. No provision was made in the last will of the deceased to benefit Plaintiff.
  2. The Plaintiff is claiming the Estate of Manoj Kumar as the de-facto partner of the late Manoj Kumar for over nine years till his death.
  3. Since 2011 Plaintiff and late Manoj Kumar had de facto relationship and he lived together for nearly nine years before his demise. Defendant had also obtained a restraining order against late Manoj and had lived separately since 2011 though they had communicated directly.
  4. It is not disputed that Defendant and late Manoj Kumar, bought a property during their marriage on 31.5.2005 comprised in CT 24430 and both had contributed to purchase of the same and Defendant continued payments for the mortgage to date. Both had equal shares in the property transferred to both as co-owners subject to mortgage and also a charge registered by FNPF to secure their contribution at the time of purchase.
  5. This was the matrimonial property where both Defendant and late Manoj lived, before he left Defendant in 2011 to live with Plaintiff as de facto partner. Defendant remained in the said property while single handedly making payments for the mortgage.
  6. Deceased and Defendant did not marry after divorce.

ANALYSIS


  1. Plaintiff in her statement of claim at paragraph six had admitted execution of the last will and Testament of late Manoj Kumar on 27.7.2016.
  2. This fact was also admitted in the pre trial conference minutes at paragraph six and in Plaintiff’s evidence she confirmed that she is not contesting the last will.
  3. Plaintiff is seeking, revocation of last will made on 27.7.2016 in terms of Section 15(aa) of Wills Act 1972 in the statement of claim. Section 15 (aa) of Wills Act 1972 reads;

“15. A will or codicil or any part thereof is not revoked otherwise than-

(a) .......

(aa) by termination of marriage as provided for in section 13A;".(emphasis added)


  1. Accordingly a termination of marriage subsequent to a last will only revoke last will to the extent that is provided under Section 13 A of Wills Act 1972. So in terms of Section 15(aa) of the Act, only partial revocation is possible when there are other beneficiaries other than former spouse of testator. The revocation allowed under Section 13A of Wills Act 1972 only relate to the gifts or appointments made in the last will to former spouse.
  2. It is misconceived to seek revocation in toto of the last will under Section 13A read with Section 15(aa) of Wills Act 1972, when there are beneficiaries other than former spouse. Apart from that even a ‘charge given for the payment of any debt, in favour of the former spouse’ is not revoked in terms of said provision.
  3. In this instance as deceased had bequeathed all the properties belonging to him to his son who is a minor, subject to life interest, and had also appointed the child, as co-executor and co-trustee to the estate, indicating that deceased wanted his son when he attained the age of majority to become a co-trustee and executor. These appointments and grants cannot be revoked, based on the termination of marriage between late Manoj Kumar and Defendant.
  4. In the statement of claim sought ‘the court to pronounce against the validity of the said’ last will, was based on the misconceived legal position that Section 15 (aa) of Wills Act 1972, revokes the last will in toto.
  5. Defendant’s written submission has not addressed this issue and was equally misconceived and proceeded to propound the last will summoning the solicitor who executed the last will. The legal position is that subsequent divorce will affect only certain gifts and appointment of former spouse, and should be clearly distinguished from challenging the validity of the last will.
  6. So the ‘revocation’ sought by Plaintiff, needs to be construed in terms of the pleadings and also admitted facts at the pre trial conference, and also proper legal interpretation of Section 15(aa) read with Section 13A of Wills Act 1972, which allows only a partial revocation of last will made on 27.7.2016, as minor son was a beneficiary of the said last will.
  7. Plaintiff cannot approbate and reprobate on last will. When Plaintiff had pleaded statutory provision contained in Section 15(aa) of Wills Act 1972, to revoke, it required application of Section 13 A of Wills Act 1972, which allows revocation of beneficial gifts and appointment of former wife for revocation. This is not revocation of last will in toto.
  8. This is not to construe, revocation of last will in toto which is the position if there is subsequent marriage in terms of Section 15 read with Section 13 of Wills Act 1972. The basis of the Plaintiff is the divorce between Defendant and late Manoj Kumar, which does not allow revocation of any grants in last will other than to former spouse.
  9. It will be inconsistent to for Plaintiff to seek revocation of last will in toto, when it is already admitted in paragraph six, of statement of claim and also paragraph six in the pretrial conference minutes.
  10. Plaintiff’s claim for ‘revocation’ of last will is to be considered as claim seeking partial revocation of last will made on 27.7.2016, based on Section 13A of Wills Act read with Section 15(aa) of Wills Act 1972. Plaintiff’s request for declaration that deceased died intestate, is also based on the same basis as she admits the last will.
  11. Plaintiff admits the execution of last will, and her claim against Defendant two fold
    1. As the last will was made on 27.7.2016 prior to divorce between deceased and Defendant on 24.9.2019 the appointment of Defendant as executor and trustee and also grant of life interest of all the properties, were revoked in terms of Section 13A[1] of Wills Act 1972
    2. Alternatively, Plaintiff claims a lump sum in terms of Section 3 of Inheritance (Family Provisions) Act 2004 as ‘dependent’ of deceased.
  1. Partial Revocation of Last Will in terms of Section 13 A of Wills Act 1972
  1. According to the pleadings Plaintiff’s claims are based on two specific statutory provisions, hence the relevant statutory provisions needs interpretation and application of the facts presented in evidence. Most of the material facts were not disputed.
  2. So, the Plaintiff’s claim was based on Section 13 A of Wills Act 1972 to invalidate the appointment of Defendant under last will as executor and also to invalidate the grant of life interest of the properties of late Manoj Kumar.
  3. There is no dispute that son of Defendant and late Manoj Kumar, inherited from last will, all the properties belonged to late Manoj Kumar as Section 13 A of Wills Act 1972, has no application to a child of deceased. It does not apply to ‘charge given for the payment of any debt, in favour of the former spouse’ or conditions stated in Section 13A(3) of Wills Act 1972.
  4. Section 13 A of Wills Act 1972, states,

“13A.-(1) In this section-

"termination of marriage" means either dissolution of marriage by an order of the court or annulment of a void or voidable marriage by order of the court and, in either case, whether or not the testator is to be regarded at fault including any order to such effect made in another country, provided that it is recognised by the law of the Fiji Islands;

"former spouse" in relation to a testator, means the person who immediately before the termination of the testator's marriage, was the testator's spouse or in the case of a purported marriage which is void, was the other party to the purported marriage.

(2) Where a testator has made a will and the testator's marriage is afterwards terminated-

(a) any beneficial gift under the will, other than a charge given for the payment of any debt, in favour of the former spouse of the testator and any power of appointment conferred on the former spouse is revoked;

(b) any appointment under the will of the former spouse of the testator as executor, trustee or guardian shall be taken to be omitted from the will; and

(c) any property which would, but for this section, have passed to the former spouse of the testator pursuant to a beneficial gift referred to in paragraph (a) shall pass if the former spouse had predeceased the testator, but no class of beneficiaries under the will shall close earlier than it would have closed if the beneficial gift had not been revoked.

(3) Paragraphs (a) and (b) of subsection (2) do not apply where-

(a) the Court, on the balance of probabilities, is satisfied by any evidence (whether admissible before the commencement of this section or otherwise), of statements made by the testator, that the deceased did not, at the time of termination of the marriage, intend to revoke the gift, power of appointment or appointment; or

(b) the gift, power of appointment or appointment, as the case maybe, is contained in a will which is republished after the termination of the marriage by will or codicil which evidences no intention on the part of the testator to revoke the gift, power of appointment or appointment.

(4) This section does not affect-

(a) any right of the former spouse of a testator to make any application under the Inheritance (Family Provision) Act; or

(b) any direction, charge trust or provision in the will of a testator for the payment of any amount in respect of any debt or liability of the testator to the former spouse of the testator or to the executor or administrator of the estate or the former spouse.”(emphasis added)

  1. According to Section 13A (2) of Wills Act 1972, ‘any beneficial gift’ under a last will or ‘any appointment’ under the last will made to former spouse is revoked if the termination of marriage was subsequent to the making of the last will that made the grant or appointment.
  2. The revocation of any grant or appointment made under a last will in terms of Section 13A (2) of Wills Act 1972, is not absolute and it is subject to Section13A (3) of Wills Act 1972. So, if there is ‘any evidence’ to satisfy a court the condition under Section 13A (3), the Section 13A (2) ‘do not apply’.
  3. So in my mind , in order to seek an order for partial revocation of a last will in terms of Section 13A (2)of Wills Act 1972, court needs to consider section 13(3) of Wills Act 1972 as proof of later, will negate the application of former, by using words ‘do not apply’.
  4. In other words in order to ‘apply’ Section 13A of Wills Act 1972, the court needs to be ‘satisfied’ on ‘balance of probabilities’ the ‘intention’ of the deceased at the time of divorce.
  5. Accordingly ‘any evidence’ can be considered by the court to satisfy the court on balance of probabilities that deceased ‘did not at the time of termination of the marriage’ intended to revoke the gift or appointment made under said last Will.
  6. So instead of proving the last will Defendant may elicit evidence to satisfy the court on balance of probability that deceased did not intend to revoke the gift or appointment made under last Will dated 27.7.2016 at the time of divorce on 24.9.2019.
  7. Plaintiff admitted the last will in her evidence and also stated that they were having a very happy relationship in 2016 when the last will was made. So despite the happy de facto relationship deceased desired to secure the future of his child and accordingly made Defendant as trustee and life interest holder to all the properties under last will made on 27.7.2016. Deceased was aware of his social responsibility despite his preference to Plaintiff to Defendant as life partner.
  8. There were no direct evidence to state of mind of the deceased at the time of divorce, both Plaintiff and Defendant did not make an effort to show the status of mind of deceased at the time of his divorce as required in Section 13A (3)(a) of Wills Act 1972.
  9. The legislation required the state of mind, ‘at the time of divorce’ of a deceased person, to be proved through evidence. It may be a tall order to prove, through direct evidence, and court needs to consider circumstances under which the divorce was obtained and the prior and subsequent conduct in order to deduce the intention of a deceased person at the time of divorce.
  10. This is different, if Plaintiff got married to late Manoj Kumar after divorce as subsequent marriage will revoke the last will in terms of Section 15(a) read with Section 13 of Wills Act 1972. A codicil or subsequent last will also can revoke a previous last will and the absence of these also substantiate , though not determinant, that deceased did not want to change last will , at the time of divorce from Defendant.
  11. In fact as Defendant stated in her evidence, the divorce was only a formality as their marriage had over , more than eight years prior to the divorce as deceased had left her and lived with Plaintiff since 2011.
  12. So at the time of obtaining divorce, on 24.9.2019 deceased had lived with Plaintiff for over eight years as de facto partner and Defendant had lived in the matrimonial home with her son and had also obtained restraining order against deceased. So divorce was only a ‘formality’ as their marriage was only confined to paper by that time.
  13. Deceased as well as Defendant did not consider the time of divorce to change anything other their legal status. It is highly improbable, in such a scenario for deceased to intend to revoke the life interest and or appointment of trusteeship to Defendant only because of divorce. The major factor to support such an intention is the eight –year- long living together in a permanent relationship with Plaintiff, at the time of divorce and the making of last will during same relationship in 2016.
  14. The intention of a deceased party at the time of divorce, can be deduced from implications, subsequent behavior or utterances or including and not limiting certain acts and omissions, and other circumstantial evidence. All the above support the intention that deceased intended not to change anything in his last will at the time of divorce.
  15. Defendant had produced evidence to prove the last Will. This cannot prove the intended desire of deceased at the time of divorce, which Defendant had not addressed in the written submissions.
  16. Plaintiff did not state any change of circumstances of change of mind of deceased at the time of divorce as to his properties at all. It seemed they did not talk about the property of the deceased, at all and lived happily despite developing bad health of late Manoj Kumar.
  17. So on the evidence before the court the divorce of late Manoj Kumar and Defendant did not change any status quo, as to their respective minds and only a formality to forgone conclusion by that time.
  18. Defendant, in her evidence stated that around 2016 he knew that he was sick and wanted to secure the property where both of them had invested money and wanted the propriety comprised in CT 24430, to be inherited to their son. This was prior to making the last will on 27.7.2016. She also said the last will was made by late Manoj Kumar and she did not take part in the making of the last will.
  19. Deceased had ample time to change his mind to revoke the last will or revoke the appointment of Defendant since 2016 till his death, but did not do so. Defendant and late Manoj Kumar obtained a divorce on 24.9.2019 but, at that time or after that no application for property distribution was made, these subsequent conduct by the deceased , can infer the state of mind at the time of making the last will on 27.7.2016, prevailed till his death.
  20. In cross examination as to why they obtained a divorce Defendant replied ‘it was done for formality’ and they had communication between them even before he left to NZ and some deterioration of his health occurred.
  21. Deceased was a common tenant to the property comprised in CT 24430 which was obtained through a mortgage which remains on the title and Defendant continues payments for that. In such a scenario it is illogical for the deceased to grant trusteeship and or life interest of such property to de facto partner.
  22. There is undisputed evidence that deceased wanted his properties to be inherited to his son even at the time of death, indicating unchanged mind to bequeath his properties to his son, who was a minor.
  23. There was no evidence that Defendant had intended to give any property to Plaintiff who was the de facto partner for nine years. It may be due to nature of properties he held and his desire to bequeath all to his son.
    1. Dhan Raji who is the mother and Utam Kumar who is the mother of the Late Manoj Kumar stated that late Manoj told them, that he wanted his property his to be inherited to his son.
    2. The brother of the Late Manoj Kumar in his evidence stated that he had picked his brother up from the Airport together with the Plaintiff and others at Nadi and they had then travelled to Tavua together to visit some family members. He had then experienced some problems with his health when he had to be rushed to the Tavua Hospital where he later died. This witness then stated that the late Manoj Kumar on his deathbed had informed him, in the presence of the Plaintiff, of his intention that his share in his property to go to his son. These are not denied by Plaintiff.

B. Alternate Claim for Lump Sum as Dependent of Deceased in terms of Section 3 of Inheritance (Family Provisions) Act 2004


  1. Plaintiff had pleaded alternative claim under Section 3 of Inheritance (Family Provision) Act 2004, but this has no application to De facto partner. It reads;

“Power of Court to order provisions


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.


(3) The Court may-


(a) impose conditions to the order;


(b) order that the provision be paid out as a lump sum or a periodical or other form of payment; or


(c) refuse to make an order in favour of a spouse, child or dependant whose character or conduct is such as, in the opinion of the Court, disentitles the spouse, child or dependant to the benefit of an order, or whose circumstances are such as to make such refusal readable.


(4) Any payment ordered under this Act shall, unless the Court otherwise directs, fall rateably upon the whole estate of the deceased person or upon so much thereof as is or may be directly or indirectly subject to the jurisdiction of the Court.


(5) An order made under this section shall have effect as if it were a codicil to the will of the deceased or, in the case of intestacy, as if it were a will of the deceased person.


(6) The Court may, by an order or any subsequent order, exonerate any part of the estate of the deceased person from the order, after hearing any party that may be affected by such exoneration as it thinks necessary, and may for that purpose direct the personal representative to represent, or appoint any person to represent, any such party.


(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.


(8) Where an application has been filed on behalf of any person, it may be treated by the Court as, and, so far as regards the question of limitation period for application shall be deemed to be, an application on behalf of all persons who might apply.


(9) The personal representative, the Public Trustee of Fiji or any person acting as the next friend of any infant or any mentally ill person, may apply on behalf of any person being an infant, or being mentally ill in the case where such person might apply, or may apply to the Court for directions as to whether he ought so to apply, and, in the latter case, the Court may treat such application as an application on behalf of such person for the purpose of avoiding the effect of any limitation period.


(10) Unless the Court otherwise directs, no application shall be heard by the Court at the instance of a party claiming the benefit under this Act unless the proceedings for such application be instituted within 9 months after the death of the person; but the Court may at its discretion hear and determine an application although a grant of probate or letters of administration has not been made.


(11) A person who, if a declaration of legitimacy were made upon his application under section 5 of the Legitimacy Act (Cap. 57), would be entitled to make an application under this Act, may apply but such application shall not be proceeded with until the person has obtained a declaration of paternity under that Act, and the Court may give such directions and act as it thinks fit to facilitate the making and determination of all necessary applications on behalf of that person under that Act and this Act.


(12) Upon any order being made, the portion of the estate comprised therein or affected shall be held subject to the order.


(13) No mortgage, charge or assignment of or over such provisions, made before the order is made, shall be of any force, validity or effect and no such mortgage, charge or assignment made after the order is made shall be of any force, validity or effect unless made with the leave of the Court.”


  1. In terms of Section 3 of Inheritance (Family Provision) Act 2004, discretion is granted to the court to allow payments ,from estate of a deceased to former ‘spouse’, ‘child’ or ‘dependent’ if there is no provision made for them subject to the above quoted section.
  2. Plaintiff was de facto partner and had lived nearly a decade together with deceased. Her claim under this statute is on the basis of ‘dependent’ of deceased .There is no provision in his last will for her maintenance, but Inheritance (Family Provision) Act 2004 had interpreted the word ‘dependent’ exclusively in Section 2 which stated ;

“"dependant" in relation to a deceased person, means any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased person at the time of his death being-


(a) a parent of the deceased person;


(b) the parent of a surviving child under the age of 18 years of the deceased person; or


(c) a person under 18 years;..”(emphasis added)


  1. Plaintiff who was a de facto partner, cannot be considered as ‘dependent’ due to exclusive interpretation given to the word ‘dependent’ in Inheritance (Family Provision) Act 2004. When an exclusive interpretation is given in an Act of parliament, the room for interpretation is restricted. As such de facto partner is not included as ‘dependent’ to qualify to exercise discretion of the court to make an order for a lump sum from the estate of deceased.
  2. This is an entirely left to the legislation to make necessary amendment to include de facto partner of deceased as dependent. Court cannot assume legislative power to amend any legislation and include ‘de facto’ partner as ‘dependent’ when exclusive interpretation under the legislation had not included ‘de facto’ partner such as Plaintiff.
  3. Only spouse, child or dependent as exclusively interpreted in the said Act can make a claim under that Act. De facto partner is not included as ‘dependent’ as pleaded in the statement of claim, and this can only be done through an amendment to Inheritance (Family Provision) Act 2004 by inclusion of de facto partner to “spouse” or “dependent” . Accordingly, both claims of the Plaintiff are struck off.
  4. It is axiomatic to state that the appointment of Defendant as executor and grant of probate is valid in terms of last will of deceased made on 27.9.2016. Considering importance of legal provisions discussed and also circumstances of the case no cost granted.

CONCLUSION


  1. Plaintiff who was the de facto partner of late Manoj Kumar, is seeking declaration as to the ‘validity’ of the appointment of executor, and grant of life interest to Defendant, in the last will of late Manoj Kumar made on 27.7.2016. Defendant was the former wife of late Manoj Kumar and executor and trustee in terms of last will of 27.7.2016. Plaintiff’s alternate claim is based on Section 3 of Inheritance (Family Provisions) Act 2004 as a ‘dependent’ of the deceased for a lump sum. Plaintiff did not contest the last will in her evidence, but relied on Section 13 A of Wills Act 1972 to seek revocation of appointment of Defendant executor of the last will and also to revoke ‘beneficial gifts’ granted in terms of , the last will of the deceased. Any beneficial gifts from a last will made prior to divorce cannot be revoked if Section 13 A (3) (a) or (b) is applicable. The circumstances are such that there is proof ‘on balance of probabilities’ to satisfy the court that testator did not ‘at the time of termination of the marriage, intend to revoke the gift, power of appointment or appointment’. As all the properties were bequeathed to son of Defendant it is also illogical for deceased to appoint any person other than Defendant, including Plaintiff, as an executor. Defendant is also a co-owner to the main property belonging to the estate of late Manoj Kumar and had continued mortgage payments. Defendant had propounded the last will.
  2. Plaintiff’s alternate claim under Inheritance (Family Provision) Act 2004 also fails as only spouse, child or dependent as exclusively interpreted in the said Act can make an application under that Act. De facto partner is not included as ‘dependent’ as pleaded in the statement of claim, and this can only be done through an amendment to Inheritance (Family Provision) Act 2004 by inclusion of de facto partner to include “spouse” or “dependent”. Plaintiff’s statement of claim is struck off, but no costs awarded.

FINAL ORDERS


  1. Statement of Claim is struck off.
  2. No cost.

Dated at Suva this 24th day of May, 2023.


.....................................

Justice Deepthi Amaratunga

Judge High Court, Suva

[1] Came in to operation on 1.9.2004(https://www.laws.gov.fj/Acts/DisplayAct/932)(24.5.2023)

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