Khan v Mohammed [1965] FJLawRp 38; [1965] 11 FLR 83 (12 April 1965)

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Executors and administrators – District Administrator – right to intervene in proceedings – possibility of intestacy – Administration of Estates of Ordinance (Cap. 41) ss.3,3 (1) (2) – Statute of Distributions 1670 (Imperial) – Intestates Estates Act 1890 – Rules of Supreme Court (1934) O.12 r.23.

In two actions it was sought to propound two wills of one Shahbaz Khan deceased and a will of Bachwan deceased, who was the widow of Shahbaz Khan and died shortly after him. All three wills were opposed, and among the claimants were four nephews of Shahbaz Khan who resided in Afghanistan.

Held: To support an, application by the District Administrator under the Administration of Estates Ordinance to intervene in the proceedings pursuant to Order 12 rule 23 of the Rules of the Supreme Court, the mere possibility of an interest is sufficient. In circumstances in which there was a possibility of all three wills failing the District Administrator had an interest by statute in the possible intestacies entitling him to intervene.

Application in Chambers by the District Administrator under the Administration of Estates Ordinance. Reported by direction.

Probate

intervention

Order 12 rule 23 (Annual Practice 1934)
In Probate actions any person not named in the writ may intervene and appear in the action as heretofore, on filing an affidavit showing how he is interested in the estate of the deceased.
Leave to intervene is applied for on summons before a registrar as heretofore. Cf. Contentious Probate, Rule 6, and 0.16 r.10 (n).

D. M. N. MacFarlane and R. D. Mishra for the District Administrator
F. M. K. Sherani for the plaintiffs.
D. N. Sahay for the second defendant.
First defendant in person.

These are applications to intervene in the respective proceedings on the part of the District officer in his capacity as District Administrator under the Administration of Estates Ordinance (Cap. 41). For convenience the applications were heard together as the same question arises in each case, namely whether the District Administrator is a person having an interest entitling him to intervene pursuant to Order XII rule 23 (Rules of the Supreme Court (1934)) in its application to the Colony.

Under section 3 of the Ordinance, Chapter 41, the District Administrator is placed under a duty to take possession of, and to administer, the estate of any person dying intestate and leaving no widow, widower or adult next of kin residing in the Colony.

In the Action No. 3 of 1964 a will of Shahbaz Khan dated the 27th September, 1963 is propounded. The action was commenced by his alleged widow Bachwan, now deceased. Shahbaz Khan died on the 29th May, 1964. The defendant Faiz Mohammed opposes that will and propounds an earlier will dated the 18th November, 1960. The earlier will was opposed by Bachwan. Bachwan died in October, 1964, and the present plaintiffs in Action No. 3 were substituted for Bachwan as the nephews and four of the lawful next of kin of Shahbaz Khan deceased. They seek a grant of letters of administration with the (later) will annexed; they do not claim as on an intestacy. They reside in Afghanistan. It is claimed in the affidavit of the District Administrator that Shahbaz Khan was lawfully married to one Aliman, by whom he had no issue, but it is not clear whether she is alive. So far as is known Shahbaz Khan left no lawful next of kin residing in the Colony. Under the earlier will the defendant Faiz Mohammed is the sole beneficiary of the residuary estate. Under the later will Bachwan was given a life interest in the estate and directed to leave the estate in remainder to such of the testator's relations as she should be advised by the testator's Solicitors. It is claimed that Bachwan died without carrying out or exercising this direction or power of appointment, and that in any event it is of doubtful validity.

In the Action No. 4 of 1964 a will of Bachwan (deceased) dated the 17th September, 1964, is propounded by the executor, the present 2nd defendant in Action No. 3, who with his wife are the sole beneficiaries under the will. It is opposed by the defendant Faiz Mohammed, but it is difficult to perceive the interest of Faiz Mohammed in Action No. 4. If he succeeds in propounding the earlier will of Shahbaz Khan in Action No. 3, in preference to the later will, that is an end of the matter so far as a grant is concerned. If he fails in Action No. 3 he has no interest in opposing the will of Bachwan deceased. He does not claim to be related to either of the deceased.

If the position ever arises that different persons claim the same property, the one in right of the estate of Shahbaz Khan and the other in right of the estate of Bachwan, that will not be a matter to be decided in these proceedings. It appears doubtful whether Bachwan left separate estate. No one has come forward to claim as on an intestacy in respect of her estate.

I have been referred by Mr. McFarlane, on behalf of the District Administrator, to the cases of Kipping and Barlow v. Ash and Others ,(1845) [1845] EngR 1034; 163 E.R. 1035 and Crispin v. Doglioni (1860) 164 E.R. 897, as establishing the proposition that the bare possibility of an interest is sufficient to allow a person to come in to contradict the will. But both were cases in which the interest asserted was a beneficial interest in the estate. If the District Administrator had already taken possession and entered on the Administration of the estate of Shahbaz Khan, possibly that would be a sufficient interest, as it is said that an administrator stands in a favoured position (see Dabbs v. Chisman and Jennens v. Lord Beauchamp (1810) 161 E.R. 946). A creditor-administrator has been held to have an interest entitling him to intervene (ibid). In the Goods of Ann Chanter [1844] EngR 950; (1844) 163 E.R. 1036, on the other hand, was a case where the administrator had merely a limited grant entitling him to carry on certain Chancery proceedings; he was held to have no ‘interest’ in the estate but to be a mere nominee for the purpose of the Chancery suit. The District Administrator's position might be considered to be analogous. It is, however, to be considered whether the District Administrator has an interest in the sense of a duty to protect the interests of absent persons possibly beneficially entitled on intestacy; in other words that the word "intestate" in section 3 (1) of Chapter 41 includes a case where a will fails. The terms "intestate" and "intestacy" in their ordinary sense are associated with the question whether the deceased's estate is disposed of by will; in a technical sense, adopted in a Court of Probate, they may be used with reference to the question whether an executor is in existence (39 Halsbury p.843 note (g) ) . In that sense there is a present intestacy with respect to the estate of Shahbaz Khan. It is evident also that these expressions may vary according to the context. In the case of In re Ford, Ford v. Ford [190212 Ch. 605 a will became wholly, inoperative in consequence of the death
of the sole executrix and legatee in the life-time of the testator. It was held that the testator died "intestate" for the purposes of section 5 of the Statute of Distributions. Similarly, in the case of In re Cuffe, Fooks v. Cuffe [1908] UKLawRpCh 94; [1908] 2 Ch. 500, where there was a lapse of all beneficial interests under the will and the executor had pre-deceased the testator, it was held that the testator had died "intestate" for the purposes of enabling the widow to claim under the Intestates Estates Act, 1890. In both these cases an apparent testacy became, in the eye of the law, an intestacy. The difficulty in approaching the present applications in the same way is that subsection (2) of section 3 enumerates the cases in which the District Administrator is to act when a will has been made.

The matter may however be approached in another way. The two wills of Shahbaz Khan and the will of Bachwan are the subject of contest and may all fail - I do not, of course, imply that any one of them will fail. If they do all fail the District Administrator will be obliged to enter upon his functions under the Ordinance, Chapter .41; he will have no choice in the matter. If the later will of Shahbaz Khan is proved, the question will arise whether the direction or power of appointment was validly created; if it was invalid, the estate is presently undisposed of by that will. Further, there is doubt whether the direction or power of appointment was carried out or exercised, which again might lead to a present intestacy in respect of Shahbaz Khan's estate. Bachwan's will, also, is opposed and may possibly fail. In the circumstances the District Administrator is already a potential administrator of both estates. In effect he is a statutory representative of absent persons interested on intestacy. I do not think that cases such as Kipping and Barlow v. Ash (supra) contemplate a situation in which the proposed intervener is a statutory officer with functions such as are imposed upon the District Administrator, but they do point to the fact that the mere possibility of an interest is enough. If the wills in question are to fail it is obviously to the advantage of the absent next of kin that the District Administrator should be made aware of the position, immediately and with certainty, so that he may enter upon his duties forthwith. The object of the Ordinance is to ensure that no prejudice occurs to the interests of absent next of kin. If the District Administrator is made a party to the proceedings all this will be secured. It will be no bar to the grant of letters of administration to next of kin, if the Court thinks fit (see section 3 (3) of Chapter 41). I hold that the District Administrator has an interest by statute in the possible intestacies and that such interest entitles him to intervene in these proceedings.

Order : That the District Administrator be joined as a defendant in both actions and that he enter an appearance within 8 days hereof.

Fiji Law Reports

Khan v Mohammed [1965] FJLawRp 38; [1965] 11 FLR 83 (12 April 1965)