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Dausabea v Dausabea [2022] SBHC 106; HCSI-CC 213 of 2021 (16 December 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 213 of 2021

BETWEEN

JOY ROSELYN DAUSABEA
Mother/Spouse, Administrator

AND:

RONALD DAUSABEA, THOMAS DAUSABEA, ROLLAND DAUSABEA
Children Objectors/Applicant

Date of Hearing: 6 December 2022
Date of Decision: 16 December 2022

Mr. Afeau for Court Appointed Administrator
Mr Iroga for Applicants to Revoke Appointed Administrator
Mr. Taupongi for AND Bank-Interested Party-Initial Objector

Keniapisia; PJ

RULING ON APPLICATION TO REVOKE COURT APPOINTED ADMINISTRATOR

Introduction

1. By originating summon filed 30/04/2021, Mrs Joy Roselyn Dausabea (Joy) applied for grant of Letters of Administration (“LOA”) to administer the estate of her deceased husband (Mr Benjamin Ramosala Dausabea). Deceased husband died intestate on 17^th July 2017. Initially, Joy had the support of her children to apply for LOA grant. The only objector initially was ANZ Bank. ANZ Bank has charges over properties of the deceased at Kombivatu, Honiara.
2. Subsequently, the children changed their minds and revoked their initial support to their mother. By application filed 22/03/2022, the children applied to revoke the grant of LOA to their mother. The grant of LOA to their mother was made on 15/11/2021, perfected 23/11/2021 through a consent judgment entered into between the mother’s lawyer (Mr Afeau) and lawyer for initial objector, ANZ Bank (Mr Taupongi).

Issue

3. The substantive issue is “Whether or not special circumstances warrant revoking the grant of LOA to the mother and to instead grant the same to the children objector applicants?

Administrator Mother incapable and of bad character

4. The children have changed their minds arguing that their mother is not a fit and proper person to be granted LOA to administer the estate of their deceased father because: -
   • (i) She failed to apply quickly. They say their father died in 2017. Their mother only applied in 2021. So, their mother failed her duty to take quick action to save the estate from bank take over, saying the longer the delay, the higher the loan arrears interests will accumulate. I will ignore this argument for two reasons. First, the children have been with their mother since 2017. And they initially supported their mother to apply only in 2021. So, they are also part of the delay. Secondly, the issue of loan arrears already existed in 2015 in Civil Case 543 of 2015 – ANZ was after loan arrears from the deceased even when he was still alive. So, neither the mother nor the children should be blamed for accumulating loan arrears and interests.
   • (ii) She is in a love affair with another man and they both live in one of the houses of their deceased father, at Kombivatu, without their consent. This is against Malaitan culture and custom. I will not say anything on this and whatever I say can be ignored. Is it right or wrong in custom for a widow to remarry? Should a re-marrying widow be excluded from benefitting from the properties of her deceased husband? Should a widow consult her children before remarrying? Is it true to say that the children and their mother are currently going through stormy weather in their relationship? But all stormy weather can cease and fine days can come again. Relationships can be broken, yet can be mended. There is evidence that, the broken relationship between the brothers and their sister is already restored. I am optimistic that the broken relationship between the boys and their mother will be mended, when the right time comes. And the children’s hearts will be joined to their mother’s heart again.
   • (iii) She tried to sell Auki property but did not succeed. This evidence is half of the truth, because the sworn statement on this was only filed a day before hearing and not properly served to allow for a response from the mother. So, I will not place heavy reliance on this evidence.
5. Owing to the foregoing reasons, Counsel Iroga submitted that the mother is incapable and a bad character unfit to administer the estate of the deceased husband/father. So, the Court should set aside the mother’s grant of LOA. And instead grant it to the children objectors/applicants.

The Law

6. The starting point is to go back to the law. The law is quite clear. Section 29 (1) of the Wills, Probate and Administration Act (Cap 33) – “the WPA Act”, provides that where the deceased died wholly intestate, the persons having benefit and interests, in the estate, shall be entitled to a grant of LOA, in the order of priority, that may be prescribed by Rules made under Regulation. The said Rules are the Grants of Probate and Administration (Order of Priority) Regulation 1996. Regulation 3.1(a) puts the surviving spouse (mother in this case) at the top of the list of priority to anyone else.

Is there a special circumstance to pass over the priority rule?

7. Is there a special circumstance, to justify deviation from the order of priority in the Rules? In the case authority^[1] Counsel Iroga cited, a special circumstance was established to pass over the surviving spouse, because the surviving spouse sold property of the estate (Hilux) and was about to sell a house (dishonest attitudes). These properties belong to the deceased and should benefit the deceased’s surviving spouse and children. Instead the surviving spouse was disposing them off. In that circumstance, the surviving spouse was passed and a different person appointed administrator. Court was of the view that the surviving spouse had a bad character (dishonesty) and was incapable to administer the estate of the deceased, because he breached his duty to look after the properties of the deceased for the benefit of the children and surviving spouse. On the evidence before me, there is no such special circumstance of bad character and incapability (breach of duty) to warrant revoking the current appointment and to pass the surviving spouse (mother). Like I say in paragraph 4 (i) – (iii), the allegations here do not constitute bad character and incapability (special circumstance). Therefore, a case is not made out to revoke the current administrator (mother). The LOA granted to the mother is sustained.

Law on responsibility of the Administrator

8. I should mention something about the law for the mother (administrator) to take heed of. She must administer the estate of the deceased according to law, for the benefit or inheritance of the dependants of the deceased. Dependants are the children and their mother (administrator). Administering the properties according to law means, the administrator must first discharge the loan obligations, tax and other obligations over the Kombivatu/Auki properties, or other properties of the deceased, before administering or distributing the left-over properties for the benefit of the dependants.

Court’s ongoing role in the administration of the deceased estate

9. This Court maintains an ongoing role in the administration of estates of deceased persons. For the administration powers vested in the administrator is given by authority of this Court. And if any beneficiary is unhappy about the administration and distribution of benefits from the estate left behind by the deceased, they are entitled to come back to this Court, to ensure the administration is done according to law, to the benefit of the deceased’s dependants. Section 16 and 69 of the WPA Act provides for the Court’s ongoing role in the administration of estates, by the administrator. Section 16 allows for application to revoke the appointment of an administrator or for applications to be made for second or subsequent grant of administrator. Section 69 placed duty on the administrator to look after the properties of the deceased, account to the Court for deceased estate inventory and or the Court may even call for surrender of the administrator grant.

Conclusion and Orders

10. Accordingly; Court will sustain the LOA grant currently vested in Mrs Joy. Mrs Joy shall administer the estate of the deceased according to law, to benefit all the dependants of the deceased. Dependants of the deceased are the children and Mrs Joy. Estate of the deceased are all the properties that the administrator will have control over. Parties will meet the bulk of their own costs. Only $10,000.00 of the deceased’s estate may be used to meet cost relating to the original application and the application to revoke, in favour of the administrator. After the loans are cleared the administrator is accountable to the dependants in terms of benefit and or distribution (inheritance) of the deceased’s properties. The administrator is accountable to the children, in dealing with the properties. But first the bank charges take priority attention for the administrator. Administrator will make a report to the Court on the deceased estate inventory after 6 months. Associate to check with Counsel after 6 months.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

^[1] In re Estate of Jocelyn M Kabui [2014] SBHC 34; HCSI-CC 36 of 2012 (9^th May 2014)