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Leger v Niu [1989] TongaLawRp 2; [1989] Tonga LR 11 (3 November 1989)

[1989] Tonga LR 11

KINGDOM OF TONGA
LAND COURT

LEGER v NIU

Land Court
Case No. 2/1989
3 November 1989

Will - principles of interpretation - grant of probate

Land - disposal of land by will

Probate and administration - letters of administration incorrectly granted.

The deceased died in 1984 leaving a will which appointed two sons, one of whom died, as executors and contained a provision relating to the disposition of his property. The plaintiff who was the widow of the testator, brought proceedings claiming that the provisions in the will entitled her to the properties absolutely, but this was disputed by the executor to whom letters of administration had been granted.

HELD:

Dismissing the proceedings

(i) The words of a will are to be interpreted according to their ordinary meaning in the context of the will as a whole.

(ii) The words of the provision as so interpreted did not give an absolute interest in the properties to the widow, but only until her death or remarriage.

(iii) The letters of administration of the estate which had been granted by the Supreme Court were in error and probate should have been granted, but this could be done only by the Supreme Court not the Land Court.

Cases Considered:

Pangia v Kalaniuvalu (1937) II Tongan LR 32

Webster J

JUDGMENT

This action arises out of the Will of Frank Paul Leger of Fongoloa-moe-Vai, Fasimoe-afi, Nuku'alofa dated 7th November 1968. Mr Leger died on 10th August 1984 leaving a widow 'Ilaise Leger, who is the Plaintiff.

The executors named in the will were his sons Sheppard Leger (now deceased) and Baisley Leger Junior who is sued as Defendant through his lawyer Laki Maile Niu.

The heart of the matter is what is said in the Will, the important pieces being (in English translation of the Tongan)

"I leave it to Sheppard Leger and Baisley Leger Junior ........... to control to do as the instructions which are in this my will.

I dispose of my properties as follows:-

(1) I leave all of my properties to my real lawful wife, during her life time, 'llaisa Leger . . . and if I shall die some day and she shall have them as follows 2 European wooden house, 1 concrete house situated facing Fongoloa Road . . . . European kitchen and its furnitures, one garage, 1 workshop (or workshouse), and any other house situated on my leased api (api lisi) No. 2076 at Kolofo'ou including this leased api No. 2076 in this my will . . . .