IN THE HIGH COURT OF JUSTICE NADIRA ALI JHAGROO NAEEM ALI SHALENA ALI KIMBERLY MAHARAJ SAEEDA ALI AND JUDGMENT

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN NADIRA ALI JHAGROO NAEEM ALI SHALENA ALI KIMBERLY MAHARAJ SAEEDA ALI AND PLAINTIFFS LILA SEETARAM DEFENDANT Before The Hon. Madam Justice Pemberton Appearances: For the Plaintiffs: Mr R. Bissessr and Ms P. Ramharack For the Defendant: Mr A. Ashraph instructed by Mr I. Khan JUDGMENT [1] The question for determination in this matter is: Who is entitled to APPLY for Letters of Administration to a deceased s estate when the deceased died intestate leaving a minor child but no spouse? Page 1 of 10

2 [2] BACKGROUND AND INTRODUCTION There is no factual dispute among the parties. The relevant facts appear in this decision. Neeshad Ali departed this life on 15 th August 2010 leaving behind his sole child, a daughter Aalia Liyana. I shall call her Aalia Liyana. Aalia Liyana was born on 4 th May 2009, so that she had barely celebrated her first birthday when Neeshad died. It is noteworthy that Neeshad and Aalia Liyana s mother Lila the Defendant (Lila) in the case at bar, were in a co-habitational relationship since 19 th March 2007 until his death. There was no Application forthcoming from Lila with respect to a legal pronouncement on this relationship which avenue is provided for pursuant to the COHABITATIONAL RELATIONSHIPS ACT 1. [3] On 2 nd November 2011, Lila, by Application Number L-2695 of 2011 applied to the court to obtain a Grant of Letters of Administration for Neeshad s estate. At paragraph 2 thereof, she described the Deceased as an Accountant and a Common-Law Husband at the time of his death. At paragraph 4 of the Application, Lila states that she made the application on behalf of the said minor as the natural mother of the said Aalia Liyana Ali. This Application was caveated by the Claimants, Nadira, Naeem, Shalena, Kimberly and Saeeda, the siblings of the deceased Neeshad. Nadira and the Siblings then filed a Fixed Date Claim Form on 2 nd July 2012 in which they claimed the following relief: (1) A declaration that the Defendant is not a proper person to administer the estate of Neeshad Ali; (2) An Order that the Defendant s application intituled L-2695 of 2011 filed on 2 nd November 2011 for a grant of Letters of Administration of the Estate of Neeshad Ali be and is hereby struck out and that the Registrar General do take the necessary steps to void the application. (3) An Order that the 2 nd and 4 th Claimants are entitled to apply for a grant of Letters of Administration of the Estate of Neeshad Ali in priority to anyone else; 1 Chapter 45:55 of the LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO Page 2 of 10

3 (4) Costs. At the First Case Management Conference, I posed the preliminary issue which appears above. [4] I shall not rehearse the eloquent submissions made by Counsel for the sole reason of producing a timely opinion and decision in this matter. I am grateful however for their assistance. I must say that I had recourse to all of the documents filed by the parties in coming to my decision. [5] LAW & ANALYSIS The relevant pieces of Legislation to be interpreted and applied in this matter are as follows: (a) THE FAMILY LAW (GUARDIANSHIP OF MINORS, DOMICILE AND MAINTENANCE) ACT 2 ; (b) ADMINISTRATION OF ESTATES ACT (AEA) 3 ; (c) WILLS AND PROBATE ACT (WPA) 4. These Acts together govern Probate and Succession in Trinidad and Tobago. For the purposes of this discussion, I feel that there is a need to refer to the provisions of the previous Statutes, the Ordinances 5 to see how Aalia Liyana s and by extension Lila s position herein may have been affected. [6] THE FAMILY LAW (GUARDIANSHIP OF MINORS, DOMICILE AND MAINTENANCE) ACT Under Section 2(2) a man is presumed to be the father of a minor, a person under the age of eighteen 6, when: (b) he is registered as the father of the minor under the BIRTHS AND DEATHS REGISTRATION ACT 7. 2 Chapter 46:08. 3 Chapter 9:01 4 Chapter 9:02 5 THE ADMINISTRATION OF ESTATES ORDINANCE Ch. 8 No. 1; THE WILLS AND PROBATE ORDINANCE Ch. 8 No. 2 6 Section 2(1) 7 Chapter 44:01 Page 3 of 10

4 This is borne out by Appendix B and attached to the Statement of Case and marked by me as exhibit A. [7] Section 7 of the Act provides that on the death of a parent of a minor, the surviving parent shall be the guardian of the minor either alone or jointly. In this case, there is no application for a joint guardianship by any other person so that by virtue of the provisions of this Act, Lila is recognised as the guardian of the minor child Aalia Liyana. [8] THE FORMER LAW As I said above, I think that to complete this discussion I must look at the legislative framework governing these matters to put a context to the Nadira s and the Siblings claim. The ADMINISTRATION OF ESTATES ORDINANCE (AEO) and the WILLS AND PROBATE ORDINANCE (WPO) are read as one body of law. 8 The conjoint effect of Section 30 (a) WPO 9 and Section 3(1) and (2) of the AEO produced this order of priority in the person entitled to apply for a grant of Letters of Administration in a deceased s estate. It is as follows: (a) (b) (c) (d) (e) surviving husband or widow of the intestate; the child or children (as next-of-kin) of the intestate; the grand children; great grandchildren or other linear descendant (as next of kin) of the intestate; the father or mother (as next of kin) of the intestate; the brother or sister (as next of kin) of the intestate. It is important to note that kin is mentioned in the definition of next of kin. Thus next of kin emanates from those recognised as kin. Therefore, the mother and father of the deceased are kin and the sister and brother emanating from the mother and father are next of kin. [9] Thus under the former law, the minor Aalia Liyana in the pure sense would have been readily able to apply for her father s estate. 8 See NON-CONTENTIOUS PROBATE PRACTICE IN THE ENGLISH-SPEAKING CARIBBEAN 1 st Ed p by Karen Nunez-Tesheira. 9 Chapter 8 No. 2 Page 4 of 10

5 [10] NEW LAW - THE ACTS Aalia Liyana s entitlement to procure such an Application and that entitlement, which prompted these proceedings, arises since the language as contained in the Acts do not exactly mirror that of the Former Law as contained in the Ordinances. [11] ADMINISTRATION OF ESTATES ACT (AEA) The AEA at Section 1 provides: This Act may be cited as the AEA and shall be read as one with the WPA. This has not changed from the Former Law in the Ordinance. [12] KIN AND NEXT OF KIN Section 2 of the AEA provides: kin means in relation to a deceased person, the ISSUE of the deceased, his father or mother, his grand parents and great grandparents. Of importance to this matter is the definition of next of kin. Section 2 provides that: next of kin means in relation to a deceased person (a) Brothers and sisters of the deceased Section 3 was repealed. This was the section which explicitly made provision for reading kin and next of kin to produce the result as stated by Mrs Karen Nunez-Tesheira in her treatise highlighted above. [13] How if at all, does the repeal of this section affect the order of priority for Letters of Administration as is stated by Mrs Nunez-Teshiera and as is well recognised as a proper statement of the law? I submit that there is no change to the persons entitled to apply for a grant of letters of administration Page 5 of 10

6 or to the order of priority. Based on that conclusion, it is now important to assess who is entitled to apply for Letters of Administration under the Acts. [14] WILLS AND PROBATE ACT (WPA) The governing section is Section 30. This provides: Applications for administration may be made by the following persons, as of course, and in the following order of preference: (a) In cases of intestacy (i) The surviving husband or widow of the intestate; (ii) The next of kin; (iii) The Administrator General. Who are the NEXT OF KIN? We must now go back to Section 2 of this Act to see how next of kin is to be interpreted. This Section states that next of kin means the person or persons entitled under an intestacy according to the provisions of the AEA. We therefore must now go back to the AEA to determine entitlement to apply for Letters of Administration. [15] THE ADMINISTRATION OF ESTATES ACT provides at Section 23: An estate or interest to which a deceased person was entitled on his death in respect of which he dies intestate shall after all payment of debts, duties and expenses be distributed or held on trust amongst the same persons being kin or next of kin in accordance with sections 24, 25, 26 and 26A. [16] In this case, the applicable section is 24(2). This states since the deceased Neeshad died intestate leaving issue but no spouse within the meaning of the Act, his estate is to be distributed among his issue per stirpes. The condition of per stirpes is of no relevance here. Aalia Liyana is the sole inheritor of her father, Neeshad s estate. [17] Thus since Aalia Liyana is entitled under the intestacy, she would qualify as next of kin under section 2 and by definition Section 30 (a)(ii). She therefore is first in the line to apply for and receive the Grant of Letters of Administration to her father Neeshad s estate. The provisions of Page 6 of 10

7 Section 26A of the AEA, under which Nadira and her Siblings would have been entitled to apply for Letters of Administration for Neeshad s estate is inapplicable. [18] I therefore am reinforced in my view that the present legislation, the Acts, in no way affected the rights and entitlement of parties which vested under the Former Law. In fact, the net effect of the Acts is to eliminate the definitional trap under the Former Law found in the Ordinances and it simplifies the interpretation and application of the law in this area. [19] AALIA LIYANA AND LILA The reality is that Aalyia Liyana is a baby. She is at this time, going on four years old. Who therefore can take that step for her? We have established that by virtue of the FAMILY LAW (GUARDIANSHIP OF MINORS DOMICILE AND MAINTENANCE) ACT that Lila is Aalyia Liyana s Guardian. Section 12 of that Act provides for the powers of a guardian. This gives the guardian rights, powers and duties not only over the person of the minor but also over the minor s estate. Such person can receive and recover in his own name for the benefit of the minor property of whatever description and wherever situated which the minor is entitled to receive or recover. [20] Having said that, can Lila as Guardian apply for and obtain a grant of Letters of Administration in Neeshad s estate and in what capacity? By virtue of Section 25 WPA the court provided that if, by reason of any other special circumstances, it appears to the Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this provision would by law have been entitled to the grant of administration, the Court may in its discretion,... appoint as administrator such person as it thinks expedient, and any administration granted under this provision may be limited in any way the Court thinks fit. The case at bar may be regarded as any other special circumstances intended to be captured and used by Aalyia Liyana the minor in this case and Lila her Guardian. The terms of administration may be limited as the court thinks fit. [21] This analysis allowing for a child to be regarded as next of kin for the purposes of section 30(a) (ii) is bolstered by section 81 of the WPA which provides that when the only child of a deceased is applying for Letters of Administration, no security shall be required for the due administration of the estate unless the court shall otherwise order. Thus Aalyia Liyana may not be subjected to posting an administration bond. Page 7 of 10

8 [22] My view finds a procedurally friendly face in the NON-CONTENTIOUS PROBATE RULES AT RULES Rule 29 specifically states as follows: Grants of Administration may be made to guardians of minors and infants for their use and benefit [23] CONCLUSION Ms Lila Seetaram therefore is within her rights to apply for Letters of Administration in the estate of Neeshad, the deceased, however not in her capacity as Aalia Liyana s natural mother but in her capacity as Guardian appointed by Order of the Court as provided for in the NC Rule 30. Nadira and her Sibling s action is therefore dismissed. It may be tidier for Ms Seeteram to withdraw the present Application for Letters of Administration and seek an Order of the court declaring her as Guardian of Aalyia Liyana in order for her to apply for Letters of Administration in Neeshad s Estate. Then she may move forward without hinderance. [24] COSTS In matters such as these, the Estate would bear the costs. I do not think that Aalyia Liyana s inheritance should be so burdened. This is reflected in my Costs Order. [25] THE COUNTERCLAIM Since I have determined that Lila is Guardian for the sole issue of Neeshad, Aalia Liyana can apply for Letters of Administration for Neeshad s estate, and that Nadira and her Siblings claim did not succeed, I must turn attention to the Counterclaim. The Declarations prayed are as follows: 1. That the Claimants or any of them are not entitled to file or lodge a caveat in the estate of the deceased. 2. That the caveat filed by the Claimants on the 14 th June 2012 in the estate of the deceased is null, void and of no effect. 3. An order directing the Registrar of the Supreme Court (Probate Division) to remove the said caveat from the record Costs. Page 8 of 10

9 [26] I can dispose of this shortly. The main question is having come to the conclusion that Lila s application ought to be withdrawn and refilled in proper terms, that is, that she is applying as Guardian of Aalia Liyana, can the counterclaim in relation to the caveats as have been filed, stand on its own? Two issues arise, what would be the practical effect of the Declarations and was there a claim which required a defence as a direct consequence of my finding on this preliminary issue? [27] DECLARATORY RELIEF The authorities are clear that the court looks to the effect of declaratory relief when considering whether to accede to a party s request. One of the issues is whether if the declarations were to be granted, would they have any real effect or would they be of mere academic importance? If they are of mere academic importance, the relief would be declined. In this case, since I determined that Lila s application in its present form is flawed, I tend to the latter view and decline to pronounce favourably upon them as far as the counterclaim is concerned. In fact, I should dismiss the counterclaim since there was really no claim made by the Claimants which the Defendant had to counter. This would have been of more interest had I not determined that the issue of costs does not lie in this matter for the reasons set out above. In the premises, I would dismiss the counterclaim with no order as to costs. [28] WAS THERE A CLAIM WHICH REQUIRED A DEFENCE In this regard I associate myself with dicta from my sister Gobin J 10 and state that where the dismissal of a claim was as a direct consequence of a decision on a preliminary issue, there was no need for a defendant to continue with their defence. In this case, my position is strengthened since the basis of the Counterclaim, Lila s application for the Grant of Letters of Administration in its present form, will not succeed as she has not applied for it in her correct capacity. In the circumstances, I too shall dismiss the counterclaim with no order as to costs. 10 CV ; Civil Appeal No 67 of 2010 JUDY LAU and others v LOUISA VISSIA MEDRANO and another.; CV ; Civil Appeal No 69 of 2010 JUDY LAUV and others v BERTRAND WALTER and another; CV ; Civil Appeal No 69 of 2010 JUDY LAUV and others v HANOMATEE DEOPERSAD-FLETCHER and others. Page 9 of 10

10 ORDER ON THE CLAIM 1. The Fixed Date Claim Form filed on 2 nd July 2012 be and is hereby dismissed. 2. No Order as to Costs. AND ON THE COUNTERCLAIM 3. That the Counterclaim filed on 8 th October 2012 be and is hereby dismissed. 4. No Order as to Costs. Dated this 28 th day of June /s/ CHARMAINE PEMBERTON HIGH COURT JUDGE Page 10 of 10