REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2012-02642
BETWEEN
NADIRA ALI JHAGROO
NAEEM ALI
SHALENA ALI
KIMBERLY MAHARAJ
SAEEDA ALI
PLAINTIFFS
AND
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]
BACKGROUND AND INTRODUCTION
There is no factual dispute among the parties. The relevant facts appear in this decision. Neeshad
Ali departed this life on 15th August 2010 leaving behind his sole child, a daughter Aalia Liyana. I
shall call her Aalia Liyana. Aalia Liyana was born on 4th 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 19th
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 ACT1.
[3]
On 2nd 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 2nd 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 2nd 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 2nd and 4th 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
(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) ACT2 ;
(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
Ordinances5 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
eighteen6, when:
(b) he is registered as the father of the minor under the BIRTHS AND DEATHS
REGISTRATION ACT7.
2
3
Chapter 46:08.
Chapter 9:01
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
4
Page 3 of 10
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) WPO9 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)
surviving husband or widow of the intestate;
(b)
the child or children (as next-of-kin) of the intestate;
(c)
the grand children; great grandchildren or other linear descendant (as next of kin) of the
intestate;
(d)
the father or mother (as next of kin) of the intestate;
(e)
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
st
See NON-CONTENTIOUS PROBATE PRACTICE IN THE ENGLISH-SPEAKING CARIBBEAN 1 Ed. 1998 p. 135-136 by
Karen Nunez-Tesheira.
9
Chapter 8 No. 2
Page 4 of 10
[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
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
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
[22]
My view finds a procedurally friendly face in the NON-CONTENTIOUS PROBATE RULES AT
RULES 29-31 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.
4. ...
5. Costs.
Page 8 of 10
[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 J10 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 2006-04149; Civil Appeal No 67 of 2010 JUDY LAU and others v LOUISA VISSIA MEDRANO and another.; CV
2006 – 04150; Civil Appeal No 69 of 2010 JUDY LAUV and others v BERTRAND WALTER and another; CV 2006 –
04154; Civil Appeal No 69 of 2010 JUDY LAUV and others v HANOMATEE DEOPERSAD-FLETCHER and others.
Page 9 of 10
ORDER ON THE CLAIM
1.
The Fixed Date Claim Form filed on 2nd July 2012 be and is hereby dismissed.
2.
No Order as to Costs.
AND ON THE COUNTERCLAIM
3.
That the Counterclaim filed on 8th October 2012 be and is hereby dismissed.
4.
No Order as to Costs.
Dated this 28th day of June 2013.
/s/ CHARMAINE PEMBERTON
HIGH COURT JUDGE
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