IN THE HIGH COURT OF FIJI AT SUVA
PROBATE JURISDICTION

Caveat No. 07 of 2001

IN THE ESTATE of SYLVIA MARY STEPHENS a.k.a SILIPA TAGICI late of 19 Howell Road, Suva, in the Republic of Fiji, Businesswoman, Testate.

BETWEEN:

HENRY STEPHENS of Korolevu, Coral Coast, Service Station Operator.
CAVEATOR

AND:

SANDRA MAY LOUISE KWAI of Pacific Harbour, Fiji and of 6 Chamberlain Street, Narwee, NSW 2209, Australia, Domestic Duties.
CAVEATEE

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Odriscol G. for the Caveatee
Mr. Qoro J. for Caveator

Date of Hearing: 9th September, 2011
Date of Ruling: 9th November, 2011

RULING

A.	INTRODUCTION
1.	This is an application for removal of caveat in terms of Rule 44 (12) of the Non-contentious Probate Rules of 1987. The applicant has not filed an affidavit of service as required in terms of the Rule 44(12) of Non Contentious Probate Rules and the application is struck off.

B.	FACTS
2.	Sandra May Louise Kwai has made an affidavit in support to remove the caveat against the grant of probate and state inter alia

a.	She is applying for probate of her deceased mother's estate and was informed by the Probate Registry that there was a caveat against grant of probate filed by her half brother, the caveator.

b.	She has instructed the lawyers to file a warning to caveator, which was stamped and issued on 25th May, 2011 and it was served to the caveator (i.e. his lawyers) on 2nd June 2011.

c.	The caveator's solicitors has file 'an appearance' on 14th June 2011 and no step was taken by the caveator or his lawyers.

3.	The affidavit in opposition of Henry Stephens inter alia states as follows:

a)	He is one of the beneficiaries of his late mother, Sylvia Mary Stephens of her Will dated 26th July 2004.

b)	Mrs. Sandra May Louise Kwai is his half sister, and resides in Australia.

c)	He lives in Fiji and had contributed for two properties that were bequeathed to the said half sister by mother in her will.

4.	The caveator admits that he did not take any step in terms of the Non Contentious Probate Rules to file summons for direction as required in terms of the Rule 44(6) and state that he had complied with the Rule 44 (12) and had filed an appearance to warning.

C.	THE LAW & ANALYSIS
5.	This application for removal of the caveat was brought in terms of Non Contentious Probate Rules and Rule 44 deals with caveats.

6.	Rule 44(10) of Non Contentious Probate Rules states as follows

"(10) A caveator having an interest contrary to that of the person warning may within eight days of service of the warning upon his (inclusive of the day of such service) or at any time thereafter if no affidavit has been filed under paragraph(12) below, enter an appearance in the registry in which the caveat index is maintained by filing Form 5 and making an entity in the appropriate book, and he shall serve forthwith on the person warning a copy of Form 5 sealed with the seal of the court."

7.	In Re The Estate of Kumar[1998] FJHC 34; HPC0021.1997& HPP0023.1997(18 March 1998) Justice Byrne held 
8.	
'As no other form of appearance is given in Tristram and Coote I am prepared to accept the fail out to comply with the form as set out in the book vitiates any appearance not entered in accordance with that form. This makes common sense as the person filing a Warning to Caveat must be entitles to know the interest in the estate claimed by the Caveator. I therefore accept the submission of the Application in Action in HPC 21 of 1997.'

9.	So, it is clear that strict compliance of the Form 5 in the Non Contentious Probate Rules is a requirement. 

10.	Form 5 as contain in Non Contentious Probate Rules of 1987 is reproduced in full here 

FORM 5

APPEARANCE TO WARNING OR CITATION

In the High Court of Justice
Family Division
The Principal [or ……………………………………………………District Probate] Registry Caveat No. ……………………dated the ………………day of ……………….19……………… [Citation dated the ……………………………………….day of..……..………19…………..…]
Full name and address of deceased: …………………………………….

Full name and address of person warning [or citor]: ……………………………………
(Here set out the interest of the person warning, or citor, as shown in warning or citation.)
Full name and address of caveator [or person cited].
(Here set out the interest of the caveator or person cited, stating the date of the will (if any) under which such interest arises.)
Enter an appearance fort the above-named caveator [or person cited] in this matter.
Dated the ………………………………………………..….day of ……………..……19……………

(Signed)

Whose address for service is: 

 Solicitor (or 'In person')

11.	The caveator has not set out his interest in the 'appearance to warning' filed on 14th June 2011 as required by the Non Contentious Probate Rules as interpreted in the abovementioned decision of Justice Byrne

12.	So clearly there is no appearance in terms of the Non Contentious Probate Rules 

13.	The Rule 44(12) of Non Contentious Probate Rules states as follows.

'(12) If no appearance has been entered by the caveator or no summons has been issued by his under paragraph(6) of this rule, the person warning may at any time after eight days of service of the warning upon the caveator (inclusive of the day of such service) file and affidavit in the registry in which the caveat index is maintained as to such service and the caveat shall thereupon cease to have effect provided that there is no pending summons under paragraph(6) of this rule.

14.	There is no affidavit of service of the warning, filed in this proceedings.

15.	There is no form of affidavit that is required to be filed in terms of Rule 44(12) of the Non Contentious Probate Rules and in the affidavit in support of Sandra May in support of this application at paragraph 5 state as follows

'5. I then instructed my solicitors to file a warning to caveator, which they did and which is stamped by the court on 25th May 2011. This was served to the Caveatee's solicitors on 2nd June 2011.'

16.	In the affidavit in opposition, the above paragraph was not denied, but he had failed to reply to any of the averments in the affidavit in support. 

17.	The above paragraph in the affidavit in support of this application cannot be interpreted as the fulfillment of the requirements in terms of Rule 44(12) of Non Contentious Probate Rules and this application for removal of the caveat cannot be granted in the absence of such a vital requirement.

D.	CONCLUSION
18.	The caveatee has not fulfilled the requirement of filing an affidavit of service as per Rule 44(12) of the Non Contentious Probate Rules and this application should be struck off. Considering the circumstances of this case I will not order a cost.

E.	FINAL ORDER
19.	The application for removal of caveat is struck off.

20.	No cost.

Dated at Suva this 9th day of November, 2011. 

Mr. Deepthi Amaratunga
Master of the High Court
Suva