IN THE HIGH COURT OF FIJI
AT LABASA
PROBATE JURISDICTION

CASE NUMBER: HBP 08 of 2008

BETWEEN:

MARIA MATAI, ANA MARIA MATAI and SOLOMONE MATAI.
PLAINTIFFS

AND:

BERENADO ULUILAKEBA
DEFENDANT

Appearances: Mr. Amrit Sen for the Plaintiff. 
 Defendant in Person 
Date/Place of Judgment: Tuesday, 22nd November, 2011 at Suva.
Judgment of: The Hon. Madam Justice Anjala Wati.

JUDGMENT

ADMINISTRATION OF ESTATE – DUTIES OF TRUSTEE: BY VIRTUE OF WILL, STATUTE AND COMMON LAW- locus of beneficiary(s) to make application for removal of trustees – Court's powers to appoint and remove trustees.

LEGISLATION
The High Court Rules 1988.
The Succession, Probate and Administration Act, Cap. 60, Laws of Fiji.
The Trustee Act, Cap. 65, Laws of Fiji.

CASES/TEXTS CITED
Hasbury's Laws of England, 4th Edition, Volume 17.

_____________________________________________________________________________

Case Background and Cause.

1.	The plaintiffs are the beneficiaries in the estate of the deceased Rogasiano Matai aka Matai Roga. The first named plaintiff is the wife, the second and the third named plaintiffs are the children of the deceased.

2.	The defendant is the trustee in the estate of the deceased.

3.	The plaintiffs are not satisfied with the management of the estate by the defendant which is the basic reason for this action against the latter.

4.	The plaintiffs seek from this Court an order that a declaration be made that the defendant has breached the provisions of the will of the deceased, as a result of which he should be removed as the trustee, and that the daughter of the deceased, Ana Maria Matai, the second named plaintiff, be appointed as a new trustee. 

5.	The additional basis of the claim is that the plaintiff had breached the duties imposed on him by law, the Trustee Act, Cap. 65, Laws of Fiji, and the common law.

6.	The particulars of the breach, as I find from the various paragraphs of the claim and the reply to the defence, are stated to be:-

•	Failure to transfer the property "Gold to Me" situated at Savusavu to the named beneficiaries, Vivania Matai, Maria Matai and Solomone Matai pursuant to clause 5 of the will;

•	Attempting to sell the property "Gold to Me" to a person outside the family contrary to clause 5(i) of the will;

•	Failure to distribute and make various payments to various persons and entities pursuant to clause 7(v), (vii), (ix) and (x) of the will;

•	Failure to pay the beneficiaries a sum of $4,000 for the funeral expenses pursuant to clause 8 of the will; 

•	Failure to discuss with the beneficiaries the costs of the solicitors; paying the solicitors exorbitant amount of monies without consulting the beneficiaries and failing to distribute the balance proceeds to the beneficiaries in equal shares pursuant to clauses 9 and 10 of the will;

•	Failure to get a true value of the loss caused by fire to the property "Gold to Me" and obtaining a proper value of the loss from the insurer's, failure to discuss with the beneficiaries regarding the insurance claim and payment out of the insurance proceeds, and failure to reconstruct the property to generate income for the benefit of the beneficiaries contrary to s. 43(4) and (5) of the Trustee Act. Cap. 65.

•	Failing to provide accounts of the estate to the beneficiaries when requested to do so, to look after the beneficial interest of the beneficiaries by not entering into discussion and dialogue with them before dealing with the estate and its funds; and failure to avoid loss and damages to the estate as stipulated by common law.

7.	In his statement of defence, the defendant contended that he paid all the monies pursuant to paragraph 7 of the will. He also stated that the insurance company was not willing to pay full amount of the sum for which the building "Gold to Me" was insured but only two thirds of it. The two thirds of the monies were accepted by him on the instructions and consent of the beneficiaries for which the beneficiaries ought to indemnify him. This was a better deal for the beneficiaries as the bank wanted to make payments directly to the plaintiffs for a smaller sum contrary to the policy and intention of the deceased.

8.	The defendant also contended that he has not breached his duty as an executor and trustee or that his actions have caused any loss to the estate. He had been bestowed upon with this duty by his friend, the deceased, and if he relinquishes his duty, the estate will suffer more damage.

Evidence, Issues, Law and Analysis

9.	The issue that this court needs to try is simply. It is:

(a)	Whether the trustee has breached his duties imposed on him by the will and/or the statute and/or the common law; 

(b)	If so, what orders should be made to remedy the breach.

10.	Before I turn to determination of each issue, I wish to focus on the locus of the beneficiaries to bring this action to remove the existing trustee. S. 89(1) of the Trustee Act empowers the beneficiaries to make an application to the Court for appointment of a new trustee. It reads:-

"89 (1). An order under the provisions of this Act for the appointment of a new trustee, or concerning any property subject to a trust, may be made on the application of any person beneficially interested in the property, whether under a disability or not, or on the application of any person duly appointed trustee of the property or intended to be so appointed".

11.	I now turn to the first issue, for the determination of which I will have to outline each alleged breach and ascertain whether there is in fact any, against the will; the statute or the common law. 

12.	The first allegation is that the trustee has breached paragraph 5 and 5 (i) of the will in that the trustee has failed to transfer the property "Gold to Me" situated at Savusavu to the named beneficiaries namely Vivania Matai, Maria Matai and Solomone Matai; and that the trustee had attempted to sell the property "Gold to Me" to a person outside the family.

13.	The material part of clause 5 of the will reads as follows:-

"5. I give to my daughter Vivania Matai and my wife Maria Matai and my son Solomone Matai my property of building known as "Gold to Me" situated at Savusavu Town to own and to share equally on the following conditions:

(i) that the property shall remain with family and not to be sold to anyone outside of the family".

14.	There is uncontradicted evidence that the property "Gold to Me" has not been transferred to the three named beneficiaries when the deceased wanted them to own and share equally the same. Although the trustee has not sold the same to an outsider as prohibited by clause 5 (i) of the will, there is further uncontradicted evidence that the trustee went against the will of the testator by attempting to sell the burnt property. These actions of the trustee is in direct breach of clause 5 and 5 (i) of the will. I find that the trustee has breached clause 5 and 5 (i) of the will.

15.	The next breach is alleged to be breach of clause 7(v), (vii), (ix) and (x) of the will in that the trustee failed to distribute and make various payments to various persons and entities.

16.	Clause 7 (v), (vii), (ix) and (x) of the will reads as follows:-

"7. I give my monies held in term deposit with the Colonial National Bank to be divided in the following ways:-

(i) …

(ii) …

(iii) …

(iv) …

(v) to my grand daughter Florine Matai the sum of seven thousand dollars ($7,000).

(vi) …

(vii) …

(viii) …

(ix) to my wife's family of Nabalebale the sum of two thousand dollars ($2,000.00).

(x) to my brother Mikaele Naulu the sum of two thousand dollars ($2,000.00).

(xi) …

(xii) …"

17.	The evidence of all the plaintiffs indicates that the defendant did make all payments pursuant to clause 7 of the will. I do not find that the trustee has breached clauses 7 (v), (vii), (ix) and (x) of the will.

18.	Clause 8 of the will is also alleged to have been breached. The plaintiffs have testified that the trustee has not paid any money to them for the funeral expenses. This aspect of the evidence was not challenged by the defendant.

19.	The trustee was obliged and under a duty to keep aside $4,000 from the estate funds for the purposes of funeral expenses. It would have been impossible for the trustee to lay his hands on this sum of money from the deceased account at the time of the funeral because he was not appointed trustee at the time of the funeral. He was appointed trustee only on the 29th day of November 2006. The deceased died on 29th September 2006. Without being appointed a trustee, the defendant did not have access to funds from the estate. However, after being appointed as the trustee, the defendant was obliged to carry out the testators wish and a simple way of doing the same was to have paid the monies to the person(s) who had spent their funds to carry out the funeral. This payment should have been the first priority and made first but until now this aspect of the will has not been honoured. I find that the trustee has not carried out his duty under clause 8 of the will.

20.	I also find that the trustee has breached his common law duty as under the common law, one of the first duties of the trustee is to cater for funeral expenses of the deceased.

21.	The next alleged breach is clauses 9 and 10 of the will. It is alleged that the defendant as a trustee failed to discuss with beneficiaries the costs for the solicitors; paying the solicitors exorbitant amount of monies without consulting the beneficiaries and failing to distribute the balance proceeds to the beneficiaries in equal shares.

22.	Clauses 9 and 10 of the will reads as follows:-

"9. That the balance of the above sum, or the remainder shall be used by my trustee and executor Berenado Uluilakeba of Korotari Labasa to pay for all my legal expenses and other expenses and to see that my wishes are carried out in accordance of this my will.

10. That the remainder of all my property both real and personal shall be shared equally between my wife and my two children".

23.	The plaintiffs testified that the trustee paid the fees to the lawyers in an exorbitant amount and never discussed the same with them. The plaintiffs also testified that the trustee has never distributed the surplus funds to them under clause 10 of the will. The defendant stated that he has retained three lawyers. The total amount of monies he paid to lawyers is in the sum of $33,428.75. He stated that he paid $13,000 to Mr. Robinson, $10,000 to Mr. Kohli and $10,428.75 to Fa & Co. He paid money to Mr. Kohli and Mr Robinson but Fa & Co. deducted from the amount as per his authority. The beneficiaries had agreed to Mr. Kohli's cost.

24.	Under clause 9 of the will, the trustee was asked to use the balance of the monies to pay for all the testator's legal fees and other expenses and to see that his wishes are carried out in accordance with his will. The trustee paid $33,428.75 in solicitor's fees. A sum of $10,000 was paid to Mr. Kohli for his legal fees for making an application for probate. A sum of $13,000 was paid to Mr. Robinson to make a claim for the insurance proceeds and $10,428.75 was paid to Fa & Co to defend this civil action. I find that these amounts were paid without consultation with the beneficiaries. There is no written and signed authority from any beneficiary that they had consented to such large amounts to be paid from the estate funds in the form of fees. 

25.	However, the first two payments of $10,000 to Mr. Kohli and $13,000 to Mr. Robinson were expenses for the estate and rightfully falls under the term "other expenses" referred to in clause 9 of the will. I am not asked to judge the propriety of the payment in terms of quantum. That is thus not a matter for my jurisdiction. 

26.	Was the last payment to Fa & Co. a payment made for the proper expenses of the estate? The action that the testator defended was the action for him to be removed as the trustee. The defendant testified that he wants to carry out the wishes of the testator and so that is why he wishes to be maintained as the trustee. I have no doubt, given the demeanor of the testator that he thinks that he is the best person to administer the estate without whom the estate will suffer loss and it is for that reason that he spent the monies from the estate to be maintained as the trustee. It is another matter, that he did not carry out the wishes of the testator in breach of clause 9 of the will but his act of spending the money falls under other expenses.

27.	The question therefore, is, should the trustee have consulted the beneficiaries on this aspect and by no means, I answer the same in the affirmative. The trustee is appointed to administer the estate for the benefit of the beneficiaries and what is in their interest is most easily worked out after a discussion and dialogue with them all. The trustee does have the final management of the funds but that too should be in the interest of the beneficiaries. Here, the defendant continued using the funds on estate and did not even discuss the payment of large amount of monies for apparently small and simple legal transactions. The beneficiaries were entitled to know how the funds were being used. 

28.	I find that although the monies were spent on solicitors in terms of clause 9 of the will, the trustee breached his common law duty to consult and engage with the beneficiaries to discuss the affairs of the estate.

29.	Has the trustee breached clause 10 of the will? There is evidence from the trustee that large sums of cash had been in his solicitor's possession and he did not distribute the same to the beneficiaries. It was the duty of the trustee to have obtained the funds from his solicitors and distribute the same to the beneficiaries. He took no positive action to distribute the monies. There is uncontradicted evidence to this effect. I find that the trustee has breached clause 10 of the will as well.

30.	The plaintiffs have also pleaded breach of s. 43 of the Trustee Act, in that the trustee, failed to get a true value of the loss caused by fire to the property "Gold to Me" to obtain a proper payment for the loss from the insurer's, failed to discuss with the beneficiaries regarding the insurance claim and payment out of the insurance proceeds, and failed to reconstruct the property to generate income for the benefit of the beneficiaries.

31.	The plaintiff's evidence was that the property "Gold to Me" in Savusavu was burnt down. Insurance proceeds were uplifted and the beneficiaries' rights were compromised in that. The full amount of the value of the insurance was not obtained from the Insurance Company. The plaintiffs also stated in their evidence that they were not consulted on the amount to be uplifted, the actual amount uplifted from the insurance company and the application of the proceeds. The plaintiffs say that the said property is an income generating property and that it remains unconstructed till date. The trustee has not used any funds for reconstruction for the beneficiaries to derive the benefit from the same. 

32.	The defendant admitted that the property "Gold to Me" was burnt down. He does not know whether he obtained the policy. He instructed Mr. Robinson to lodge a claim with the insurer. He did not obtain quotations to find out the loss suffered by the estate from fire before lodging a claim. He lodged a claim without ascertaining the loss because the beneficiaries did not want him to be part of their business. He was chosen to be a trustee and he did not know what to do. He could not perform his duties because he did not know how to carry out the duties. He decided not to help the beneficiaries because they had filed a case against him to have him removed as the trustee. He did not discuss any matter with the beneficiaries regarding insurance or that the lawyers will take money from the estate funds. 

33.	"Gold to Me" was destroyed by fire. The trustee through his solicitors obtained part of the insurance value. The uncontradicted evidence is that the trustee never ascertained the loss suffered to the asset for him to be able to lodge and accept a proper claim for the insurance monies. S. 46 of the Trustee Act bestows on the trustee an obligation to have the trust asset valued to give effect to the trust. It reads as follows:

"46 (1). A trustee may, for the purpose of giving effect to the trust, or any of the provisions of the instrument if any) creating the trust or of this or any other Act, from time to time ascertain and fix the value of any trust property, or of any property that he is authorized to purchase or otherwise acquire, in such manner as he thinks proper; and where the trustee is not personally qualified to ascertain the value of any property he shall consult a duly qualified (whether employed by him or not) as to the value; but the trustee shall not be bound to accept any valuation made by any person whom the trustee may consult.

(2). Any valuation made by the trustee in good faith under the provisions of this section shall be binding on all persons beneficially interested under the trust".

34.	The trustee has not given any explanation why he obtained a sum of money lesser than the sum for which the property was insured. The least he could have done was to have obtained the value of the loss by fire and obtained a sum equivalent to the loss. The trustee should have exercised his discretion in favour of obtaining a valuation than not. I find him to have breached the provision of s. 46(1) of the Trustee Act when he failed to obtain valuation of a commercial building and obtain a true value for the loss. Any prudent trustee would have done the valuation.

35.	Further, before and after receiving the insurance proceeds, the beneficiaries were never consulted. The property was never reconstructed when it could have been, given that half of the insurance proceeds were still available. It was necessary to reconstruct the building as it was an income generating building having a nightclub and a pool table. The plaintiffs have presented unchallenged evidence that they wanted the property rebuilt for the purposes of generating income but the trustee wanted to sell it to someone outside the family.

36.	 By not exercising his discretion in favour of reconstructing the property, I find that the trustee has breached s. 43 (4) and (5) of the Trustee Act as well.

37.	S. 43(4) and (5) reads:-

"43.—(4) Any insurance money, or any part thereof, may be applied by the trustee, or, if in Court, under the direction of the Court, in rebuilding, reinstating, replacing or repairing the property lost or damaged; but any such application by the trustee shall be subject to the consent of any person whose consent is required, by the instrument (if any) creating the trust, to the investment of money subject to the trust.

(5) Nothing in this section shall affect the right of any person to require any insurance money or any part thereof to be applied in rebuilding, reinstating or repairing the property lost or damaged, or the rights of any mortgagee, lessor or lessee, whether under the provisions of this or any other Act or otherwise.

38.	Mr. Sen has not proved the value of loss the estate has suffered at the hands of the trustee, in not obtaining the true value and in not reconstructing the property, for the Court to assess the same, should it decide to give damages against the trustee for breach of his duty. 

39.	The defendant stated in his evidence that he is entitled to indemnity from the beneficiaries for any breaches. I do agree with him but there is a qualification for indemnity. Indemnity could be granted to the trustee if the beneficiaries had agreed and/or consented to the trustee's mode of operating: Halsbury's Laws of England 4th Edition; Volume 17; paragraph 1557 and s. 72 of the Trustee Act which reads as follows:-

" 72 (1). Where a trustee commits a breach of trust at the instigation or request or with the consent in writing of a beneficiary, the Court may, if it thinks fit, make such order as to the Court seems just for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or persons claiming through him."

40.	There is overwhelming evidence that the beneficiaries did not accept the way the estate was managed by the trustee and so the trustee was obliged to follow the rules by the will or the law.

41.	The last breach pleaded is against the common law duty in failing to provide accounts of the estate to the beneficiaries when requested to do so, to look after the beneficial interest of the beneficiaries by not entering into discussion and dialogue with them before dealing with the estate and its funds; and failure to avoid loss and damages to the estate.

42.	The defendant testified under cross examination that he has not prepared any accounts of the estate and has not given any to them. He also testified that the beneficiaries are not entitled to the account but he should have given the same to them. He further stated that there was $280,000 in the deceased's Colonial National Bank, Savusavu. He paid $119,000 debt to Fiji Development Bank from the $280,000 and $116,000 to the beneficiaries in terms of clause 7 of the Will. The amount left was $45,539.84 which was kept in the Bank. As regards to the insurance money, he received $120,000 and used $53,000 to pay the debt to the Fiji Development Bank. The balance of $67,000 was to be deposited in his account but Mr Robinson deposited the same in his account. He discontinued services of Mr. Robinson and went to Suva. His expenses were paid from the estate funds. He engaged Fa & Co. Fa & Co. also did wrong things so he discontinued its services as well. He then appeared in person. The plaintiffs then obtained injunction to stop him from dealing with the monies. He could not then play his role to look after the beneficiaries. He asked Fa & Co. to transfer all the money in his account and they did not follow the instructions and so he asked the Master of the Court to deposit the money in the High Court which was done. The money of $41,000 is now in High Court. 

43.	The defendant has failed to give the beneficiaries any account of the estate. He says he is not obliged to. On 8th April, 2010 the Master of the High Court gave an order that "Berenado Uluilakeba file an affidavit disclosing how, and for what the funds of the estate has expanded by 14/5". This order is an order for the defendant to give accounts of the estate. In light of this order the defendant cannot say that he is not obliged to give any accounts to the beneficiaries. His obligation is by law and which was made known to him by the grant of the order. By not following the order and rendering the accounts as per the order, he has breached his obligation by law. Further, the beneficiaries have indisputably testified that they had asked the trustee for the accounts but to no avail. They are in dark as to what is happening and I hold that they have a genuine cause to say this. 

44.	The trustee was under a common law duty to provide accounts to the beneficiaries.

45.	The Halsbury's Laws of England, 4th Edition, Volume 17, paragraph 1551 clearly stipulates that it is the duty of a personal representative to keep accounts and render them to the beneficiaries when called upon to do so. It states:-

"It is the duty of the personal representative to keep clear and accurate accounts and always to be ready to render such accounts when called upon to do so. It is no excuse that they are inexperienced in keeping accounts, for in that case it would be their duty to employ a competent accountant to keep them. Where they are required by the beneficiaries to furnish accounts, they may demand to have the costs of doing so paid or guaranteed before complying with the request …."

46.	The defendant, in no uncertain terms, stated that, he does not know his duties as a trustee and what he should do, how he should handle the estate. However he was told by the Court to furnish accounts. He did not do that. If he did not know what to do, he was obliged by s. 88(1) of the Trustee Act, to apply for directions from the Court:-

"88 (1). Any trustee may apply to the court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee".

47.	The trustee may not have known of his rights to seek assistance from the Court under s. 88(1) of the Trustee Act but he has had benefit of legal personnel from whom he should have asked about his duties, considering the large amount of monies he has paid from the estate funds in solicitor's fees.

48.	By s. 49(1), the trustee is authorized to hire a solicitor to assist him in the management of the estate. I see no reason why the trustee could not seek assistance from a solicitor. S. 49(1) reads:-

"49 (1). A trustee may, instead of acting personally, employ and pay an agent, whether a barrister and solicitor, accountant, bank, trustee corporation, stockbroker or other person, to transact any business or to do any act required to be transacted or done in the execution of the trust or the administration of the trust property, including the receipt and payment of money, and the keeping and audit of trust accounts, and shall be entitled to be allowed and paid all charges and expenses so incurred, and shall not be responsible for the default of any such agent employed in good faith and without negligence". 

49.	Despite having lack of knowledge on administration of the estate, the trustee failed, both in seeking directions from the court and employing a qualified agent for the effective management and administration of the estate. The breach is against the law.

50.	The plaintiffs have established their case that the trustee has breached the provisions of the will, the statute and the common law and that he is not a fit and proper person to administer the estate of the deceased. I also find that due to his lack of knowledge on administration which caused him to breach his duty as a trustee, he should not be maintained as a trustee and must be removed. Further, there is no possibility that the trustee can work with the beneficiaries or vice versa and therefore the estate is suffering immensely. To avoid any further losses incurring to the estate, I must remove this trustee and appoint someone who is capable of working with the other beneficiaries. The daughter of the deceased Ana Maria Matai is a capable person and as such I propose to substitute her in lieu.

51.	The Courts power to remove the trustee and appoint a new one is enshrined in s.35 of the Succession, Probate and Administration Act, Cap. 60, and s.73 of the Trustee Act. The provisions respectively read as follows:-
 
"s.35. The court may for any reason which appears to it to be sufficient, either upon the application of any person interested in the estate of any deceased person or of its motion on the report of the Registrar and either before or after a grant of probate has been made—

(a)	Make an order removing any executor of the will of such deceased person from office as, such executor and revoking any grant of probate already made to him; and

(b)	By the same or any subsequent order appoint an administrator with the will annexed of such estate; and

(c)	Make such other orders as it thinks fit for vesting the real and personal property of such estate in the administrator and for enabling the administrator to obtain possession or control thereof; and

(d)	Make such further or consequential orders as it may consider necessary in the circumstances".

"73—(1) The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is inexpedient, difficult or impracticable so to do without the assistance of the Court, make an order for the appointment of a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

(2) In particular, and without limiting the generality of the provisions of subsection (1), the court may make an order appointing a new trustee in substitution for a trustee who –

(a) desires to be discharged;

(b) has been held by the court to have misconducted himself in the administration of the trust;

(c) is convicted of any misdemeanor involving dishonesty, or of any felony;

(d) is a person of unsound mind;

(e) is bankrupt; or

(f) is a corporation that has ceased to carry on business, or is in liquidation, or has been dissolved.

(3) An order under the provisions of this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any discharged, former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.

(4) Nothing in this section contained shall confer power to appoint an executor or administrator.

(5) Every trustee appointed by the court shall have, before as well as after the trust property becomes by law or by assurance or otherwise vested in him, the same powers, authorities and discretions, and may in all respects act, as if he had been originally appointed a trustee by the instrument (if any) creating the trust."

52.	Before I leave the issues, I wish to touch on the aspect of general damages which has been claimed. No concrete evidence has been tendered to establish the loss that the estate has suffered at the hands of the trustee for not compliance with his duties bestowed upon him by the will, the statute and the common law. This aspect has also not been addressed in the submission. I therefore do not wish to venture on this aspect as the plaintiff has failed to prove the loss suffered. In any event, it was sheer lack of knowledge which I find has given rise to the improper administration of the estate. I do not find that it was the reason of dishonesty or fraud that gave rise to the breaches. Although the trustee should have applied for directions from the Court, I exercise my discretion in not awarding damages against the breach of the provisions of the will and the law and I seek refuge under s. 71 of the Trustee Act which reads as follows:-

"71. If it appears to the Court that a trustee, whether appointed by the Court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the Court in the matter in which he committed the breach, then the Court may relieve him either wholly or partly from personal liability for that breach". 

 However this decision will not affect my decision on costs against the defendant personally. The defendant, knowing his difficulties in managing the estate, and, having spent a huge amount of the estate fund for defending the action, wishes to continue as the trustee, knowing the flaws on his part and knowing that he cannot work with the beneficiaries. What worsens his situation as a trustee is that he has started fighting with the beneficiaries instead of looking after their affairs. He specifically stated that he does not wish to assist them as they do not recognize him and want him to conduct the administration. His attitude is most detrimental to the estate and the beneficiaries. How can he work for the estate and fulfill the wishes of the testator by fighting the beneficiaries? He should have realized and recognized long time when the action was filed, to concede to an order sought against him regarding removal. His defending the action has incurred more cost to the estate and he liable to pay it personally. I propose to summarily assess the cost.

Final Orders

53. For the reasons stated above, I find that the trustee has breached the provisions of the will and the law and that he is not a fit and proper person to administer the estate. I now exercise my powers and remove the defendant as trustee in the estate of Rogasiano Matai aka Matai Roga.

54. The grant No. 45692 appointing the defendant as the executor and trustee is hereby cancelled.

55. Within 7 days, the defendant must deposit the said grant in the High Court Registry, Suva.

56. The new trustee to be appointed is Ana Maria Matai d/o the late Rogasiano Matai aka Matai Roga. 

57. I direct that the defendant complies with the order of the Master in furnishing an account of the estate to the new trustee.

58. The defendant is ordered in his personal capacity to pay costs to the plaintiffs in the sum of $2,500.

59. The High Court Registry, Suva to give effect to the necessary orders, if need be.

60. The estate monies in the High Court Registry must now be paid out to the new trustee to comply with the provisions of the will. 

61. Orders Accordingly.

Anjala Wati
Judge

22.11.2011
To:
1.	Mr. A. Sen for the Plaintiffs; 
2.	 Defendant in Person. 
3.	 File: Labasa HBP 08 of 2008.