Case Note 2 of Volume 3, 1999

In the Matter of the Estate of Victor Eoaeo deceased,

High Court of the Solomon Islands,
Civil Case No 29 of 1997

Reported at University of the South Pacific School of Law Pacific Law Materials,
Solomon Islands Civil Cases

This decision provides a useful discussion of the rules relating to the appointment of administrators. The matter involved an application by the widow of the intestate for revocation of an earlier grant of letters of administration and further appointment of herself as an administrator of the estate. 

The court had, on an earlier occasion, granted letters of administration to a solicitor representing the estate of a former business partner of the deceased. There had been certain business dealings between them which appeared to constitute the business partner as a creditor of the deceased. The existence of the prior grant, however, required the court also to consider the circumstances under which the court would revoke an earlier grant. 

The earlier grant was made after Tevatova, acting under directions from the court to ascertain the views of the widow and children, had produced a letter from the son of the deceased disclaiming any interest in certain property said to have been transferred by the deceased to his business partner. This seemed at best flimsy evidence of compliance with the order made by the court but the grant was made nonetheless. It was the fact that the widow came to know of the transfer of property from the administrator to the estate of the business partner which triggered the current application.

The first question was thus whether the widow was subsequently entitled to set aside the earlier grant or to be appointed as an additional administrator. An alternative view might be that the earlier grant should stand and that the priority of the widow to a grant had been lost. 

The relevant law applicable was that in force in the Solomon Islands before the passing of the Wills Probate and Administration Act 1987 in that the deceased died before that Act came into force in 1991. That Act now contains a provision which allows for the prescription of an order for priority of entitlement - see Legal Notice 26 of 1996 section 3. In England the rules formerly embodied in the Non Contentious Probate Rules 1951 are now amended pursuant to the Supreme Court Act 1981.

None of these provisions being applicable to the estate of the intestate here, the law relevant to determine the entitlement of the spouse was to be found either in the British Solomon Islands and Gilbert and Ellice Islands (Probate and Administration) Order 1914, the Common Law and Custom. The first makes no provision which determines the order of priority as to entitlement to letters of administration and provided only certain basic rules in relation to matters of probate and administration. Nor is custom relevant in such a situation. It was thus left to the Court to determine the issue according to the common law.

The court found that at common law priority was usually accorded to the widow or widower of the deceased followed by the child. A grant could be made to a creditor although subject to the prior right of the next of kin - see Blackborough v Davis (1700) 1 Salk. 38. As between several members of a particular class the party with the largest entitlement under the estate would be preferred.

The priority of the widow or widower (or for that matter others entitled to priority) could be lost where there was some disqualifying feature such as incapacity or absence from the jurisdiction. Bad character could also be a disqualification but this is not always so - see Re Paine [1916] 115 LT 135 and Re Arden [1891] P 147. Where a challenge is made to such a person's right to take out administration they must constitute "special circumstances and when they are alleged and successfully proved the court may grant [an] order that the person such as a widow or widower who is normally entitled to a grant of administration be passed over". Put another way, there would need to be very good reasons to depart from the established order of priority.

One of the preliminary issues which arose was one of procedure. The widow had obtained a stay of administration. He counsel argued that this stay should function permanently and there was no need for the court to revoke the earlier grant. The court rightly disagreed with this holding that the earlier granted needed to be revoked before any new grant could be made - see In the Estate of Thomas [1912] P 177. The court thus proceeded to consider firstly the issue as to whether the earlier grant should be revoked by the court.

As indicated above, on Tevatova's earlier application for administration he had been asked to contact the widow and next of kin of the deceased to bring forward their views as to his application for a grant. Only a letter from the child of the deceased was produced in a hearing before a different judge. The present court concluded that the widow was unaware. As Tevatova was effectively representing a creditor's interest in the estate, the widow and the children had priority. She had not consented to the application by Tevatova, nor had she otherwise compromised her entitlement to priority - see Re Barraclough [1965] 2 All ER 311. Thus the court was prepared to revoke the earlier grant.

However the court refused immediately to make a fresh grant to the widow in place of that revoked. It order that first notice of the application of the widow should advertised in order to bring the matter to the attention particularly of next of kin of the deceased but also other relatives and creditors and to enable them to file objections with the court if they so wished.

Professor R. Hughes
University of the South Pacific,
School of Law,

January 1999