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In re the Estate of Esau Asem [2003] TVHC 20; HC Civil Case No 29 of 2003 (24 September 2003)

IN THE HIGH COURT OF TUVALU

PROBATE JURISDICTION

CASE NO: 29/2003

IN THE MATTER OF the British Solomon Islands and Gilbert and Ellice Islands Probate and Administration) Order in Council 1914

AND IN THE MATTER OF the Pacific (Probate and Administration) Order 1977

AND IN THE MATTER OF an Application by LOSA ASEM for Letters of Administration of the Estate of ESAU ASEM (Deceased)

James Duckworth for the applicant

Hearing: 22 September 2003
Ruling: 24 September 2003

Ruling

The deceased, Esau Asem, was Ghanaian born and came to Tuvalu as a volunteer teacher. He married a Tuvaluan wife and stayed in Tuvalu with her and their children. He died here on 16 April 2000 two days before his 51^st birthday and at the time of his death was the Curriculum Officer for the Ministry of Education. He had become a Tuvaluan citizen as a result of his marriage.

He left no will and the Court has been asked to determine the law under which the estate should be administered.

Administration of Tuvaluan estates is conducted under the provisions of the Native Lands Act and the Administration of Native Estates Regulations but the provisions of those laws apply only to natives. By the Interpretation Act, "native" means an indigenous inhabitant of Tuvalu and a descendant of an indigenous inhabitant, whether wholly or partly of indigenous descent. Clearly the deceased in this case is a non-native (which by the same Act means any person other than a native) and so his estate cannot be administered under the Native Lands Act.

Before Independence, non-native estates were administered under the provisions of the British Solomon Islands and Gilbert and Ellice Islands (Probate and Administration) Order in Council 1914 as later amended by the Pacific (Probate and Administration) Order 1977. It is clear that those laws are applied laws under the provision of the Laws of Tuvalu Act and I rule that they are the law to be applied in such a case.

By article 5 of the 1914 Order in Council, the High Court of Tuvalu is the Court of Probate and has "all such jurisdiction as for the time being belongs to any Court exercising probate jurisdiction in England". That applies in all cases of administration of estates of non-natives here and the jurisdiction shall be construed with such changes to names, titles, offices, person and institutions and other formal and non-substantial changes as are necessary to adapt it to the provisions of the Constitution. If further adaptation is required, the Attorney General may make amendment by regulation.

In the present case, on the information already supplied to the Court, the applicant widow is granted letters of administration in the estate of the deceased.

Dated this 24th day of September 2003.

THE COURT.