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Estate of Maclean Lopez [2013] VUSC 70; Probate Case 04 of 2013 (16 May 2013)

IN THE SUPREME COURT OFTHE REPUBLIC OF VANUATU
(Probate Division)

Probate Case No. 04 of 2013

IN THE ESTATE OF: LATE MACLEAN LOPEZ
Deceased

BY: JULIETTE TISCHENKO
Applicant

AND:

KAYE LOPEZ
CLINO LOPEZ
STINO LOPEZ
First Respondents

AND:

YVES LAU
Second Respondent

Coram: Mr. Justice Oliver Saksak

Counsel: Miss Jane Tari for the Applicant
Mrs Marisan P. Vire for the First Respondents/Defendants
No appearance by Second Respondent

Date of Hearing and Decision: 8th May 2013
Date of Reasons: 16th May 2013

JUDGMENT

1. This judgment provides the reasons for the oral decision and the orders handed down by the Court after hearing submissions from Counsel on 8th May 2013.
   
2. The applicant is the sister of late Maclean Lopez who died intestate on 8th December 2012. She applied under a purported Will of their deceased father John Lopez who died on 5th December 2008.
   
3. On 22nd August 1986 a residential lease was registered in favour of John Lope and his wife Bessie Lope as joint proprietors and lessees, and the Luganville Urban Land Corporation as lessor. The lease was for a 50 year duration.
   
4. On 27th February 2008 the then Minister of Lands Maxime Carlot Korman consented to the transfer of Leasehold Title 03/OI82/002 to Maclean Lopez for the consideration of VT500.000, as a family transaction.
   
5. There were two respondents. The first respondents are Kaye Lopez, surviving wife of late Maclean Lopez, deceased and her two sons namely Clino Lopez and Stino Lopez. The second respondent is Yves Lau who applies on the basis that he is owed moneys being for repairs to the deceased's vehicle. On the basis of re: Estate of Morris Manses Yves Lau's interests is only as a creditor and cannot be entitled to grant of administration. He is however entitled to proceed against whoever is granted administration in the estate of late Maclean Lopez. His response was therefore dismissed.
   
6. That leaves the first respondents who challenge the purported Will of John Lopez for reasons of irregularities.
   
7. The purported Will is annexed to the sworn statement of the applicant of 8th April 2013 as part of Annexure "A2". The applicant deposes to signing the purported Will dated 10th October 1944 in the margin (paragraph 1). Further, she deposes to witnessing the purported Will with her husband (paragraph 6). In paragraph 7 she deposes to the names of other relatives named as executors. And at paragraph 8 she deposes that those other named executors have not applied for probate.
   
8. The applicant also relied on the evidence by sworn statement of Donni Lopez dated 29th April 2013, Bessie Lope dated 6th May 2013 and of 26th April 2013 and of Freddy Wilson dated 15th April 2013.
   
9. Regarding the evidence in support of the applicant's application –
   
   • (a) The sworn statement of Bessie Lopez dated 26th April 2013 makes no mention of any Will left by her husband the late John Lopez. As his wife, she was the closest to her husband and it appears strange that he never disclosed the purported Will to her as one of the named beneficiaries at any one time. Further, her sworn statement of 6th May 2013 makes no mention of any Will but only of a power of attorney given on 3rd May 2013 to the applicant. This evidence is irrelevant.
     
   • (b) The sworn statement of Donni Lopez dated 29th April 2013 he deposes to a hearsay evidence as follows:-
     

"Mi wantem talem olsem ia sei papa John hemi bin talemaot long mi se graon ia bai hemi blong Juliette mo Eddie Lopez mo hemi bin mekem wan Will iko long Juliette forom"

The purported Will mades no mention of Eddie Lopez. And Eddie Lopez has not deposed to any sworn statement confirming same and neither has the applicant made any mention or reference to Eddie Lopez in both of her statements dated 8th April 2013. The evidence of Donni Lopez does not assist the applicant.

(c) The sworn statement of Freddy Wilson has three paragraphs. In paragraph 3 he deposed to witnessing his late father's signatures in various transactions but has failed to annex any samples of them for comparative and verification purposes. His evidence is therefore irrelevant.

10. Regarding the first respondents response, Kaye Lopez disputes that late John Lopez ever made any Will in favour of the applicant. She deposes to this in paragraphs 18, 19 and 20 of her sworn statement dated 26th April 2013. She deposes to the late John Lopez and Bessie Lopez agreeing to transfer the property to her late husband Maclean Lopez (paragraph 14). She deposes to the fact that her family had cared for the late John Lopez when he was sick and that he had made the late Maclean Lopez make a promise to him that upon his death, the late Maclean Lopez would take him back to Maewo and oversee his burial (paragraphs 15, 16 and 17). She further deposes to her marriage with the late Maclean Lopez on 28th May 1999 (paragraph 2 and 3). She deposes to a Pastor Jenny Singo witnessing their marriage (paragraph 5). And she deposes to them having 5 children and 1 adopted son (paragraph 6). The marriage is confirmed by Pastor Jenny Singo in her statement dated 26th April 2013. Stino Lopez deposed to a sworn statement dated 26th April 2013 that he is one of the sons of Kaye Lopez and Maclean Lopez. There is no mention of any Will by him.
    
11. The Issues
    

The issues raised for consideration and determination by both Counsel are –

(a) Whether the Will relied on by the Applicant is valid?

(b) Whether the Applicant can be granted probate and administration over the property vested in late Maclean Lopez's name?

(c) Whether the respondents have priority in law to apply for and be granted administration under the circumstances of the deceased?

(d) Whether the respondents are entitled to costs?

12. Discussions
    

(a) (i) In relation to the first issue, Mrs. Vire submitted the answer to be in the negative. She argued that due to a number of irregularities contrary to the requirements in the Wills Act [Cap. 55], the Will should be rendered null and void. She relied on the provision of sections 2, 3 and 6 of the Act. In response Miss Tari argued and submitted the Will relied upon by the applicant is valid. She made references to sections 2, 3, 5 and 17 of the Act. Section 17 states –

"1. Where any doubt exists as to the validity or the true meaning of a Will the executors or any of them, or any person having an interest in the Will may apply to the Court to have the validity determined or the Will construed.

2. In construing a Will the Court shall not be bound by any technical terms of what might otherwise be considered technical terms but shall be concerned solely to ascertain the true intention of the deceased."

(ii) In essence Miss Tari argued that despite there may have been irregularities, the true intention of the deceased was clearly demonstrated by the Will itself.

(iii) The Court disagreed with Miss Tari for the following reasons –

(a) Both Counsel omitted to make any references to Section 4 of the Act which states –

"A Will may be in any form or language, but shall –

(a) be in writing;

(b) be signed or thumb printed by the testator at the foot of every page of the Will and at the end of the Will in the presence of at least two witnesses present at the same time."

(Underlining for emphasis).

(b)The purported Will as annexed by the applicant has only one signature at the foot of at least three pages. That signature is questionable whether it is John Lopez's signature; because in the lease documents annexed by the applicant the late John Lopez signed as "John Lope" under a signature that appeared below Bessie Lope's. The applicant's evidence therefore are contradictory to each other. Then it is to be noted that at paragraph 1 of her sworn statement dated 8th April 2013 the applicant deposes as follows:-

"The Document dated 10th October 1994 signed in the margin by me and by the person before whom this sworn statement is made is, I believe, the last Will of the deceased."

(c)The Court presumes that the applicant is referring to page iv of the purported Will which shows the date being 10th October 1994. Below the date is the term "signed" with an "x" and a signature. From the applicant's evidence in paragraph 1, this is her signature and not John Lopez's signature. That signature is almost identical to the signature of the applicant at the end of her sworn statement made before a Commissioner for Oaths.

(d)The handwriting contained in the purported Will is also questionable whether it is John Lopez's or someone else's. Comparing them with the writing of John Lopez when signing his full name appearing on the Lease Document, it appears the late John Lopez was writing with a shaky hand. And the signatures on the Lease were made on 22 August 1986 whereas the purported Will is dated 10th October 1994, some 8 years later when John Lopez was much older. However, the handwriting on the purported Will appears too good to be John Lopez's handwriting. Paragraphs 11 and 12 of the applicant's sworn statement dated 8th April 2013 show the applicant's husband drafted the Will. Clearly the issue of biase arises to question the true intention of the testator.

(e) The purported Will is not witnessed by two witnesses at the end to comply with the mandatory requirement by the word "shall" in section 4 of the Act.

(f) Section 10 of the Wills Act provides for presentation of Wills. There is no evidence by the applicant that she took steps to preserve the Will to ensure adherence to the requirements of sections 11 and 12 of the Act in order to place certainty on the Will.

(g) It is for these reasons that section 17 of the Act is rejected as having any relevance. The issue does not concern the use of technical words and their meanings but rather whether the Will, if in fact it was made, was made in compliance with the requirement of section 4 of the Act. And the answer clearly is no. Therefore clearly the Will is not valid and the applicant cannot rely on it to apply for administration of the estate of late Maclean Lopez. Clearly lease title 03/OI82/002 has been transferred to Maclean Lopez and is registered in his name. It has therefore become part of his estate on his demise.

(b) (i) In relation to the second issue, the answer is in the negative for the simple reason that Lease Title 03/OI82/002 has been registered in the name of Maclean Lopez as proprietor and not John Lopez.

(c) (i) In relation to the third issue, the Court accepted the submissions by Mrs Vire that Kaye Lopez and her children have priority in law to apply and be granted administration of the estate of their late father/husband. Sections 6 and 7 of the Succession Probate and Administration Regulation 1972 (Queens Regulation) provide the legal basis for this submission. Section 6 provides for the priority or hierarchy as follows:-

(a) & (b) Wife or Husband of the Deceased.

(c) Children of the Deceased.

(d) Parents of Deceased.

(e) Brothers and sisters of the deceased of whole blood and the children of the deceased of this group.

(f) Brothers and sisters of the deceased of half blood and the children of the deceased in this group.

(g) Grand-parents.

(ii) Section 7 provides for persons who are entitled to grant and states –

"The Court may grant administration of the estate of a person dying intestate to the following persons (separately or conjointly) being not less than twenty-one years of age –

(a) The husband or wife of the deceased; or

(b) If there is no husband or wife to one or not more than four of the next of him in order of priority of entitlement under this Regulation the distribution of the estate of the deceased; or

(c) ..............."

(iii) Section 5 of the Regulation provides that only this Regulation alone shall form the basis for distribution of any rights, title, share, estate or interest in any property of an intestate.

(iv) It is for the above legal reasons that the Court granted administration over the estate of late Maclean Lopez to his wife Kaye Lopez and two sons who are of age being Clino Lopez and Zimarco Lawac.

(d) (i) On the issue of costs, the first respondents claimed for the sum of VT375,000. They argued that they were put to unnecessary costs in initating a proceeding which was misconceived.

(ii) There is no record showing the applicant paid the appropriate fees for initiating this proceeding. The fees would have been VT50,000 because the value of the title is well over VT1,000,000.

(iii) There is no record the first respondents paid the appropriate fees of VT50.000 because the amount claimed in the estate is in excess of VT10 Million.

(iv) There is in record that only Yves Lau paid the sum of VT10.000 upon filing his response.

(v) The first respondents have benefitted from the action brought by the applicant. For that reason, it was the view of the Court that they should not be entitled to any costs but that each party should pay their own costs. However it is necessary that, having won on the Response, the first respondents/defendants should now pay their fees of VT50.000 for the grant of administration made in their favour. It is up to Counsel Mrs. Vire to arrange payment of those fees with the Registry of the Court.

(e) (i) Miss Tari raised a further issue in her written submissions as follows:-

"Why did the Applicant not come to Court with the Will immediately after late John's death?"

(ii) The answer given by counsel is because "the Applicant lives in Augtralia and was working after the death of her late father. The only time the Applicant was allowed time was this year to pursue matters in Court. She had not known of the transfer made to her brother late Maclean till she arrived this year to pursue this cause."

(iii) There are untruths in those answers. Bessie Lopez in her sworn statement dated 26th April 2013 says at paragraph 15 that Juliette hemi kam long Luganville long 2010 mo pem rod blong mi blong kam stap wetem hem long New Look Motel long Santo."

(iv) In her further sworn statement dated 8th April 2013 the applicant says at paragraph 23 that in September 2012 she came back to visit her father's grave and called a family meeting to discuss an agreement over the will.

(vi) These inconsistencies bring the credibility of the applicant and Mrs. Bessie Lopez into question that render their evidence inadmissible.

(f) There is one final point which the Court considered. Paragraphs 7 and 8 of the sworn statement of the applicant dated 8th April 2013 states names of other "executors" and that they have not applied. Rule 2.2 of the Probate and Administration Rules Order No. 28 of 2003 sets out the various requirements to be complied with when applying. More importantly sub rule 5(a) requires that –

"If not all executors are applying for probate, the applicant must:

(a) obtain a sworn statement from any executor not applying, setting out why he or she is not applying; or

(b) If this is not practicable, include in his or her sworn statement the reasons why it has not been obtained."

(g) Clearly the applicant did not comply with Rule 2.2 (1)(a), (b), (c) and Rule 2.2 (5) of the Rules.

Conclusions

12. It is for the foregoing reasons that the Court refused the applicant's application and granted administration instead to Kaye Lopez, Clino Lopez and Zimarco Lawac in the terms issued in the Administration Order issued on 8th May 2013.
    

DATED at Luganville this 16th day of May 2013.

BY THE COURT

OLIVER A. SAKSAK
Judge