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In re Estate of Botu, Application for Probate by Tegavota [2013] SBHC 45; HCSI-CC 241 of 2012 (29 April 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 241 of 2012

IN THE MATTER OF Wills, Probate and Administration Act (Cap. 33)
AND IN THE MATTER OF the Estate of the Late Thomas Botu
AND IN THE MATTER OF an Application by Philip Tegavota for Probate and Administration in respect of the Estate Late Thomas Botu.

Date of Hearing : 22 February 2013
Date of Ruling : 29 April 2013

RULING

[1] The Late Thomas Botu ("the Testator") was a member of the Taonavua sub tribe of the Ghaubata Tribe. He was married with children and all live at Mataniko Village in the Guadalcanal Province. He had registered land comprising of Perpetual Estates and a Fixed Term Estate. He made his last Will on 24 February 2011. And he died on 20 November 2011.

[2] The testator was married to a woman from the Kakau Tribe. They have three children, a son and two daughters. These children are now adults and are married with their children. His children and his wife all live at Mataniko Village in their own permanent houses. His wife continues to possess and live at their permanent house. She also continues to use other properties which they acquired and used before his death.

[3] The beneficiary in the Testator's Will is his matrilineal nephew, Mr. Sam Kulolo, who lives at Mbokonavera, in Honiara. In his Will, the Testator devised five Perpetual Estates and one Fixed Term Estates. The perpetual Estates are in Parcel Nos: 191-077-5; 191-078-2; 191-080-4; and 191-077-11; 190-077-12 and Fixed Term Estate No: 191-061-18. The Estates are to be vested in Mr. Sam Kulolo for and on behalf of Mr. Sam Kulolo himself and the other members of the Taonavua sub tribe of the Ghaubata Tribe. In His Will the Testator also bestowed power and authority on Mr. Sam Kulolo to fill his place as registered trustee in Perpetual Estate No. 191-041-1, being leased to the Solomon Islands Government. Mr. Sam Kulolo has already been registered as a trustee in respect of PE No. 191-041-1.

[4] The issues in this application are first whether the Testator's Will is valid and secondly whether Mr. Philip Tegavota should be granted probate to administer the Will of the Testator.

[5] There is evidence in support of this application. In his Will, the Testator appointed Mr. Tegavota to be the executor of his Will. This is confirmed by Mr. Tegavota himself, in his Sworn Statement. Mr. Tegavota and the son of the Testator, Mr. Moses Botu, confirmed that they were present together when the Testator signed his Will. The beneficiary of the Will, Mr. Sam Kulolo, confirms in his Sworn Statement that he is the eldest nephew of the Testator. He further confirms that the Perpetual Estates and Fixed Term Estate devised by the Testator to him were registered in the Sole name of the Testator. Mr. Kulolo further confirms that it was Fr. Onesimo who was the celebrant of the funeral rite in relation to the Testator at Holy Cross on 20 November 2011. This was confirmed in a death certificate issued by Fr. Hermon Tique on 23 November 2011 at Holy Cross.

[6] The relevant provisions of law which apply in this case are sections 5 and 24 of the Wills, Probate and Administrator Act and regulation 2 of the Grants of Probate and Administration (Order of Priority) Regulations. It is plain from regulation 2 that, whereas here, the Testator dies leaving Will, the executor will have the priority to a grant of probate of the testator's Will. Section 24 stipulates that no grant of probation or administration shall be granted unless the Court is satisfied by oral, affidavit or such evidence as required by the Court.

[7] In this case, the Testator appointed Mr. Tegavota as his executor. Mr. Tegavota is a lawyer by profession. There is evidence that the Testator executed his Will when two witnesses were present together. These witnesses are Mr. Tegavota and Mr. Botu. The requirements of sections 5 and 24 of the Act have been satisfied. And provisions of regulation 2 as cited above have also been satisfied. The gross value of the Testator's estate is Thirty Nine Million One Hundred and Eleven Thousand dollars ($39,111,000.00).

[8] In the circumstances, the Court will allow the application grant the probate of the Testator's Will to his executor, Mr. Tegavota.

Order: 1. The Testator's Will is granted to Mr. Philip Tegavota.
2. The Perpetual Estates and the Fixed Term Estate registered in the name of the Testator to held by beneficiary, Mr. Sam Kulolo, for and on behalf of the Taonavua Sub tribe of the Ghaobata Tribe.

THE COURT