Dugasse v Henriette and Anor (MC 33 of 2022) [2023] SCSC 110 (3 February 2023)

Adeline, j

 

 

INTRODUCTION

 

1. This is an application by petition, supported by an affidavit of facts and evidence, filed in Court by one Raphaela, Sharonne, Dugasse ( “the Petitioner”) against one Anastasie Henriette (“the 1st Respondent”) and the Curator (“the 2nd Respondent”) pursuant to Section 25(4) and (5) of the Curatelle Act, 2021. The Petitioner has filed this application in her  capacity as daughter and heir of her late father Archange, Amed, Pierre (“the deceased”) who died intestate on the 9th January, 2019, and who at the time of his death, left behind his succession from which the Petitioner is entitled to inherit.

 

PLEADINGS

 

2. By her petition, the Petitioner prays this Court for the following reliefs, namely;

1. an order removing the 1st Respondent Anastasie, Henriette as executrix of the estate of her late father Archange, Amed, Pierre to enable the Honourable Curator to appoint a new executor in lieu, and
2. an order that the deceased’s motor vehicle, a  Hyundai H1 minivan, bearing registration number S3086 be returned to the estate of the deceased.  

 

3. Inter alia, it is pleaded by the Petitioner that, on the 23rd September 2019, the 1st Respondent was duly appointed executrix of the estate of the deceased by the Supreme Court of Seychelles.

 

4. It is also pleaded by the Petitioner that, as executrix of the estate of the deceased, the 1st Respondent has not discharged her duties as executrix according to the law for the following reasons;

“(a) The 1st Respondent neither informed, nor attempted to obtain the consent of the Petitioner before transferring the deceased’s vehicle, a Hyundai H1 Minivan, bearing registration number S3086 (“the vehicle”) onto her sole name.

(b) The 1st Respondent, in a letter to the Petitioner dated 22nd June 2021, was not truthful when providing a rendition of accounts when she stated that;

1. The pledge against the  vehicle was in the process of being erased, when the pledge had already been erased since October 2019, and
2. that the charge  against the property was not being discharged when this had already occurred.

 

5. In her pleadings the Petitioner further states that;

“4. It has been many months since  the charge was discharged and the pledge removed against the deceased’s property and todate, the 1st Respondent has not provided any new accounts as promised in her letter to the Petitioner.

5. the Petitioner fears that, unless the 1st Respondent is removed as executrix, the 1st Respondent will not act in the best interest of the heirs of the deceased.

6. It is necessary, for the reasons above stated, for the 1st Respondent to be removed as executrix of the estate of the late Archange, Amed, Pierre and for the motor vehicle to the returned to the estate of the deceased”.

 

6. In answer to the petition, the 1st Respondent did file an affidavit in reply.  In her affidavit the 1st Respondent prays for an order of this Court dismissing the petition.

 

7. In answer to paragraph 4b of the Petitioner’s supporting affidavit to the petition, the 1st Respondent avers that, she “ had been advised by the Seychelles Licensing Authority to proceed in this manner”, which is understood to mean that, as per her pleadings, it was the Seychelles Licensing Authority who advised her to transfer the said  vehicle onto her sole name.

 

8. The 1st Respondent avers that, she has sold the vehicle to a 3rd party for SCR 150, 000, which sum is in an executorship bank account, number 01001127606018, exhibit P3.

 

9. At paragraph 7 of the affidavit in reply, the 1st Respondent denies that, she has not been truthful when providing a rendition of accounts, and about the pledge against motor vehicle S3086, as well as the charge entered against title PR 3296, contending that, when she wrote the letter dated 22nd June 2021, the discharge of charge in respect of title PR 3296 had not taken place.

 

10. At paragraph 8 of her affidavit in reply, the 1st Respondent denies paragraph 5 of the Petitioner’s affidavit averring that, she will not act in the best interest of the Petitioner if she remains executrix of the late Archange, Amed Pierre, contending that, “because the Petitioner had” broken all communication with her she was unable to render accounts of the affairs of the succession.

 

THE CASE FOR THE PETITIONER

 

11. The Petitioner’s  case based on her evidence, is that, after her late father Archange, Amed, Pierre (“the deceased”) passed away on the 9th January 2019, (exhibit P1 ), on the 23rd September 2019, the Supreme Court appointed the 1st Respondent executrix of the succession of the deceased to administer the succession, (exhibit P3).  That since her appointment, the 1st Respondent has acted in her personal interest rather than in the interest of the heirs as regards to the way she has administered the succession, ignoring her duties as executor as prescribed by law.

 

12.  The Petitioner’s testimony, was that, she as one of the heirs of the deceased, has been kept uninformed of the activities pertaining to the administration of the succession some of which only came to light after she made the necessary enquiries.  She testified, that she ought to have been consulted over certain decisions taken by the Petitioner in the administration of the succession.  She is concerned, that after more than two years since her appointment she has not obtained her share entitlement of the succession, while the Petitioner and her two children keep possession and occupation of the deceased’s land and house thereon.  She is particularly concerned of the fact that, todate, the succession has not been wound up.

 

13. It was the testimony of the Petitioner that, although the 1st Respondent is adamant that having been the ex-partner of the deceased with whom she has lived for many years and is therefore entitled to inherit from the succession, at the time of the deceased’s death, the heirs of the deceased were the Respondent’s two children and her only.  She testified that, as an heir of the deceased, she has to hold the 1st Respondent accountable.

 

14. In her evidence, the Petitioner stated that, although she knew that at the time of his death, the deceased owned a motor vehicle, precisely, a Hyundai H1 minivan bearing registration number S3086, and a plot of land and house thereon, she knew nothing about the various transactions undertaken by the 1st Respondent involving these properties until she made the necessary enquiries to the appropriate organizations or authorities.  The Petitioner stated, that she only got to know that the motor vehicle Hyundai H1 minivan had been sold and transferred onto the name of a third party for the price of SCR 150, 000 following a letter of reply to a letter addressed to the Seychelles Licensing Authority by her Lawyer then, Ms. Manuella Parmantier (exhibit P4 and P5).  As per her testimony, todate, the Petitioner has not received her share of the proceeds of sale of the motor vehicle.

 

15. As regards to the plot of land and house there on in the possession of the 1st Respondent which is being occupied by her and her two children, the Petitioner stated, that she did instruct her Lawyer then, Ms. Parlmantier, to write to the 1st Respondent and enquire  about the situation.  According to the Petitioner’s testimony, she did receive a written reply from the 1st Respondent dated 22nd June 202t1 (exhibit P6 collectively).  In her reply, amongst other things, the 1st Respondent had this to say;

“the process of winding up the succession of the deceased is continuing.  I did advise your client”.

 

16. The Petitioner testified that, she knows that there was a charge in favour of the Development Bank of Seychelles (DBS) registered against the title of the land and house thereon, but, that she was never updated by the 1st Respondent as to what transaction had been undertaken to have the charge removed.  The Petitioner stated that, she is also aware that, prior to his death, the deceased had entered into a promise of sale with one Mr Valentino to sell him part of the land and that todate, she has not been informed by the 1st Respondent about the steps that she has taken to ensure that the terms and conditions of the promise of sale have been kept by effecting the necessary transfer.

 

17.  It was the testimony of the Petitioner that, she is well aware that a valuation of the land and house thereon known as title PR3296 has been carried out and that she is in possession of a copy of the valuation.  She expressed her discontent with the fact that the 1st Respondent, as executrix of the succession of the deceased, had not done the needful since her appointment as executrix to make an inventory of the succession, pay all the debts and other liabilities, and distribute the remainder of the succession as per the law to the heirs.

 

18. The Petitioner testified that, although the 1st Respondent in her letter of reply to the letter wrote to her by Counsel representing her dated 22nd June 2021 indicated, inter alia that, she will make an inventory of the assets of the succession and a “tableau de distribution”, she is unaware whether or not this has been materialised because she has not been provided with a copy of the same.  The Petitioner further testified that, as a heir of her deceased father, she can no longer trust the 1st Respondent whom she said, has not been acting in her best interest as well as the best interest of her siblings, in her capacity as executrix of the succession of the deceased.  She moved the Court to make an order removing the 1st Respondent as executrix of the succession of the deceased, and to order the curator to appoint a new executor as a replacement.

 

19. The 1st Respondent’s case, based on her evidence, is that, she has spent so much of her own money, so much time and energy in the administration of the deceased’s succession, that, it would be unfair to have her removed as executrix of the succession of the deceased.  The 1st Respondent testified that, she has been performing several transactions and incurred several expenses paid with her own money in the performance of her duties in the administration of the deceased’s succession.  She explained that, she relied on legal advice from a Notary Public for some of the steps or actions she took in the administration of the succession.  That included, the decision to have the motor vehicle, the Hyundai H1 minivan  transferred onto her own name and later to a 3rd party purchaser for the sum of SCR 150, 000 and to open a bank account and credit the proceeds of sale in it.

 

20. The 1st Respondent testified, that the suggestion by the Petitioner that there is a delay in winding up the succession, although that may be the case, should not be attributed to her failure to act, but rather, because of the procedures that took time to be completed, and also, because these procedures were impeded by the COVID -19 pandemic restrictions.  According to her, amongst other things, these procedures had something to do with the removal of the pledge on the motor vehicle, the discharge of the charges entered against the property as well as the subdivision of the land to be able to honour the deceased’s  obligations under the promise of sale.  She explained that, todate, the subdivision has not been registered , and that she is now doing the needful to return the money paid by the promisee by virtue of the promise of sale made between him and the deceased.

 

21. The 1st Respondent stated that, she should not be removed as executrix given that, she has done a lot in the performance of her duties as the law so requires, and that the process is still continuing.  The 1st Respondent stated that, there remains very little for her to do to finally wind up the succession.  As per her testimony, she has not been able to wind up the succession because “she was waiting for the creditors to be paid and to clear off the loans and all”.  The 1st Respondent refuted the suggestion that, she has been acting in her personal interest instead of the interest of the succession, and indeed, the heirs.  Undercross examination, she explained why at the beginning she did transfer the motor vehicle onto her name.

 

22.   She stated that, she did so after obtaining legal advice from a Public Notary after the road fund license and the insurance cover on the vehicle had expired, and that, she never had any intention to keep the motor vehicle.  Over the contention that the vehicle was valued SCR 175,000 but she sold the same to a 3rd party for SCR 150, 000, the 1st Respondent explained that, she took such decision because she was advised that few parts on the vehicle needed to be replaced.  She conceded, under cross examination, that she could not tell the Petitioner that she was selling the vehicle because they were not in good terms and had “lost communication, coupled with the fact that she did not find it important to inform her about the sale.

 

23. The 1st Respondent testified that, to facilitate the sale of the motor vehicle, she had to communicate with the Development Bank of Seychelles, (DBS) to have the pledge removed, as well as having the charge entered against the land, title PR 3296 removed.  The 1st Respondent also stated, that she also had to communicate with the Nouvobanq to have the charge entered in its favour in respect of the land title PR 3296, removed.

 

24. To clear the Petitioner’s doubt about the position of the land and house thereon, in cross examination, the 1st Respondent stated that, the property is still registered in the name of the deceased, and therefore, still belongs to the succession of the deceased.  She stated that, the terms of the promise of sale agreed between the deceased and one John Lucas for the sale of part of the land cannot be honoured because there are issues about the subdivision which yet has not been registered, and that is the main reason why she has to refund the money to the creditor, that is, Mr. John Lucas, given that the succession is indebted to him.

 

25. Under cross examination, the 1st Respondent stated, that although in her letter to the Petitioner (exhibit P6 collectively) she gave an undertaking that she would prepare an inventory and give an appraisement of the property as well as swear an affidavit before a notary public, she has not done so, but is on the point of doing it because she is doing the needful to pay the creditors first and then she will distribute the remainder of the succession.  She reckons that, if she is allowed to remain as executrix of the succession of the deceased, she will do what remains to be done and wind up the succession.

 

26. Under cross examination, she conceded that, the main reason why she kept the Petitioner uninformed of the transactions she did in respect of the administration of the succession of the deceased, was because of the breakdown in communication between them, the cause of which had nothing to do with the administration of the succession.  She agreed that, she could have communicated to the Petitioner through her Lawyer but chose not to.  The 1st Respondent concluded, stating, that “it would be unproductive at this stage to change executor”.

 

27. On account of the evidence on record, it is the Court’s findings in this case, that although, arguably, the 1st Respondent has been slow in the administration of the deceased’s estate which has, of course, delayed the winding up of the succession, there is no real evidence at this point of any wrongdoing or omission on the part of the 1st Respondent that has seriously compromised her ability to discharge her fiduciary duties towards the heirs in the administration of the succession of the deceased. 

 

28. In fact, the evidence shows that, the 1st Respondent has performed her duties as executrix according to the law as would have been expected of her, and that, the application to have her removed as executrix of the succession of the deceased has been partly motivated by the breakdown of the relationship between the Petitioner and the Respondent, which in effect, has impacted negatively on the communication between them.  As a consequence, the Petitioner has been kept in the dark as regards to the administration of the deceased’s succession.

 

29. Clearly, therefore, this is also not one of those cases where the executor has done nothing since her appointment, and no effort is being made to wind up the succession.  In her evidence, the 1st Respondent explained that, she only came to know, very recently, that there is now a time limit of two years from the date of the death of the deceased to wind up the succession which was not the case at the time deceased passed away and at the time she was appointed executrix.  In fact, she stated, that when she enquired whether there is a time limit to wind up the succession she was told that there is no time limit.

 

30. Therefore, to be fair to the 1st Respondent, the Court has taken into account the fact that the 1st Respondent has reached a stage in the administration of the deceased’s succession where she should be allowed to continue in her position as executrix of the succession of the deceased to enable her to finish the job she has started.  Having said that, in determining this petition, I have been guided by the approach taken in two previous cases in which cases, the Petitioner had sought to have the executor removed.  The two cases in question are, Mussard v Mussard SCA 18 of 2018[2020]42 (18 December 2020), and Daniella Suttie & Anor vs Rebecca David, Civil Appeal SCA 25 of 2015, Appeal from Supreme Court MC 26 of 2013.

 

31. In Mussard (Supra) the Court of Appeal, on its review of the evidence on record, found that after 13 years of her appointment as executrix, the executrix had not wind up the succession.  The Court remarked that “the Appellant was monopolising parcel LD10 and using it as her own and for her benefit.  For instance, the Appellant and her daughter paid off the outstanding portion of the land loan and the Appellant subdivided LD10 in November 2014, after she was appointed as executrix of the succession…… The Appellant built a house on the property for herself, and even permitted her daughter and one of her sisters to each built a house of the property.”

 

32. Interestingly, in Mussard (Supra) the Court did make the following remarks;

“The Civil Code of Seychelles does not stipulate the period within which an executor has to perform his functions and discharge his duties as an executor after his appointment by the court.  It seems to me that the appointment of an executor for an undetermined duration can pose certain risks.  There is a likelihood that an executor may abuse his position and prolong the winding up of the estate for an indefinite period the risk is further aggravated, as cited by the learned Judge in this case, when an executor is uninformed as to his duties and functions.”

 

33. In Daniella Suttie (Supra) amongst other things, the Court had this to say;

“Until and unless the Respondent acts in breach of her duties and obligations as an executor there is no valid reason why her appointment has to be revoked”.

 

34. Having regard to all the circumstances of this case, and in view of the fact that the executor appointed (the 1st Respondent) has been performing her executorship duties within the confines of the law without unreasonable delay, I am of the view that, there is no necessity to remove her as executrix of the succession of the deceased at this point in time.  Her appointment is therefore maintained, and for this reason, the petition cannot succeed.  I find it necessary, however, to remind the executrix of her duties under Article 1027 of the Civil Code of Seychelles Act 2020 (“the Act”) that reads as follows;

“The duties of an executor shall be to make an inventory of the succession, to pay the debts thereof, and to distribute the remainder in accordance with the rules of intestacy, or the terms of the will, as the case may be.  He shall be bound by any debts of the succession only to the extent of its assets shown in the inventory.  The manner of payment of debts and other rights and duties of the executor, in so far as they are not regulated by this code, whether directly or by analogy to the rights and duties of successors to movable property, shall be settled by the Court”. 

 

35. It is also worthy of reminding the executrix in this case, that executors have a fiduciary duty towards the heirs.  Article 827 of the code is instructive on that point.  It is couched in the following terms;

 “A fiduciary shall be under a duty to render full and regular account of his management until such time as his functions are terminated.  He shall be liable for any damage or loss sustained by the property”.

 

36. In essence, the task facing the executrix in the instant case, is to make an inventory of the succession which I understand one is readily available, pay the debts of the succession and distribute the remainder in accordance with the rules of intestacy.  I am tempted, therefore, to give the executrix a time limit from today, to wind up the succession.  I have however, refrain from doing so, to avoid acting ultra petita.

 

37. I therefore remind the executrix, that if we are to go by the newly introduced time limit of 2 years (24 months) introduced by the Curatelle Act, 2021, she has a few months left to wind up the succession.  This Court, therefore, urges her to do whatever she is required to do by law as executrix of the succession of the deceased, and to wind up the succession without further delay, failing which she is likely to be removed as executrix to the succession of the deceased.

 

38. In conclusion, this Court dismisses the petition.

 

 

Signed, dated and delivered at Ile du Port on 03rd February 2023

 

____________

Adeline J