MacQueen v Pierre & Anor (MC 6 of 2023) [2024] SCSC 215 (9 February 2024)

MADELEINE, J

Introduction

1. The late Alexandre Deltel died in Seychelles on 8^th July, 1981. On his death, his daughter Jeanne Marise McQueen (born Deltel) was appointed executrix to his estate pursuant to an order of the Supreme Court made on 17 July 1981, per Wood, J.

2. The executrix - Jeanne Marise McQueen (born Deltel) – then died on 9^th May 2011.

3. On 22^nd May 2015, upon application, the 1^st Respondent – Paul Holden Pierre – was appointed executor to replace the deceased executrix Jeanne Marise McQueen.

4. The Petitioner - Nicholas Alexandre William McQueen – is the son of Jeanne Marise McQueen and the grandson of the late Alexandre Deltel. He has petitioned this court for the removal of the 1^st Respondent as executor to the estate of the late Alexandre Deltel.

5. The Curator, the 2^nd Respondent herein, has been joined to the Petition in terms of section 25(5) of the Curatelle Act, 2021.

The Petition

6. The Petition is supported by the affidavit of the Petitioner made on 30^th May 2023. The basis for the application is made out in the following paragraphs of the supporting Affidavit –

“6. That I am informed by my lawyer and verily believe that the 1^st Respondent had no lawful interest to petition for the appointment of executor, as he is not the son of the Deceased, as alleged in his application, and is not an heir of the Deceased. A copy of his birth certificate and his application for appointment of executor are exhibited collectively as DOC 5.

7. That I fear that, unless he is removed as executor, the 1^st Respondent will not act in the best interest of the heirs of the Deceased, namely my sister Marise Anne Pamela McQueen and myself, who are the sole surviving heirs of the Deceased. A copy of my sister’s birth Certificate is exhibited herewith as DOC 6.

8. That I verily believe that it is necessary, for the reasons above stated, for the 1^st Respondent to be removed as executor of the estate of the Deceased, to enable a new executor be appointed in lieu.”

1^st Respondent’s Affidavit in Reply

7. The 1^st Respondent opposed the Petitioner’s application in his Affidavit in Reply dated 16^th May 2023 on both points of law and merits. On the law, the 1^st Respondent opposed that –

(i) prima facie, the application has no foundation or substance and does not sustain in law;

(ii) the Petitioner’s Affidavit is defective for failing to comply with the requirements in relation to jurat, body of affidavit and manner of exhibiting documents; and

(iii) the application is defective in that the Applicant had not averred or stated under what provision of the law it is making the application.

 

8. On the merits, the 1^st Respondent responded to the Petitioner’s Affidavit as follows –

“8. That the averments in paragraph 6 of the Applicant’s Affidavit are denied and the Applicant is put to strict proof thereof. That I aver that I have satisfied the supreme court that I have a lawful interest and was lawfully appointed as executor to the estate of the late Alexandre Deltel.

9. That the averment in paragraph 7 of the Applicant’s Affidavit are vehemently denied and the Applicant is put to strict proof thereof. That I verily believe and I am advised that paragraph 7 is a blank averment and not substantiated with proof thereof.

10. That I verily believe and I am advised by my Attorney that in consideration of the grounds of this application through it’s signed affidavit, this application for removal as executor is not substantiated and therefore ought to be dismissed.

….

12. That I aver that I was appointed as a person in good faith with a legitimate concern in the administration of that estate of the late Alexandre Deltel as evidenced in my replacement as executor dated 22^nd May 2015 and my certificate de bapteme and a copy of Index from register of Baptism, copies of which are shown to me marked as Exhibit R1 and R2 respectively.

13. That I am verily advised by my Attorney that unless averred and substantiated by proof thereof that I have acted in breach of my duties and obligations as an executor there is no valid reason why my appointment has to be revoked, vide Suttie & Anor v Rebecca David (SCA 25 of 2015 [2017] SCSC37 (7 December 2017).

14. That I sincerely submit that the Applicant’s Affidavit is clearly frivolous and vexatious and the Application should be dismissed with cost awarded to the Respondents.”

2^nd Respondent’s Response

9. The 2^nd Respondent filed its response to the application wherein it made the following preliminary observations reproduced below –

“Preliminary observations

1. The Second Respondent notes that, based on Exhibit DOC 2, the Petitioner is the grandson of the Deceased and the son of the late Mrs. Jeanne Marise Mc. Queen (nee Deltel) (“the Previous Executrix”) who died on 9^th May 2011 (see Exhibit DOC3). Thus, it would appear that he has the relevant standing to make the application for the removal of the First Respondent as executor of the Deceased’s estate.

 

2. By order, dated 22^nd May 2015 (2015) SCSC 152 (See Exhibit DOC 4), the First Respondent was appointed as the executor of the Deceased’s estate, thereby replacing the Previous Executrix.

 

3. In the application for appointment as executor of the Deceased’s estate, the first Respondent averred that he was the son of the Deceased on the basis of the certificat de bapteme and a copy of the index from the Registrar of Baptisms.

 

4. It is submitted by the Second Respondent that, contrary to what the First Respondent stated to the Court in those proceedings, paternal descent can only be established by a certificate of birth or a court order or a deed of acknowledgment, and not by way of a certificat de bapteme or an entry in the Registrar of Baptisms.

 

5. The Second Respondent therefore submits that, in circumstances where the Deceased is not named on the certificate of birth of the First Respondent and where the First Respondent failed, based on the point made in paragraph 7 above, to establish his paternal descent from the Deceased, legally, he cannot be said to be the child of the Deceased. It is noteworthy that this is what this Court found in the earlier case of Pierre and ORs v McQueen [1983] SLR 155 (see Annex 1 to this Response)

 

6. The Second Respondent notes that it is trite law that, for one to be appointed as executor of an estate, he or she need not necessarily be an heir of the deceased person. In such circumstances, one needs to only prove that he or she has a lawful interest in the estate and it is not subject to any legal incapacity. It seems that, in the earlier proceedings, the Court found that the First Respondent met both of these requirements.

 

7. In so far as the Petitioner now seeks redress from this Court by way of this application for the removal of the executor, it is clearly arguable that, by finding that the first Respondent had a lawful interest in the land by virtue of the Court finding that he was the son of the Deceased, the Court could be said to have wrongly made the appointment.

 

8. To the extent that it is now averred that the Court erred when appointing the First Respondent as executor by order of 22^nd May 2015, the Second Respondent notes that, at no point up until the instigation of these proceedings, did the Petitioner or any other person seek to appeal the earlier ruling.

 

9. The effect of this is that the ruling in the earlier proceedings is one that can be said to be final. As such, the Second Respondent’s position is that, insofar as the Petitioner's applications rests on the fact that the First Respondent, as executor, will not act (or has not acted) in the best interest of the Deceased’s estate, this is something that would need to be substantiated and proven before this Court can come to a ruling on the application. At present, the Petitioner has failed to provide legitimate reasons to substantiate this belief or averment.

 

10. Considering the above, the second Respondent invites the Petitioner to provide the Court with sufficient evidence to support his position, so that the Court may make an appropriate assessment as to what the proper order should be in this instance.”

Evidence

10. At the hearing of the application, only the Petitioner testified. Counsel for the 1^st Respondent informed the court that his client would rely entirely on his Affidavit and will not testify, but will submit on the points of law raised in the said affidavit. The 2^nd Respondent did not call any evidence either.

11. The Petitioner’s testimony largely confirms the matters deposed in his supporting affidavit. Namely, that he is the grandson of the late Alexandre Deltel who died on 8^th July 1981 and the son of Jeanne Marise McQueen (born Deltel), the daughter and first executrix appointed to the estate of the deceased Alexandre Deltel. He further testified that he has one sibling, Dr. Marise McQueen who resides in Scotland. Together with Dr Marise McQueen, they are the only heirs entitled to the estate of the late Alexandre Deltel. His mother Jeanne Marise McQueen (born Deltel) died in 2011. Further, that the 1^st Respondent applied to the court to replace Jeanne Marise McQueen as executor to the estate of the late Alexandre Deltel on 19^th March 2015.

12. At the time of 1^st Respondent’s application, both the Petitioner and his sister Dr. Marise McQueen were alive. The 1^st Respondent was most certainly aware of their existence at the time but he concealed that fact in his application. On the contrary, the 1^st Respondent’sapplication asserted that he was the son of the late Alexandre Deltel on the strength of his certificate of baptism and extract of the baptismal register.

13. The Petitioner testified that his grandfather’s estate has been largely wound up with the transmission of most of his properties to the Petitioner and his sister Dr. Marise McQueen. The only outstanding part of his grandfather’s estate requiring resolution, consist of properties that had been compulsorily acquired by the Government and that are now due for return to the heirs. The sole beneficial heirs of the land due to be returned by the Government are the Petitioner and his sister Dr. Marise McQueen. If the 1^st Respondent were to continue to act as executor, his duty would be to transfer the land returned by the Government to the Petitioner and his sister Dr. Marise McQueen. However, the Petitioner is not satisfied that the 1^st Respondent would do so. The Petitioner believes that the 1^st Respondent would intercede and redistribute the land to other persons. The Petitioner also pointed to the fact that the 1^st Respondent got himself appointed as executor to the estate of the late Alexandre Deltel without communicating with the Petitioner and his sister Dr. Marise McQueen. The 1^st Respondent’s application shows that he would go underhand. Since the heirs had not been informed, they were incapable of knowing what was happening and of dealing with the 1^st Respondent’s appointment within the period. In fact, it was only around 2017 or 2018 that the Petitioner became aware of the appointment of the 1^st Respondent as the executor to the estate of the late Alexandre Deltel. The Petitioner found it very unfair that the 1^st Respondent’s application had even been accepted by the court.

14. Since the 1^st Respondent’s appointment, there has been no direct communication between the 1^st Respondent as executor to the estate of the late Alexandre Deltel and the heirs of the said late Alexandre Deltel. The only connection between the heirs and the 1^st Respondent to date, has been the Petitioner’s statement before the TRNUC (“Truth Reconciliation and National Unity Commission”) and which was maintained by the Petitioner on oath that if Government returns land compulsorily acquired from Alexandre Deltel, the heirs intend to transfer part of the land, namely the area known as L’Usine to the 1^st Respondent and his brother Helm Sounadin on account that they had lived there during their youth.

 

15. In cross-examination by the 1^st Respondent, the Petitioner maintained his evidence in chief regarding the state of the succession of his late grandfather. The succession is largely wound up, with the exception of land compulsorily acquired by Government and due for return to the heirs and possibly other properties owned by the late Alexandre Deltel that he is not aware of.

16. The Petitioner confirmed that the basis of his application for removing the 1^st Respondent as executor is his belief that the 1^st Respondent will not act in the best interest of the heirs. He disputed counsel’s suggestion that he had not brought proof to substantiate his belief and pointed out that the 1^st Respondent could have only acted for his own benefit in not declaring that there were other heirs in his application for appointment of executor. The Petitioner explained that in doing so, the 1^st Respondent had fraudulently put himself in that position. He however admitted that he did not know whether the 1^st Respondent had breached his duties as executor. In response to counsel’s suggestion that there was no proof of any breach of duty by the 1^st Respondent and that the estate of the late Alexandre Deltel having been largely resolved, the Petitioner explained that this part of the succession had been resolved by them (meaning the heirs of Alexandre Deltel) and that is different from the properties that are still in Government’s hands. In response to counsel’s other suggestion that he is insinuating that the 1^st Respondent has control over the Government’s acquisition of the other parts of the estate, the Petitioner stated that he believes that the 1^st Respondent has more control over it as he is local and knows people in the Government which he didn’t.

17. In cross-examination by the 2^nd Respondent, it was clarified that the estate of the late Alexandre Deltel was largely wound up through an affidavit on transmission by death upon the death of Jeanne Marise McQueen with no involvement of the 1^st Respondent. The Petitioner maintained that the reason for seeking the 1^st Respondent’s removal as executor is that he will not act in the best interest of the heirs of Alexandre Deltel and that he will not transfer all the properties due to be returned by the Government to the heirs. This is evidenced by 1^st Respondent’s dishonesty in his application for appointment as executor.

18. In re-examination, the Petitioner confirmed that he feels that the 1^st Respondent has designs over the properties subject to return by the Government and that if they are returned, the 1^st Respondent is likely to take as much of it as he can and transfer it to persons other than the heirs, being the Petitioner and his sister Dr. Marise McQueen.

Submissions

 

19. The Court requested written submissions from the parties and these were duly filed by the Petitioner and the 1^st Respondent. The 2^nd Respondent, the Curator, relied on their preliminary observations made in their response to the application as reproduced under paragraph [9] above.

Petitioner’ submissions

20. The Petitioner submitted that two issues arise for consideration by the court. One, can a person who has no lawful interest, petition the Court (as it then was), or Curator to either appoint an executor or be appointed as executor? Two, can the executor shift the burden to the heirs, to show that he has not acted in their best interest when the executor did not disclose to the Court that the Deceased had other heirs?

 

21. On the first issue, the Petitioner relied on Section 23 (2) of the Curatelle Act 2021 (previously Article 1026 of the Civil Code) to submit that a person must have a lawful interest in order to be appointed as executor. The Petitioner concurred with the 2^nd Respondent’s preliminary observations made in its response to the effect that the Petitioner does not meet the criteria of a person having a lawful interest as his birth certificate lists a nil entry for father’s name and given the decision of the court of appeal in Pierre and Ors v McQueen [1983] SLR 155. Petitioner submitted that the 1^st Respondent’s baptism certificate and extract from the register of baptism cannot and should not be used as a substitute for a certificate of birth and most importantly to circumvent the decision of the highest court of the land delivered in 1983.

22. On the second issue, the Petitioner made the following submissions. Notwithstanding the norm that executors can only be removed for wrongdoing and failures to act as indicated in the case of Suttie & anor v Rebecca David (SCA 25 of 2015) [2017] SCSC37 (7 December 2017, where the executor wilfully fails to disclose facts in his application for appointment, that if disclosed would have very probably led to him not being appointed, that in itself is sufficient to relieve the executor of this duties. The overarching duty of an executor is one of a fiduciary duty towards the heirs. The executor must always act in the best interest of the heirs.

23. In failing to disclose to the Court that the Deceased had two heirs (i.e. the Petitioner and his sister) and in failing to notify the heirs of his intention to petition the Court to replace Jeanne Marise McQueen as executor, the executor misled the Court and committed a fraud. Had the executor both recited in his petition the fact that there were legitimate heirs and given notice to the heirs, the Petitioner, and his sister would have been made a party to the proceedings and would have been able to either object to the appointment made by the Supreme Court or appeal it in the event that they were unsatisfied with it. The executor's failure to do the above is in itself sufficient to show his unsuitability. However, the 1^st Respondent’s appointment was not through a fault of the Court as the court made a decision on the information available to it. Rather, the 1^st Respondent was appointed through his own fault by misleading the Court and not disclosing all relevant information.

24. The Petitioner submitted that whether or not an executor has committed any acts or omission should not be the only criteria when considering removal of an executor as otherwise the Court would be rewarding the executor for his own turpitude and passing to the Petitioner and the heirs the burden of unseating the executor for wrongdoing after the appointment when the wrongdoing was within the appointment itself.

25. The Petitioner distinguished the present case from the case of Suttie (Supra) in that the executor in Suttie was appointed through a genuine mistake by the executor as to his status. Where this happens, such an appointment is voidable and there is a necessity for the Petitioner to prove that the executor has acted in subsequent breach of his duties and has not acted in the best interest of the heirs in order for his appointment to be revoked.

26. The Petitioner further submitted that in the present case, the executor was appointed after having misled the Court and on the basis of his own fraud. Where an appointment is improper from the outset, as with the present case, the appointment is avoided, and there is no need to look for a subsequent reason as to why the executor should be removed. The executor cannot be allowed to rely on his appointment and lack of default to remain in office, as this would result in the Court rewarding turpitude and endorsing fraud.

1st Respondent’s submissions

27. The 1^st Respondent submitted that the petition failed to establish any legal grounds for the removal of the executor. The application is laden with unsubstantiated allegations and lacks the foundation to sustain in law. Moreover, the applicant has not specified under which provision of the law he is making such an application, rendering it defective.

28. The 1^st Respondent also relied on the case of Suttie & Anor v Rebecca David (SCA 25 of 2015) [2017] SCSC 37 (7) to submit that the Petitioner’s failure to show that 1^st Respondent had breached his duties as executor meant that there are no valid grounds for his removal. Further, the contention that the 1^st Respondent did not have a lawful interest is misconceived. The 1^st Respondent has demonstrated his lawful interest and lawful appointment as executor. The issue in contention herein is whether there is proof of breach of fiduciary duties. Notwithstanding this proof, it is submitted that the Applicant/Petitioner has even failed to aver these “grounds “for removal of executor averring solely at paragraph 7 of his Affidavit in support of the application that “unless the 1^st Respondent is removed as executor the 1^st Respondent will not act in the best interest of the heirs of the Deceased.”

29. By not having not averred the relevant grounds nor expounded on the applicable legislative provision, the Petitioner cannot expect the Court to determine the true contention behind its Petition, in essence, the Court would be unable to grant the Petitioner the relief sought unless this has been specifically prayed for and averred in its affidavit. This defect is thus fatal to the Petitioner’s application.

30. The 1^st Respondent’s submissions conclude that the petition to remove him as executor is frivolous and vexations. The lack of substantiation of legal provisions under which the application is made, and the lack of requisite prayers and averments further reinforced by the unsubstantiated allegations of the Application further diminish its merit.

Points of Law

31. The 1^st Respondent raised the points of law summarised under paragraph [7] above.

32. The first point that the application has no foundation or substance and does not sustain in law has been addressed in the written submissions together with the merits. Further submissions were invited from respective counsel on the remaining two points, namely whether the application and the supporting affidavit were defective.

33. At the hearing of the points of law, Counsel for the 1^st Respondent withdrew his objection to the supporting affidavit on the ground of being defective in relation to the manner of exhibiting documents. Counsel then submitted to the Court on the failure to comply with requirements in relation to the jurat and the body of the affidavit, and the failure to state the provision under which the application was made.

34. It was submitted that the affidavit in support of the application is defective in that it does not contain the jurat and the body does not contain a paragraph to confirm that the statements are made according to the Petitioner’s knowledge. Counsel referred the Court to several authorities, namely the cases of Savoy Development Limited v Sharifa Salum [2021] SCCA 45 (13 August 2021) and Joubert v Joubert [2022] SCSC465 MA105/2022 (3 June 2022) referring to the case of D.L de Charmoy v P.L de Charmoy SCA MA 08/2019 (17 September 2019), to submit that the defects highlighted were fundamental and therefore fatal to the application. Counsel also maintained that the failure to indicate the legal provision under which the application is made also renders the application defective.

35. Counsel for the Petitioner submitted that there are no defects in the manner in which the statements are made in the affidavit and referred the court to paragraph (1) of the said affidavit to the effect that –

“(1) That unless the contents of this affidavit are expressed to be true to the best of my knowledge, information and belief, the contents are true.”

36. Counsel submitted that it is clear from the above paragraph that the statements made therein were made on oath before the notary and were made to the best of the Petitioner’s knowledge. Counsel admitted that the full name and address of the notary before whom the Affidavit was sworn were missing from the jurat but, nonetheless, submitted that this did not invalidate the affidavit. The name of the notary appears on the affidavit and the notary is known to the Court as a person qualified to take affidavits. Thus, it is clear to the deponent and any person reading the affidavit that it was made at chambers of the notary in Victoria. It is not fatal that the application does not cite the law under which the application is made. Pleadings do not rehearse the law but simply state facts. At any, rate the Respondent is able to ascertain the legal provisions under which the application is made from the averments and facts stated in the application and supporting affidavit.

37. I have carefully considered the submissions made on behalf of the parties on the points of law, the Petitioner’s Affidavit together with section 170 of the Seychelles Code of Civil Procedure and the case of D.L de Charmoy v P.L de Charmoy SCA MA 08/2019 (17 September 2019) on Affidavits.

38. Section 170 of the Seychelles Code of Civil Procedure provides that –

“Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory applications, on which statements as to his belief, with the grounds thereof, may be admitted.”

39. I find that paragraph 1 of the Petitioner’s Affidavit is consistent with section 170 of the Seychelles Code of Civil Procedure. I agree with counsel for the 1^st Respondent to the extent that the Petitioner’s Affidavit is not in the best form. However, I note that the Jurat contains the signature of the Notary before whom the affidavit was made with his name and capacity as “Notary Public, Republic of Seychelles” clearly stated on his seal affixed. The fact that his address is incomplete in that it refers to “at Chambers Victoria, Seychelles” does not in my view render the affidavit fundamentally defective but lacking in description.

40. I also find that the objections raised in relation to the Petitioner’s affidavit are different to the defects raised in the cases cited by Counsel for the 1^st Respondent. In the case of Savoy (supra), documents to be used in connection with the affidavit, namely a power of attorney, had not been exhibited. The case of Joubert concerned an amendment to a statement of defence.

41. As regards the absence of stipulation of the legal provisions under which the application is made, I agree with Counsel for the 1^st Respondent to the extent that, at the very least, the heading of the application could have stated the nature of the application. That said, the nature of the cause of action is clear from the statements and prayers of the petition and affidavit. The failure to state the legal provision caused no prejudice to the 1^st Respondent.

42. I therefore dismiss the points of law on these grounds and proceed to hear the case on the merits.

Merits

43. Based on the submissions of the Petitioner and 1^st Respondent, and the preliminary observations of the 2^nd Respondent, the main issue that arise for determination is whether the 1^st Respondent should be removed as executor to the estate of the late Alexandre Deltel.

44. This does not involve this Court sitting on appeal from the earlier Court’s order of appointment, as cautioned by the 2^nd Respondent in its preliminary observations. It simply involves the court answering the question, whether on the basis of the application and evidence, there are grounds for the removal of the 1^st Respondent as executor?

Law and Analysis

45. Section 23(2)¹ of the Curatelle Act, 2021 (hereinafter referred to as the “Curatelle Act”). Act provides for the appointment of persons having a ‘lawful interest’ as executors.

46. Section 25(4) and (5) of the Curatelle Act, 2021 provides for the revocation of the appointment of an executor by a Judge, on application made by petition and supporting affidavit –

“(4) A judge may revoke the appointment of an executor.”

(5) An application under subsection (4) shall be made by petition supported by affidavit of facts and unless the curator is the petitioner, the curator shall be made a party thereto.”

47. In the case of Suttie and Anor v David SCA 25/2015 (7 December 2017) the Seychelles Court of Appeal considered whether an executrix should be removed on the ground that she was not the daughter of the deceased based on the deceased’s certificate of birth. Fernando, PCA found that where the court’s order of appointment is based on information available before it and there is no argument that it was perverse, an appointment of executrix based upon inaccurate information remains valid. In her separate judgment Twomey JA found that in such circumstances the executrix may be removed for failure to carry out her duties.

48. In Patricia Mathiot v Judette Maria [2023] (18 December 2023) Robinson JA considered the case of Suttie (supra) and found as follows –

“According to the Judgment of Fernando then JA and that of Twomey JA, the appointment of an executor of the estate of a deceased person based on inaccurate information is still effective unless it can be argued that the order of the court is perverse. I have carefully considered the Judgment of Fernando JA and Twomey JA, and I hold the view that Fernando and Twomey JJA did not intend for an executor to be removed at the appointment stage only if the order of the court appointing the executor is unlawful and contrary to law. I hold the view that an executor may also be removed if the court would not have appointed the executor had it been provided with all the relevant documents and information.”

(Emphasis added)

49. The decision in Mathiot (supra) expanded the grounds/reasons upon which an executor may be removed. An executor may be removed not only for failure to carry out duties but also where the order of appointment of the executor is unlawful and contrary to law and where it is established that the court would not have appointed the executor had it been provided with all the relevant documents and information.

50. In Mathiot (supra) the will of the deceased was not disclosed to the court at the time of application for appointment although the executrix was aware of the said will. Robinson JA found that the order appointing the executrix was based on information and documents presented before the then Master, and that there was no indication that if the said will been presented to the Master the executrix would not have been appointed. The appeal was allowed and the executrix was reinstated.

51. In the present case, the reasons for the Petitioner’s application to remove the 1^st Respondent as executor are stated under paragraphs 6 and 7 of the Petitioner’s affidavits reproduced under paragraph [6] of this Judgment. Paragraph 6 of the Petitioner’s Affidavit suggests that the 1^st Respondent did not have a lawful interest to petition the court to be appointed as executor as he was not the son of the deceased and therefore not an heir. In referring to himself as the son of the Deceased in his application to the Court, on the strength of his baptism certificate, he had given inaccurate information to the Court.

52. It is clear that an executor need not be an heir of the deceased as long as he satisfied the court that he had a lawful interest in making the application. Suttie and Mathiot (supra) establish that an order of appointment remains effective even if made on inaccurate or insufficient information unless it is shown that the court’s order is perverse or unlawful and contrary to law. There is no evidential basis to that effect in this present application. It is correct that the 1^st Respondent declared himself to be the son of the late Alexandre Deltel and exhibited his baptism certificate and a copy of an extract of the baptismal register in support of his application. A copy of the 1^st Respondent’s application has been exhibited to the Petitioner’s Affidavit. I am satisfied that the order of appointment was based on the materials placed before the Court at the time. The question is, had the Court been provided with the Birth Certificate of the 1^st Respondent with no reference to the deceased as his father and a copy of the Court of Appeal’s judgment in Pierre and ORs v McQueen [1983] SLR 155 would it have still have appointed the 1^st Respondent as executor? In my view, in the specific circumstances, it is unlikely that the Court would have done so. These two documents would have negated the averment in the 1^st Respondent’s application that he was the son of the late Alexandre Deltel. That would remove the element of ‘lawful interest’ in making the application.

53. I also consider paragraph 7 of the Petitioner’s affidavit that the Petitioner fears that the 1^st Respondent will not act in the best interest of the heirs. According to the Petitioner, the 1^st Respondent concealed the existence of the heirs in his application for appointment as executor and did not notify the heirs of the making of the application and of his appointment. The heirs only became aware of his appointment sometime around 2017/2018. Further, since his appointment as executor, the 1^st Respondent has not communicated with the said heirs.

54. Based on my finding under paragraph [52] above and since the estate of the late Alexandre Deltel is not fully resolved, I find that the 1^st Respondent should be removed and a new executor appointed in his stead.

Order

55. The Petition is allowed. I hereby order the removal of the 1^st Respondent as the executor to the estates of the late Alexandre Deltel and that a new executor be appointed in his stead as a matter of urgency.

Signed, dated and delivered at Palais de Justice, Ile du Port on this 9 day of February, 2024.

 

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A. Madeleine, J