By Ms. Supreena Naidu, AP Legal, Lawyers, Fiji
In Fiji, the general presumption is yes, which is largely true under the Trustee Act. However, under the Succession, Probate and Administration Act (referred to as the SPAA), no consent is required. The instrument of trust, for example, a deed or will, determines which statute is applicable when selling estate property.
Which Statute Law is Applicable?
Trustees, and Executors and Administrators find their power to sell land in an Estate in both the Trustee Act and in the SPAA. Both allow for a sale of a deceased estate property, but have a different approach to obtaining the beneficiaries’ prior consent. While the Trustee Act requires that there be a written request from the beneficiaries to the Trustee to sell the land, the SPAA allows Executors and Administrators to sell the land as the deceased could have done in their lifetime. The authorising instrument of trust determines which statue law is applicable. In Ashwani Devi Singh v Pratima Devi and Registrar of Titles, the High Court of Fiji held that Executors, Administrators and Trustees appointed under a Will or the Law of Intestacy following the SPAA exercise their power under the SPAA, and not the Trustee Act.
So if property is subject to an Estate and has been issued upon a grant of Probate or Letters of Administration, the power to sell is derived from the SPAA. Here, a beneficiary’s consent is not required and Executors and Administrators have the power to sell the property in the best way possible as the deceased would have.
This power is not absolute
Executors and Administrators, and Trustees alike have a fiduciary duty to act to the benefit of beneficiaries and to all parties with any interest. This includes to sell at a fair market value, to act impartially and to act in good faith. Any decision to sell can be challenged, if contrary to beneficiaries’ interest or fiduciary duty.