IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HPP0009 OF 1994S

BETWEEN:

NASIM BUKSH and SHAMEEM BUKSH
sons of Rasul Buksh
PLAINTIFF

AND:

MEREWALESI KURU
DEFENDANT

Mr. R. Prakash for the Plaintiff
Mr. I.V. Tuberi for the Defendant

JUDGMENT

At the end of the trial I asked for submissions to be made. While Mr. Prakash was ready to submit there and then, Mr. Tuberi felt unable to do so as he said this was his first probate case. While I would prefer immediate submissions, I felt that inadequate submissions may do injustice to the defendant so I allowed time to defendant. However in such cases, passage of time could result in obscuring of the mind on demeanour and credibility issues. In such cases it is usual for me to start working on the judgment before submissions are in especially as to findings of facts and then wait until time for submissions has run out to see what legal issues or special facts counsels have raised and then revisit my fact finding exercise.

On 3rd May 2005, I was informed by counsels that they would not be filing any submissions as parties had reached a compromise, the terms of which would be finalised after the court gave its ruling.

BACKGROUND:

Mohammed Buksh died on 27th March 1991 at Liverpool Hospital, Sydney, Australia. He was married to the defendant on 25th February 1975. Prior to his marriage he had a close sexual relationship with the defendant beginning in 1962 and a child was born on 10th August 1967. The two plaintiffs are his younger brothers who migrated to Australia the exact date of migrating is not known but they lived in Sydney, Australia in 1991. At the time of his death the deceased Mohammed Buksh was a registered proprietor of Certificate of Title 11850 and he had been so registered since 23rd February 1966.

Mohammed Buksh was buried in Sydney. His widow and daughter had gone to Sydney prior to his death. They returned to Fiji in May 1991. The second plaintiff accompanied them to Fiji and he stayed in Fiji for a week before his return to Australia.

On 19th December 1991 letters of administration were granted to the widow Merewalesi Kuru the defendant by the High Court of Fiji. On 18th February 1994 the plaintiffs filed a writ of summons in which they alleged that the deceased had made his last will and testament on 25th February 1991 in Sydney, and that they were the executors and trustees and also the beneficiaries named in the will. They sought that the Letters of Administration granted to the defendant be revoked and the court declare and pronounce for the validity of the deceased’s will and for an order that probate be granted to them. The statement of claim went through two substantial amendments after Justice Scott had ordered for a speedy trial on 20th July 1994 over ten years ago.

The gist of the defence is that at the time of the execution of the alleged will the deceased was admitted in Liverpool Hospital, Sydney. The defendant further says that the will could not have been executed on 25th February 1991 as she was with the deceased at the hospital the whole day but that it may have been executed a few days before his death on a day when the defendant and her daughter were asked to leave the hospital room. Additionally she alleges that the will was obtained through fraud and that the second named plaintiff had assisted her in engaging services of a solicitor to obtain letters of administration as there was no will.

A number of witnesses have testified. For the plaintiffs five persons gave evidence. They were Saten Sharma a court officer at High Court, Suva, Probate division whose sole role was to produce the file in respect of the estate of Mohammed Buksh 27524. The defendant testified and called two witnesses who were sureties in the application for letters of administration.

The first issue is whether there was a will. Plaintiff’s Exhibit 2 on the face of it is a will. It is dated 25th February 1991 and allegedly signed by the testator and witnessed by two persons who themselves are not beneficiaries. The three of them have signed in the presence of each other. Betty Simon (PW2) who was a social worker at Liverpool Hospital in 1991 said she was familiar with the plaintiffs and also Mohammed Buksh. She was shown the alleged will and she identified her signature on it as a witness and said it was signed by the deceased in her presence. Her role in respect of the will was purely as an attesting witness. However her testimony was enough to satisfy the prerequisites for the formality of making a will.

WAS THIS A VALID WILL:

The New Zealand Court of Appeal in J.J. Bishop v. P.J. Odea & Another – (1999) NZCA 239 considered the legal principles applicable in cases of testamentary capacity. It summarised the legal principles as follows:

“(1)	In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity Re White [1951] NZLR 393 (CA) and Peters v. Morris (CA99/85: judgment 19 May 1987).

(2)	If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have testamentary capacity rests on those who seek probate of the will: Public Trustee v Bick [1973] 1 NZLR 301 and Peters v. Morris (supra). 

(3)	That onus must be discharged on the balance of probabilities: Watkins v. Public Trustee [1960] NZLR 326 (CA). Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.

(4)	In order to establish capacity, when in issue, those seeking probate must demonstrate the maker of the will had sufficient understanding of three things: 

(a)	that he or she was making a will and the effect of doing so ("the nature of the act and its effects") 

(b)	the extent of the property being disposed of 

(c)	the moral claims to which he or she ought to give effect when making the testamentary dispositions. 

These three matters derive from the leading authority of Banks v. Goodfellow (1870) LR 5 QB 549 as cited by this Court in Ranby v. Hooker (Court of Appeal, Wellington, CA 172/96, 16 September 1997) and in Peters v. Morris (supra).

(5)	If incapacity before the making of the will has been established, those seeking probate must show the will was made after recovery or during a lucid interval. In such a case the will is regarded with particular distrust and there is, in the first instance, a strong presumption against it, particularly if it displays lack of moral responsibility in the nature of the dispositions: 4 Halsbury's Laws of England, Vol. 17 at para. 904.”

According to PW3 MOHINI INDIRA GUWASEKHAMA who is a barrister and solicitor practising in New South Wales and who also practiced in 1991 the will was prepared by her firm of solicitors on oral instructions of the plaintiffs. She had no independent recollection but testified by looking at the will which she said was a printout from her computer. According to her, instructions to her were given by Nasim Buksh who is one of the named executors and a beneficiary. She did not have any direct contact with the testator. Apparently there is no backing on the will to indicate it was prepared by her firm of solicitors. She had no diary with her so even the date she gave would be in reliance on what she saw on the will but the court was right throughout the trial kept in the dark as to who put the date on the will.

No one told the court as to who put the date on the will or when the date was put on the will. It is not told whether the will was dated on 25th February 1991 or at some subsequent day. This fact is important as the defendant said that the will could not have been signed on 25th February 1991 as she was with the deceased whole of that day. Opposed to her is the testimony of PW4 NASIM BUKSH and her brother SHAMEEM BUKSH that the attesting witnesses, the defendant and the defendant’s daughter were all present when the will was signed. According to the defendant her daughter had not accompanied her to Australia on 23rd February 1991 but went to Australia on 12th March 1991. Her evidence in this respect is supported by her daughter’s passport which showed her daughter’s arrival date in Sydney as 12th March 1991.

If the defendant’s daughter was present at the signing of the will, then surely the will could not have been executed on 25th February 1991. The arrival date on passport effectively disposes of it. Mohini Indira Gunasekhara had no reason to recall and say that it was 25th when the will was signed. Betty Simon had no reason to remember it too. The defendant on the other hand says she went straight to hospital from Sydney airport on 23rd February and the next day she spent both the day and night and remained at hospital the following day. She had not seen her husband for some time and he looked unwell so she remained in hospital to assist him.

I am mindful that there is a lot at stake for the parties. If the will is held to be a valid will, then the plaintiffs are entitled to take all the property of the deceased brother to the exclusion of all others including the defendant. On the other hand if the defendant succeeds, then she can exclude the plaintiffs and remain on the property. I also have to bear in mind that the events occurred in 1991 some fourteen years prior to hearing. At that time no one could have contemplated that a controversy would rage after the deceased’s death. It was difficult for witnesses at times to recollect events. The importance of bringing cases quickly to trial cannot be over-emphasised especially in probate matters, where an administrator or executor may act on a grant which is later revoked. There could be two reasons why the plaintiffs were so insistent that the defendant and her daughter were present at the time of execution of the will. The first is that this was an honest mistake. Secondly, that they were trying by asserting this to show that the defendant was an unscrupulous person who despite knowledge of the will obtained letters of administration. I am of the view that the latter was the objective but they were caught out by the arrival stamp of Sydney customs on the daughter’s passport.

I find that the plaintiff was not present at the time of the execution of the will in the hospital room but had been asked to leave with her daughter and she did. I have serious reservations that the will was executed on 25th February 1991. On this I have not only the defendant’s evidence which I found compelling but also it is fortified by Exhibit P1 which is a court file. In it is a letter written on 11th January 1994 by Koya & Company solicitors for the plaintiffs. There in paragraph 3 they state the “deceased’s widow Merewalesi having no knowledge of the existence of the will applied to court for grant …” Again in paragraph 7 of the first statement of claim filed on 23rd March 1994 the plaintiffs assert that in 1993 they came to Fiji and met the defendant to inform her of the deceased’s last will. One wonders what was the need for such information if she knew of the existence of the will.

The court is handicapped because there is no medical evidence from doctors to throw light on the capacity of the deceased at the time of the making of the will. However there is abundance of evidence that the deceased was in hospital and remained so till his death. The only significant evidence of how serious he was came from the wife, Merewalesi, who said on 23rd February 1991 when she went to hospital, she could not recognise her husband who had a swollen face and that he had difficulty sitting up. She elected to stay day and night so she could be with her husband. She also stated that towards the end he was very, very sick and he stopped talking altogether two days before his death. The other relevant evidence is from Betty Simon, a social worker who said that she felt confident that he signed the will after he understood it. That was the impression she got. However between Betty Simon and the wife, the wife knew her husband better while Betty Simon’s contact with the deceased were of short duration and few in number. One factor stands out like a sore thumb in this case and that is the will totally disinherits the widow and the daughter. The defendant’s widow had a continuous lengthy relationship of roughly thirty years. There is no evidence that the relationship was a torrid one or that the parties had any domestic cases during this time. The fact that the husband sent a message that he wanted to see his wife suggests that there was a closeness between the two. The wife too spoke affectionately of the husband. Even if one looks at the point of view of his brothers, one notes they had migrated to Australia so the need for them for a residence in Fiji was nil. Besides this is not a large estate. The estate is sworn at $26,100.00 gross value. The present value according to evidence is $50,000.00. The issue squarely is this: would a man in his right frame of mind put a loving wife and daughter on the road. I think not.

I have to look at the evidence holistically and not piecemeal. The instructions for a will are given by those who are beneficiaries; they allegedly remain hovering around while the alleged will is signed; the wife is asked to leave the room and the end result is the wife and daughter are disinherited without explanation. I am not satisfied at all that the will was signed on 25th February 1991. Having heard the witnesses, I am firmly of the view that it was signed much later on a day when the wife and daughter were asked to leave the room and at a time when the husband was seriously ill in hospital.

Accordingly I hold that the will is invalid. The plaintiff’s claim is therefore dismissed. I leave the issue of costs pending finalisation of compromise. The present letters of administration accordingly remain in force and the defendant remains the Administratrix of the estate.

[ Jiten Singh ]
JUDGE

At Suva
16th May 2005