IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

ACTION No: HPP 18 of 2013

IN THE MATTER of the ESTATE OF SILOVATE LILICALA VEIDOVI

BETWEEN:

Ro Iva Qolouvaki Veidovi
PLAINTIFF

AND:

Atalaite Dibau
1st Defendant

AND:

Fiji Public Trustee Corporation Limited
2ND DEFENDANT

BEFORE : The Hon. Mr Justice David Alfred

Counsel : Mr. R P Singh for the Plaintiff
Ms N Raikaci for the 1st Defendant
Ms R May for the 2nd Defendant 

Date of Hearing : 15, 16 February and 1 March 2016
Date of Judgment :  9 March 2016

JUDGMENT
1. 	According to the Statement of Claim, the Plaintiff contends the deceased, who was aged 70 at the time of her death on 24 June 2012 had executed a Will on 6 January 2012 when she was not of sound mind, memory and understanding, the particulars of which were appended below the PARTICULARS. The 1st Defendant is the sole beneficiary under the Will, while the 2nd Defendant was appointed the Executor and Trustee of the estate of the deceased.
2. 	The Plaintiff further contends that the Will was not executed in accordance with the Wills Act in that it was witnessed by the employees of the 2nd Defendant which had an interest in being appointed as Trustee under the Will.
3. 	The Plaintiff therefore claimed that the Court pronounce against the said will and grant to the Plaintiff Letters of Administration of the estate and effects of the deceased.
4. 	The 1st Defendant in her Statement of Defence stated the deceased's husband had devised his half share of the property to the Plaintiff and denied the will is a purported one as the deceased was of sound mind, memory and understanding, understood the contents of the will and intended her property to be left to her niece (the 1st Defendant).
5. 	The 1st Defendant further contended the Will was executed in accordance with the Wills Act, as the attesting witnesses are not beneficiaries under the Will and the 2nd Defendant had been properly appointed executor and trustee. She therefore asked for the claim to be dismissed.
6. 	The 2nd Defendant in its Statement of Defence averred that the deceased had full understanding and knowledge of the Will and to whom she was disposing her property. The Will was executed in accordance with the Wills Act, as the 2nd Defendant being the appointed executor and trustee of the Will was entitled to be a witness as it was not a beneficiary and asked that the Plaintiff's claim be dismissed.
7. 	The Minutes of the Pre-Trial Conference (Minutes) record the following as the Issues to be Determined:
[1] 	Whether the deceased was of sound mind, memory and understanding when she executed the Will.
[2] 	Whether she signed it of her own free will.
[3] 	Whether the Will was executed in accordance with the Wills Act.
8. 	There is an Agreed Bundle of Documents (AB), and all 3 Counsel confirmed, at the outset of the hearing, that the documents therein were to be marked as exhibits. These are referred to as Exhibit AB followed by the page number.
9. 	The hearing commenced on 15 February 2016 with the Plaintiff giving her evidence. She was the adopted daughter of the deceased and her husband and had stayed with them all her life in the same house. (At this juncture the original will was sighted by me and all 3 Counsel and then returned to the safekeeping of the Chief Registrar).
10. 	The 1st defendant was also staying in the same house. The Plaintiff alleged that at the material time, the deceased was weak and her mind was sometimes working and sometimes not. A week after the deceased's funeral, she saw an advertisement in the newspaper put there by the 2nd Defendant. She went to its office and was told that the deceased had been brought there by the 1st Defendant in January 2012 to sign the will. She went to her Counsel, Mr Singh and told him this. Her mother never told her she had executed the will. 
11. 	Exhibit AB 19, the Will, was shown to her, and she said she could see the deceased's signature on it. She had nothing to say about the Will. The deceased did not receive any medical treatment. She did not know why Exhibit AB3 is a caveat placed by her lawyers. Exhibit AB14 was signed by the deceased and her and was written to the C.E.O of the 2nd Defendant to write all the properties under the names of herself and her husband.
12. 	Under cross-examination by Counsel for the 1st Defendant, the Plaintiff said she and her husband were frustrated and angry at the news of the Will. She does not respect the deceased's wish to transfer the property to the 1st Defendant. She does not respect the deceased's wish that she and her husband take half and the 1st Defendant take half. She said she says the deceased was not of sound mind when she executed the will and her reason for saying this was because when she asked the deceased to take her shower, she would reply back.
13. 	Exhibit AB11 is the letter to the CEO of the 2nd Defendant regarding the estate of the deceased's husband. The letter was written after the deceased travelled to the lawyer's office to give instructions to the lawyers. As a result of the letter, the deceased and her signed the consent. The lawyers' office is on the 1st floor.
14. 	Under cross-examination by Counsel for the 2nd Defendant, the Plaintiff said the deceased went to the 2nd Defendant's office by taxi. The 1st Defendant took the deceased there.
15. 	In re-examination the Plaintiff said the reason why she does not accept the Will is because she wants "everything to be mine."
16. 	The hearing continued on the next day (16 February 2016) when the Plaintiff's 2nd witness (PW2) Joni Soro and 3rd witness (PW3) Viliame Tabualevu both gave evidence. Their evidence was not relevant to the resolution of the legal issues at hand. With that, the Plaintiff closed her case.
17. 	The 1st Defendant (DW1) now started giving evidence. She had taken the deceased to the 2nd Defendant's office and dropped her there. She had not asked the deceased why she was going there. The deceased was a religious woman. She did not know if the deceased went to see her lawyer. The deceased told her she was going to the 2nd Defendant's office to check on something. One afternoon, the deceased told her she had written the half share in her Will for her and the other half share is for the Plaintiff. The deceased had never been taken to hospital for serious memory loss. Since 1973 she had been staying in the same house as the Plaintiff and her husband.
18. 	Under cross examination by the Counsel for the Plaintiff, the 1st Defendant said she had not suggested to the deceased to make a Will. The deceased had asked her to take her to the 2nd Defendant's office. She knew Lavenia, one of the witnesses to the will, because she belongs to the same church circuit. She did not know the other witness. She did not lead the deceased to the 2nd Defendant's office. The deceased did not have memory lapse at the time of making the Will. On the day of the making of the Will the deceased's mind was good. She did not connive with Lavenia to get the deceased to sign the Will.
19. 	The next witness (DW2) was Dr Shrish Acharya, a consultant physician at the Colonial War Memorial Hospital (Hospital). He is the Head of the Internal Medicine Department. He has access to the deceased's file and has gone through her medical report (Exhibit AB17) which is by Dr Rao, a consultant physician in the Medical Unit. He has read it. The brain atrophy there is a provisional report. The final report by Dr Paula Nakabea did not mention any cerebral atrophy. The cerebellum was normal. The final report is the binding and effective report. The no history of dementia stated means there is no history of any memory problem. There is nothing in the Hospital records about the deceased coming in or being treated for any memory problem.
20. 	Under cross-examination by Counsel for the Plaintiff, the doctor said he did not see the patient. From the folder, Dr Rao did not see the deceased. The deceased was in a comatose condition meaning she was not responding and not alert. It was the same as if she was unconscious. From the Hospital records the deceased did not come for any memory problem. She died on the day of admission.
21. 	When cross examined by Counsel for the 2nd Defendant, the Doctor said that when the patient was brought in, there was no indication from those bringing her in that she was suffering from memory loss. According to the Hospital file the deceased was previously well and had made no prior visits to the Hospital for memory problems.
22. 	The 2nd defendant's first witness (D2W1) was Lavenia M Bulewa, an estate officer in the 2nd Defendant's office for 19 years. On 6 January 2012, she was at her office and remembered serving the deceased. The deceased had come alone and had enquired about drawing up a Will. The deceased told her the relevant documents were in her deceased husband's file. The deceased had not come specifically to see her. The deceased was at the counter and she managed to help her and brought her to the interview room. There she advised the deceased how to draw up a Will and she understood what she was being told. The deceased told her the half share of the property was to be transferred to her niece whose name she mentioned as that of the 1st Defendant, because she (1st Defendant) was the only one looking after her. The deceased signed the Will voluntarily and there was another witness. The document on page 19 of the AB was the Will executed by the deceased that she had witnessed.
23. 	Under cross examination by Counsel for the 1st Defendant, D2W1 said she conversed with the deceased in i-Taukei who told her she wanted to draw up her Will. She said she wanted to give her half share to a niece with whom she was staying and gave the 1st Defendant's name. When she asked why the deceased was giving the share to the niece, she said the niece was looking after her while the adopted daughter did not care much about her. She explained the contents of the Will to the deceased in i-Taukei and the deceased agreed with the contents of the Will. She called another witness, an officer of the 2nd Defendant, Ms Selita. The deceased was mentally sound and responding to her questions accordingly.
24. 	During cross-examination by Counsel for the Plaintiff, D2W1 said she did not know the deceased prior to that. She did not know the 1st Defendant personally; she did not arrange with the 1st Defendant to bring the deceased to the 2nd Defendant's office and did not think it was important to record the age of the deceased. She did not ask the deceased about her mental condition. She was not aware if the deceased was suffering from memory losses. She knew the deceased was mentally sound.
25. 	Under re-examination she said she drafted the Will in accordance with instructions. It was not part of operating procedure to ask for a medical certificate.
26. 	The next witness was D2W2 Ms Selita Nakilimoce Jikoibau, who had been working with the 2nd Defendant for 24 years till 2014. She was approached by a colleague to witness a Will. D2W1 read the Will to the deceased in English and she explained it to the deceased in i-Taukei. The deceased said she understood and then signed the Will. No one forced her to sign the Will. The 2nd defendant was appointed the administrator of the estate. She recognized the signatures on the Will (tendered as Exhibit D2-1) as those of the deceased, the other witness and herself.
27. 	Under cross-examination by Counsel for the 1st Defendant, she said the Will was explained to the deceased in the i-Taukei language, and after that the deceased signed the Will, and after that she and the other witness signed.
28. 	When cross examined by Counsel for the Plaintiff, she said if there was any evidence that the deceased was not of sound mind, they would have requested for a medical certificate. She did not ask for a medical certificate because to her the deceased appeared to be of sound mind. She explained the will to the deceased in i-Taukei. The 2nd Defendant charges for drawing up a will and administration. It is the practice in the 2nd Defendant that its employees witness wills drawn by the 2nd Defendant.
29. 	In re-examination she said the 2nd Defendant is not the beneficiary. The beneficiary is someone else.
30. 	Counsel for the Plaintiff now submitted and referred to para 6 of the Statement of Claim. He said the Plaintiff and her witnesses testified the deceased could not recognize people and had memory loss. The 2nd Defendant's witness, Lavenia should have asked for a medical certificate that the deceased could comprehend what she was going to sign because the daughter was excluded. The deceased lacked testamentary capacity. He cited: Public Trustee v Bick [1973] 1NZLR 301.
31. 	Counsel for the 1st Defendant then submitted. The validity of the will is the crux of the issue. She referred to section 4 and 6 of the Wills Act (Cap 59) (the Act) and said age was not an issue. No medical evidence was adduced in Court that the deceased on the day she executed the Will was not of sound mind and understanding.
32. 	All the Plaintiff and her 2 witnesses said was the deceased was weak, forgetful and did not remember them. The Plaintiff confirmed the deceased was normal. The doctor's evidence was there was no history of dementia and no Hospital record of the deceased suffering from loss of memory. She submitted the deceased was of sound mind based on the documents and the evidence. 
33. 	Issue 2 in the Minutes of the Pre-Trial Conference, whether the Deceased had signed the Will of her own free will had not been pleaded in the Statement of Claim. Counsel concluded by stating the deceased knew of the contents of the Will and understood them and signed it after an explanation was given.
34. 	Counsel for the 2nd Defendant finally submitted. She said the 2 issues were: 
[1] 	whether the deceased was of sound mind when executing the Will.
[2] 	Whether the Will complied with the provisions of the Wills Act.
35. 	Regarding (1) she said the 1st Defendant had been in the house before the Plaintiff arrived. The 1st Defendant had looked after the deceased until her last days. Lavenia was the only officer available to receive the deceased. The Will only contained information supplied by the deceased. The Will had been explained to the deceased in English and i-Taukei and represents the true intention of the deceased. There were no suspicious circumstances to indicate to the 2nd Defendant's witness that the deceased was of (alleged) incapacity to make her will. 
36. 	Regarding (2), Counsel referred to sections 4 and 6 of the Act and to the case of: Banks v Goodfellow [L.R. Vol. V 1870] a decision of the English Court of Queen's Bench. The case laid down 4 main tests. The deceased was of sound mind to understand she had only a half share of the property. The paramount consideration for the court was to see that the Will represents the true intention of the testatrix.
37. 	Counsel for the Plaintiff in reply said Banks v Goodfellow shows the burden of showing the testator was fit is on the party claiming under the Will. 
38. 	At the conclusion of the hearing, I reserved judgment to a date to be announced.
39. 	In the course of reaching my decision, I have perused:
[1] 	The Bundle of Pleadings
[2] 	The Minutes of the Pre-Trial Conference (Minutes)
[3] 	The Agreed Bundle of Documents ((AB).
[4] 	The Wills Act.
[5] 	The authorities cited by Counsel on both sides.
40. 	I now proceed to deliver my judgment. At the outset I will state that based on the pleadings there are only 2 issues for me to decide:
(A) Whether the deceased was of sound mind, memory and understanding when she executed the Will.
(B). Whether the Will was executed according to the provisions of the Wills Act.
41. 	Because the issue whether the deceased signed the Will of her own free will was not pleaded in the Statement of Claim, it consequently does not fall for my consideration.
42. 	. A.
I start by considering the mental capacity of the deceased when she 	executed the will (the material time). I adopt what Hammond J said in Re Rhodes (dec'd) HC Wellington CP 25/02, 2002 at [38] –[39] "In short form, the law is that the testatrix must be of sound mind, memory and understanding." 
43. 	Nevill's Law of Trust, Wills and Administration, Tenth Edition, by Dr. N Richardson, Senior Lecturer in the School of Law, University of Canterbury states the legal position in New Zealand based on decided cases. As these are of persuasive authority on me I adopt and paraphrase what has been stated as follows:
[1] 	In probate proceedings those person propounding the will does 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.
[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 the person who seeks probate of the will and that onus must be discharged on the balance of probabilities.
[3] 	In order to establish capacity, when that is in issue, the person seeking probate must show that the maker of the will had sufficient understanding of 3 things:
(i) 	that he or she was making a will and its effect.
(ii) 	the extent of the property being disposed of.
(iii) 	the moral claims which he ought to give effect to when making the testamentary disposition.
44. 	My trawl of the decided cases leads me to the conclusion that courts lean towards the maxim of public policy "omnia praesumuntur legitime facta donec probetur in contrarium" which Osborn's Concise Law Dictionary translates as "All things are presumed to have been legitimately done until the contrary is proved." In other words "the normal presumption of due execution must be rebutted by those challenging the will's validity. In the instant case this means the Plaintiff. 
45. 	The following cases show this judicial paradigm. In: Brown v Pourau [1995] 1NZLR 352 (HC) it was held an elderly will maker had capacity despite being periodically subject to trances. In: Chambers and Yatman v Queen's Proctor [1840] 2 Curt 415, a generally insane will maker was held to have been lucid when he made his will, though he committed suicide due to the return of his insanity, the next day.
	In: Banks v Goodfellow, the will maker suffered the delusion he was persecuted by spirits, yet the verdict was to establish his will. 
46. 	At the end of the day, I am satisfied that the Plaintiff has failed to prove on a balance of probabilities that the deceased lacked testamentary capacity at the material time. The reasons for my so finding are appended below: 
[1] 	No Medical evidence was provided by the Plaintiff that the deceased lacked the animus testandi: On the contrary, the sole medical evidence in the medical report and the doctor's evidence both before me, satisfied me that the deceased did not suffer from any loss of memory or understanding or soundness of mind as to cause me to avoid the will. 
[2] 	That the Plaintiff's contention is untenable is shown clearly by the fact that the deceased – who was allegedly not of sound mind, memory and understanding on 6 January 2012 when she executed the will - was perfectly mentally competent on 2 May 2012, almost four (4) months later to execute, together with the Plaintiff, a letter of consent to the sale of the deceased's husband's estate property to the Plaintiff and her husband in the presence of a witness, Raman Pratap Singh, a solicitor in Suva, who by a letter of the same date had sent the said letter of consent to the Chief Executive Officer of the 2nd Defendant.
[3] 	The deceased knew what she was doing; she expressed her intention to give her half share of the property to the 1st Defendant; she was aware of the moral claims which she was giving effect to viz her half share to the 1st Defendant, her niece, who took care of her, because the other half share of the property would go to the Plaintiff. 
[4] 	In short, there is nothing irrational about the will as to cause me to think that the deceased might have lacked the necessary mental and testamentary capacity at the material time. The evidence that I set out in extenso above bears this out and I do not need to engage in any tautology here. So I turn now to:
47. 	. B.
Counsel on both sides have only referred to sections 4 and 6 of the Act. Section 4 lays down the minimum age of 18 years for one to have capacity to make a will. No upper age limit for capacity is prescribed.  Section 6 prescribes the requirements for the making of a will and those requirements have been met with regard to the will in question.

48. 	However I am constrained to also refer to section 9 of the Act as well. 
This provides that an executor is not on that account incompetent to be admitted as a witness to prove the execution of a will. 
49. 	The 2nd Defendant is the executor of the will. If the executor was a human person he would have been a competent witness. By the same token so can the executor's employees. Here the 2 witnesses are employees of the 2nd Defendant. Consequently para 7 of the Statement of Claim collapses as neither the 2nd Defendant nor the 2 witnesses are beneficiaries under the will. I therefore find and so hold, that the will was executed in accordance with the Wills Act.
At this juncture, it should be stated that the Public Trustee performs a public service for the populace by drawing up wills and administering the estates of deceased persons.

50. 	Suffice it to say that on a total review of the evidence, both oral and documentary and the cases and the applicable law, I find the Plaintiff has failed to show on a balance of probabilities why I should pronounce against the validity of the will executed on 6 January 2012 by Silovate Lilicala Veidovi.
51. 	In fine, I dismiss the Plaintiff's claims against both the 1st and 2nd Defendants with costs which I summarily assess and order the Plaintiff to pay in the sum of $1,000.00 to the 1st Defendant and in the sum of $1,500.00 to the 2nd Defendant.

Delivered at Suva, this 9th day of March, 2016.

……………………………
David Alfred
Judge of the High Court of Fiji