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Cakau v Waqairawai [2018] FJHC 612; HPP51.2014 (18 July 2018)

IN THE HIGH COURT OF FIJI AT SUVA
PROBATE JURISDICTION

Probate Action No. HPP 51 of 2014

IN THE ESTATE of JOWANA RAILALA aka JOWANA RAILALAL CAKAU aka JOANA RAILALA CAKAU, JOANA CAKAU

BETWEEN : LAWRENCE CAKAU

First Plaintiff

AND : SOKOVETI CAKAU

Second Plaintiff

AND : TORIKA NASILASILA WAQAIRAWAI

Defendant

HPP No. 31 of 2014

BETWEEN : TORIKA NASILASILA WAQAIRAWAI as the Intended Executrix for the Estate of JOANA CAKAU aka JOANA CAKAU aka JOWANA RAILALA

Applicant

AND : SOKOVETI CAKAU

Respondent

Coram : The Hon. Mr Justice David Alfred

Counsel : Mr V. Filipe for the Plaintiffs

Ms L. Vaurasi, Ms S. Lesianawai with her, for the Defendant

Dates of Hearing : 23, 24, 25 and 26 October 2017

Date of Judgment : 18 July 2018

JUDGMENT

INTRODUCTION

By order of this court on 24 April 2015, the above 2 actions were consolidated. Civil Action No. 255 of 2014 would be heard thereafter.

1. The Plaintiffs in the Statement of Claims say as follows:
   • (1) They are the siblings of Jowana Railala aka Jowana Railala Cakau aka Joana Railala Cakau (the deceased) who died on 2 May 2014.
   • (2) The deceased never married and died without issue.
   • (3) The Plaintiffs are persons entitled to the share in the Estate of the deceased who died intestate.
   • (4) The Defendant claims to be the executor(sic) and trustee of the will of the deceased executed on 24 April 2014 (will).
   • (5) The will was obtained by the undue influence of the Defendant the particulars of which are set out over 3 pages.
   • (6) The deceased at the time of execution of the will was not of sound mind, memory or understanding, the particulars of which are itemized.
   • (7) The will is invalid and the deceased died intestate.
   • (8) Wherefore the Plaintiffs claims that the Court pronounce against the validity of the will and they be granted Letters of Administration of the Estate of the deceased.
     
2. The Defendant says in her Statement of Defence as follows:
   • (1) She is the executor (sic) and trustee of the will of the deceased executed on 24 April 2014.
   • (2) The will was signed by the deceased.
   • (3) The deceased was employed by Westpac Banking Corporation (WBC).
   • (4) The Defendant and the deceased were based at different branches of WBC.
   • (5) The Defendant was the deceased’s very good friend.
   • (6) The deceased asked for Livia, a close friend of the deceased, to care for her.
   • (7) The deceased was strong willed, alert, decisive and clear in her decision making, independent by nature and of a sound mind.
   • (8) The Defendant prays that the Plaintiffs’ claim be dismissed and caveat No.20 of 2014 lodged by the Second Plaintiff be removed.
     
3. The Plaintiffs in their Reply to Defence say as follows:
   • (1) The Defendant was a very close friend of the deceased and deliberately deprived the deceased of her medication.
   • (2) Livia was not the deceased’s friend nor a relative but only a caregiver recommended to the deceased by the Defendant.
     
4. The Minutes of the Pre-Trial Conference dated 23 May 2016 record, inter-alia, the following:
   

Agreed Facts

(1) The Plaintiffs are the siblings of the deceased who died in hospital on 2 May 2014, unmarried and without issue.
(2) The Defendant and the deceased were work colleagues at WBC.

Issues

(1) Whether the will was obtained by undue influence by the Defendant.
(2) Whether the will was signed by the deceased.
(3) Whether the will was a forgery executed at a time when the deceased was of unsound mind and did not understand the nature/contents of the will.
(4) Whether the Defendant was in a position of power over the deceased which caused undue influence over the deceased when she made her will and appointed the Defendant as the executor and trustee of the will.

5. The hearing commenced with the Plaintiff’s first witness giving evidence. He was Dr Ratu Vereniki Gordon Vula Raiwalui (PW1), a consultant in Zen Medical Centre, Nadi. He said he had been a consultant (anaesthesia and intensive care medicine) since 2010. The deceased was under his care in Suva Private Hospital (SPH) in 2014.
   
6. PW1 was alerted by a senior sister in charge that 2 legal practitioners had approached the patient to execute a legal document. The By Laws state that no one can see patients or have access unless the doctor in charge gives permission. He was the doctor in charge. At no time was any request made to him for access. The 2 legal practitioners were from the Shekinah firm, but the hospital could not identify who these 2 legal practitioners were.
   
7. Under cross-examination PW1 said he had come to court to give medical evidence as an expert. Under the code of ethics he has a responsibility to give information that is required to ensure the Court reaches a just decision. The best evidence is required by the Court, which will be the medical report or opinion of the specialist. On 29 April 2014 he met the deceased’s brother and sister and informed them a will/legal document had been done and they were upset. The deceased never complained against her helper, Livia, nor against the Defendant. The deceased never complained against the drafting of her will. It is possible she was in the right frame of mind when she made her will.
   
8. The next witness was Ms Sokoveti Cakau (PW2) the Second Plaintiff. She said she was a housewife and sister of the deceased. The First Plaintiff is the brother. The deceased was the manager of the Laucala branch of WBC. When she visited the deceased in SPH, PW2 told her she needed cash to pay her bills and would take the money out of the deceased’s account. When a security guard told her 2 legal practitioners came to the hospital and wanted the deceased to sign a document, PW2 was shocked and asked the deceased who did not reply. She discussed the matter with the Legal Practitioners Unit and the Criminal Investigation Department (CID). She wanted to complain against the lawyers, and to the CID to refute the signature on the will. In the will in para(iii) Margaret is her daughter. Any bill of the deceased was taken over by WBC. Her funeral expenses were paid by her ready cash and WBC.
   
9. Under cross-examination, PW2 said Livia was paid by the deceased. She was more concerned with the deceased’s welfare. She was not aware of the status of the deceased’s health. She would not know if she could converse and whether she could use a pen. She would not know her physical and mental condition. She would not know if there was any undue influence. She would not know of the deceased’s reliance on Livia. She would not know of the deceased’s reliance on the Defendant. She now knew the will was done on 24 April 2014. She is not in a position to make an assessment that the deceased had not the mental capacity to sign as she was not there. She cannot speak of the deceased’s mental state when she signed the will. She could not say anything at all as she was not present and has no medical experience. Her daughters have benefitted from the will. She was upset that others had benefitted from their father’s and the deceased’s sweat.
   
10. There was no re-examination and with that the Plaintiffs closed their case and the Defendant opened her’s.
    
11. The first witness was Ms Livia Naidei Tabanivefi Vakacabeqoli (DW1). She is a church cleaner. The deceased called her on 3 March 2014 and wanted her to go over to massage her. She cleaned, bathed her, and cooked her food from 2014. The Second Plaintiff and her children took the deceased’s ATM card. They lived in the house that the deceased bought. The deceased told her she and her siblings always fight and they are not always good to the deceased.
    
12. Under cross-examination, DW1 said she informed the deceased to inform her siblings that she had been admitted to hospital but the deceased did not do so. The deceased told her she had communicated with the bank that she needed a lawyer.
    
13. In re-examination DW1 said the deceased told her to care for her. She was a close relative of the deceased. She did not attend the funeral because she received a text message from the Second Plaintiff not to attend the funeral. The deceased gave her ATM card to her to take out money to buy dinner and to give money to the Defendant’s mother. The deceased informed her of the PIN number.
    
14. The next witness was Ms Monifa Manueli (DW2). She is a paralegal with Shekinah Law, who were instructed in 2014 by the deceased to draft her will. They arrived at SPH and the nurses took them to the deceased who signed the instructions sheet. The lawyer was Ms Nayacalevu. The deceased gave all the itemized details.
    
15. They drafted the will and returned to SPH the same afternoon. Both the security and the nurses allowed them in. After they finalized the will, the deceased signed it and the two of them were witnesses. The deceased was fine and DW2 saw nothing wrong with her when she executed the will. The deceased made changes and she was well aware of what she was doing.
    
16. Under cross-examination, DW2 said the deceased was able to write on the instructions sheet. On the day of execution the deceased signed the will and folder to register it with the High Court. DW2 identified the deceased’s signature on the will.
    
17. The next witness was Ms Torika Nasilasila Waqairawai (DW3), the Defendant. She said she had worked together with the deceased in WBC since 1994 and were very close friends. The deceased asked her to get someone to look after her. The deceased was doing very well in DW3’s mother’s house. Her siblings never visited her. DW3 was not present when the instructions were taken nor when the will was executed.
    
18. Under cross examination DW3 said the deceased instructed her not to tell her siblings she was admitted to hospital. DW3 was never informed when the lawyers came to get the deceased’s instructions. DW3 never met and does not know the Shekinah Law lawyers.
    
19. With that the Defendant closed her case and Counsel made their oral submissions the following day.
20. Plaintiffs’ Counsel submitted that there were 2 issues here. Submitting on unsoundness of mind, he said the deceased was suffering from cancer at the time of the execution of the will. The doctor (PW1) said the cancer had spread and the deceased was in pain and that clouded her memory. PW1 said he was unaware that the solicitors wanted to visit the deceased and no permission had been given to the solicitors to attend the patient and take her instructions.
    
21. Counsel then submitted on undue influence. He said DW1 confirmed she never told the Plaintiffs the whereabouts of the deceased nor of her being admitted to SPH. He said the deceased was not of sound mind and not in any condition to execute a will. The signatures on the instructions and on the will are different. He concluded by submitting that the Defendant influenced the deceased.
    
22. Counsel for the Defendant now submitted on undue influence, unsoundness of mind and the validity of the will. She said there was no evidence that the deceased was coerced, and there was no influence from the Defendant. She said the will was made freely and was the deceased’s own unfettered decision. The onus is on the Plaintiffs to prove the deceased was of unsound mind. The presumption remains that the will was lawfully made. Counsel asked for the claim to be dismissed and the caveat removed.
    
23. In his reply, Counsel for the Plaintiffs said the medical evidence was not unlawfully obtained. It was in the interests of justice for the court to determine the deceased was of sound mind. He said the doctor’s evidence should be admitted.
    
24. At the conclusion of arguments, I said I would take time for consideration. Having done so I now deliver my judgment.
    
25. The court has to decide whether there was undue influence on the deceased and whether she was of sound mind, at the time of execution of the will. If the answer to the first is in the negative and to the second is in the affirmative then it follows as the night the day the will is valid. That is the issue and in arriving at my decision. I shall not be distracted by the red herrings strewn across the path of the court.
    
26. The relevant legislation to consider is the Wills Act of Fiji, as amended by the Wills (Amendment) Act 2004 (Act). S.4 of the Act says every person not less than 18 years of age has capacity to make a will. S.5 says such a person may by a will executed as required by the Act, “dispose of all his property.” S.6 says a will is not valid unless it is in writing and executed as follows:

(a) It is signed by the testator.

(b) Such signature is made in the presence of at least 2 witnesses present at the same time; and

(c) The witnesses attest and subscribe the will in the presence of the testator but no form of attestation is necessary.

27. The only witness to the will who was called by the Defendant, was Ms Manueli (DW2). The Court found DW2’s testimony stood up to the cross-examination of Plaintiffs’ Counsel. The Court has to assess the probative value of her testimony. “Probative” is defined in the Oxford Dictionary as “having the quality or function of proving or demonstrating something; affording proof or evidence.” I therefore make a finding of fact that the evidence of DW2, is accepted as showing that the deceased knew what she was doing i.e. the deceased was compos mentis. I also find that she made the will freely and without any undue influence at all. My findings are based on my observation of the demeanor of the witnesses and the value that I as the trial judge place on their testimony.
    
28. I am fortified in my conclusion by the evidence of the Plaintiff’s own witness, the Doctor (PW1) who said under cross-examination that the deceased never lodged any complaint against her helper Livia nor against the Defendant; the deceased never complained against the drafting of the will. He said “it is possible she was in the right frame of mind when she made her will”. Suffice it to say to my mind the doctor’s testimony established on the civil standard of proof, that the deceased was of sound mind and free from any undue influence when she executed her last will.
    
29. In the result I dismiss the Plaintiffs’ action against the Defendant with costs summarily assessed at $3,000 to be paid by both Plaintiffs to the Defendant.
    
30. I also order that the caveat No 20 of 2014 lodged by Sokoveti Cakau be removed forthwith.
    

Delivered at Suva this 18^th day of July 2018.

...............................

David Alfred

JUDGE

High Court of Fiji