IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 296 of 2003L

BETWEEN:

DHARMA WATI
Plaintiff

AND:

SAT NARAYAN (Executor and Trustee)
1st Defendant

AND:

ASHOK NAIDU
2nd Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr S Maharaj (Plaintiff)
 Mr V Mishra and Mr R Kumar (1st Defendant)
 
Solicitors: Suresh Maharaj & Assocs (Plaintiff)
 Mishra Prakash & Assocs (1st Defendant)
 
Dates of Hearing: 23 September and 18 October 2011

Date of Judgment: 27 October 2011

INTRODUCTION

[1]	This judgment is on the interpretation of a will in respect of a certain testamentary disposition of the testator’s cane farm.

[2]	The action was heard before Justice Datt of this Court in November and December 2008. On 20 February 2009, the learned Judge delivered a judgment in which he held the testator’s last will to be invalid. That will, according to the plaintiff, was favourable to her so she appealed to the Fiji Court of Appeal which, on 17 September 2010, quashed Justice Datt’s orders and directed the first defendant, the executor and trustee of the testator’s estate, to file an application for this Court to interpret the subject clause in the testator’s last will. That application was filed on 12 April 2011. This is the Court’s interpretation of the clause after hearing counsel for the plaintiff and the first defendant on the dates noted above.

THE PARTIES

[3]	The testator was on one Lachmaiya, a sugar cane farmer of Nanuku in Rakiraki. On his death, by his will, one of his sons, the first defendant, Sat Narayan, became the sole executor and trustee of his estate. The plaintiff, Dharma Wati, was married to one of the testator’s other son, Appal Samy, who had died before the testator on 4 November 1998; she is therefore the daughter-in-law of the testator. The second defendant, Ashok Naidu, is the eldest son of Dharma Wati and Appal Samy; Ashok Naidu is therefore the testator’s grandson.

[4]	The original action by originating summons filed on 8 August 2003 was between Dharma Wati as plaintiff, Sat Narayan as sole executor and trustee of the estate of Lachmaiya and first defendant, Fiji Sugar Corporation as second defendant and Fiji Development Bank as third defendant. Ashok Naidu, the grandson, later became the fourth defendant by the time the action came to trial before Justice Datt. The Fiji Sugar Corporation and the Fiji Development Bank held certain cane proceeds and interests connected with the property in question and were joined as “nominal” defendants and took no part in the hearings in this Court or in the Fiji Court of Appeal.

THE BACKGROUND

[5]	Lachmaiya (the testator) made four wills, the first on 31 January 1995, the second on 8 January 1998, the third on 4 May 1999 and the fourth and last will on 16 June 1999. Lachmaiya owned a little over 12 acres of freehold sugar cane farm land which he had planned to subdivide and distribute to his family members although the plans still remain unregistered. He died on 15 February 2001. He had appointed his son, Sat Narayan, the first defendant, as the sole executor and trustee of his estate so on 22 June 2001, Sat Narayan was granted probate for his last will dated 16 June 1999.

[6]	The problem with the will was that the disposition of part of the testator’s farm in clause 3(i)(d) was ambiguous. It was in these terms:

3. I GIVE DEVISE AND BEQUEATH the following legacies:-

(i) My twelve (12) acres … upon my death to be divided as follows:

(a)	…

(b)	...

(c)	…

(d)	LOT 3 and LOT 3 “A” containing 1 acre 2 roods 35 perches and 1 acre 0 roods 6 perches and LOT 4 containing 3 acres together with dwelling house thereon situate as worked and cultivated by my grandson DHARMA WATI (father’s name Ram Sami) to her absolutely.

[7]	The ambiguity in that the clause (that part in italics and underlined) was that the “grandson” was in fact the second defendant (original fourth defendant), Ashok Naidu, and not Dharma Wati, who is Ashok Naidu’s mother and the testator’s daughter-in-law. It is not now in dispute that Ashok Naidu and his mother Dharma Wati were the only ones living on that portion of the farm at the time the testator made his will. Those were the findings made by the trial Judge and on the appeal.

[8]	Lachmaiya also directed in his last will that the trustee distribute cane proceeds to the beneficiaries in proportion to the tonnages of sugarcane harvested by them from their respective lots. This was because the whole farm was under one cane contract so all proceeds were paid into the one account. The plaintiff alleged that she demanded her share of the cane proceeds and proper accounts from the trustee for the 2001, 2002 and 2003 harvests but he refused. She then brought these proceedings pursuant to ss 4, 73 and 89 of the Trustee Act [Cap 65] basing her entitlements and rights as a beneficiary under clause 3(i)(d) of the will dated 16 June 1999, which clause had the ambiguity referred to above. She claimed that she was the intended beneficiary and not her son Ashok Naidu (the testator’s grandson).

[9]	The trustee disputed the allegation that he had refused to pay cane proceeds or provide accounts to the plaintiff. Since the filing of the plaintiff’s originating summons, several orders for payment of cane proceeds and provision of accounts by the trustee have been made, but the dispute largely remained unresolved until the trustee filed a summons on 29 April 2008 for this Court to interpret clause 3(i)(d) of the will pursuant to O 85 of the High Court Rules 1988 and ss 82 and 88 of the Trustee Act. That was the application which Justice Datt heard and delivered his judgment on 20 February 2009. His Lordship held that the testator’s fourth and last will of 16 June 1999 was invalid for want of execution under s 6 of the Wills Act. On appeal by the plaintiff, the Fiji Court of Appeal disagreed and remitted the matter back to this Court for interpretation of the clause in question in that will. The present application is therefore in exactly the same form as that filed on 29 April 2008.

INTERPRETATION OF THE CLAUSE

[10]	I must confess to having some difficulty in resolving the issue in this case. This is because the general principle is that the testator must be the one that decides how his or her estate is to be distributed. He or she must be the one that chooses his or her beneficiaries; he or she cannot delegate it to someone else. The principle was explained by Lord MacMillan LC in Chichester Diocesan Board of Finance v Simpson [1944] UKHL 2 (21 June 1944); [1944] AC 341 at 371 as follows:

The fundamental principle is that the testator must by the terms of his will himself dispose of the property with which the will proposes to deal. With one single exception, he cannot by his will direct executors or trustees to do the business for him. That exception arises when the testator is minded to make gifts for charitable purposes, and where he directs his executors or trustees, within such limitations as he chooses to lay down, to make the selection of charities to be benefited. This exception from the general principle that the testator has to decide in his will the specific destination of his property is allowed because of the special favour which the English law shows to charities, and the conception of what is charitable for such purposes has been elaborately worked out so that the courts are able to determine whether a particular gift is charitable or not.

[11]	The present case does not fall within the exception. The consequence is that the disposition becomes invalid for uncertainty and the subject property is distributed under the intestacy rules. This was explained by Kitto J in Tatham v Huxtable [1950] HCA 56; (1950) 81 CLR 639 (11 December 1950):

The words of Lord Halsbury in Grimond v. Grimond (1905) AC 124, at p 126 appear to me to be applicable to this case: - "In my opinion the testator here has not given a class from which he allowed his trustees to select individually, but he has left his directions so vague that it is in effect giving some one else power to make a will for him instead of making a will for himself, which I conceive to be the objection always entertained where the directions are so extremely vague that you cannot say what it is that the testator meant. In this case the testator has not made any will himself; he has allowed some one else to make a will for him after his death, and that the law will not allow". (at p657)

And more fully by Latham CJ:

3. The argument for the invalidity of the second part of par. (11) is founded upon such cases as Houston v. Burns (1918) AC 337 , where Lord Haldane said that a testator cannot leave it to another person to make a disposition of the beneficial interest of his estate unless he has passed the beneficial interest to that person to dispose of as his own: - "He may, indeed, provide that a special class of persons, or of institutions invested by law with the capacity of persons to hold property, are to take in such shares as a third person may determine, but that is only because he has disposed of the beneficial interest in favour of that class as his beneficiaries. There is, however, an apparent exception to the principle. The testator may indicate his intention that his estate is to go for charitable purposes" (1918) AC, at pp 342-343 . Lord Haldane repeated this opinion in Attorney-General v. National Provincial and Union Bank of England (1924) AC 262 , where he used the following words (1924) AC, at p 268 : - A testator "cannot leave it to some one else to make a will for him, nor can he leave it to his trustees to give it for purposes which are to be completely in their discretion, unless these purposes are so indicated as in some sense to confer on a class of beneficiary an interest". These words recognized that it is possible for a testator by his will to create a special power of appointment in a person who may or may not be given a beneficial interest in the estate. But a testator may also create a general power of appointment authorizing a disposition in favour of any person and not only of members of a specified class: see Jarman on Wills, 7th ed. (1930), vol. 1., p. 458, where, after a reference to Attorney-General v. National Provincial and Union Bank of England (1924) AC 262 , the learned authors say: - "But a general power of appointment may be given, for that is equivalent to property, and a power of distribution among charities may be given". Thus what was said in Houston v. Burns (1918) AC 337 and in the last-mentioned case should not be understood as denying the well-established law with respect to powers of appointment: see Re Hughes; Hughes v. Footner (1921) 2 Ch 208 , where an estate was given to an executor "upon trust for all my children and their issue in such shares and in such manner as I shall by codicil direct or appoint, or, failing any such direction or appointment by me, then in such shares as (the said executor) shall in his discretion think fit and proper". The testator did not make a codicil and it was held that the children and their issue living at the death of the testator were entitled to the estate subject to the power of selection given to the executor. Sargant J. said (1921) 2 Ch, at p 212 : - "The general law on the subject is well settled, and is that the power of testamentary disposition is essentially a personal one and cannot be exercised by a will merely purporting to delegate to another the distribution of the testator's estate and the ascertainment of the objects of his bounty. But there are some real or apparent exceptions to or qualifications of this general rule. One is that of the creation of a general power which the donee may exercise for his own benefit, for such a power is equivalent to property. Another is that of the creation of a power of distribution amongst charities. A third is that of the creation of a power of selection amongst individuals or a class of individuals who are pointed out as the beneficiaries: see Houston v. Burns (1918) AC, at pp 342-343 ". (at p647)

[12]	The facts in Tatham v Huxtable (supra) were that the testator gave part of his estate to certain named beneficiaries (under the first part of clause 11) and the residuary (under the second part of clause 11) in these terms:

"I hereby authorise and empower in law my executor the said Edgar Ernest Huxtable, to distribute any balance of my real and personal estate … to others not otherwise provided for who, in my opinion have rendered service meriting consideration by the testator" 

[13]	There was an obvious mistake in the underlined phrase. The High Court held that those words should be read: 

"in the opinion of my executor have rendered service meriting my consideration”

[14]	The question then arose as to whether such a disposition offended the general principle because the executor was given the power to choose the beneficiaries or class of beneficiaries. Mr Justice Kitto explained the difficulty as follows:

3. Evidence directed to proving that words appearing in a will were inserted therein by a mistake on the part of the draftsman or amanuensis is not receivable in a court of construction. A court exercising probate jurisdiction may in certain circumstances act upon such evidence by excluding the words erroneously inserted (though not by inserting the words erroneously omitted), in accordance with principles which are referred to in Perpetual Trustee Co. Ltd. v. Williamson (1929) 29 SR (NSW) 487; 46 WN 151 . But the relevance of such evidence in a probate court is in relation to the issue of the testator's knowledge and approval of the will as executed: Morrell v. Morrell (1882) 7 PD 68, at p 75 . In a court of construction the probate is conclusive of the testator's knowledge and approval of the will as thereby authenticated; and evidence of the kind referred to is accordingly inadmissible: In re Bywater; Bywater v. Clarke (1881) 18 Ch D 17, at p 22 . (at p651) 

4. The only sense in which it is true to say that a court of construction may correct mistakes in a will is that that court may give effect to inferences obtained from the will as a whole (with the assistance of evidence of surrounding circumstances if ambiguity in the will justifies resort to such evidence): cf. Bradshaw v. Bradshaw [1836] EngR 610; (1836) 2 Y & C Ex 72 (160 ER 316) , notwithstanding that to do so involves an alteration of the words used. (at p651)

5. In this case an inference appears to me plainly to arise from the language of the will itself that "my opinion" means "his opinion". It is, I think, a case in which "anybody who reads this will cannot, if he has his senses about him, doubt that some mistake must have happened; and that is a legitimate ground in construing an instrument, because that is a reason derived not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself": Langston v. Langston [1834] EngR 190; (1834) 2 Cl & F 194, at pp 240-241 [1834] EngR 190; (6 ER 1128, at p 1146) . It is well nigh inconceivable that a testator would intend to describe a class of possible beneficiaries by reference to his own unexpressed opinion and without indicating any date as at which the opinion should be held, or how or to whom it should be declared, or by what means it should be ascertained. In a clause which empowers a named person to distribute the residuary estate amongst a number of beneficiaries, some of whom are described by reference only to an opinion as to whether their services merit the testator's consideration, the inference is strong that the opinion intended is the opinion of the person who is to make the distribution. And when it is found that, although the testator has referred to himself in the first person everywhere else in the will, he calls himself "the testator" at the end of the sentence in which "in my opinion" occurs, the conclusion seems to me inevitable that there has been an unintended interchange of the first person and the third. (at p652)

6. The clause should therefore be construed, in my opinion, as authorising and empowering the executor to distribute the residuary estate to the beneficiaries named in the will or to others not provided for in the will who in the executor's opinion have rendered service meriting consideration by the testator. (at p652)

[15]	The consequence is, as explained by the learned Judge:

9. Thus, as I read the clause, the testator has committed to another the selection of his residuary beneficiaries within a limited field. But the limits of the field are not defined with certainty. What constitutes "service" within the meaning of the will it is impossible to say; and the standard by which the executor is to decide whether the service rendered by a particular person merits consideration by the testator is none other than the executor's own opinion, for the formation of which no guidance is provided by the will. It is necessary to decide whether a testator may validly commit in this manner the selection of his beneficiaries to the discretion of someone else. (at p653)

[16]	I am also guided by the following dicta by Chief Justice Latham in that case:

As was stated more than a century ago by Jarman in the first edition of his work on wills: - "It often happens, however, that the misuse of some word or phrase is so palpable on the face of the will, as that no difficulty occurs in pronouncing the testator to have employed an expression which does not accurately convey his meaning. But this is not enough: it must be apparent, not only that he has used the wrong word or phrase, but also what is the right one; and, if this be clear, the alteration of language is warranted by the established principles of construction." - quoted in Jarman on Wills, 7th ed. (1930), vol. 1, p. 574; and see Jarman on Wills, 7th ed. (1930), vol. 3, p. 2147

[17]	More recently the Privy Council in Sammut & Ors v Manzi & Ors (The Bahamas) [2008] UKPC 58 (04 December 2008) explained the approach as follows:

The approach to construction

4.	The starting point when construing any will is to attempt to deduce the intention of the testator by giving the words of the will the meaning that they naturally bear, having regard to the contents of the will as a whole. Sometimes it is legitimate to have regard to extrinsic evidence in order to show that words used had a special meaning to the testator, but it has not been suggested that this is such a case. 

5.	Extrinsic evidence of the testator's intention may also be admissible to resolve uncertainty or ambiguity. On 10 November 2004 Mr Manzi, the first respondent, wrote to Mr Jean Claude Sammut, one of the cousins, notifying him that he had a beneficial interest in "five percent (5%) of the residuary estate". Mr Holbech, for the appellants, submitted that this was admissible extrinsic evidence of the testator's intention. Their Lordships do not consider that any significance can be attached to the terms of that letter. There is nothing to suggest that they represented anything more than Mr Manzi's own understanding of the true construction of clause 6(ii).

6.	There were placed before their Lordships no less than 17 decided cases, some of which involved decisions on wording that bore some similarity with that used in the present case. Little assistance in construing a will is likely to be gained by consideration of how other judges have interpreted similar wording in other cases. Counsel rightly recognised that the starting point must be to look at the natural meaning of the wording of the will to be construed without reference to other decisions or to prima facie principles of construction. 

[18]	The present case is not one where the testator left the choice of beneficiary to his executor and trustee. The evidence given at the trial was that the typist made a mistake. Mr Justice Datt made the following observations in his judgment:

[36] … On 24 November 2008, Sashi Subramani gave evidence that the Executive officer gave her an old will and told her to type another will and explained how the amendments were to be made to the new will. She claimed that she prepared the will dated 16 June 1999 and made a mistake, by typing the words grandson who was cultivating the farm. It was surprising to note this witness' evidence when she claimed that she made a mistake almost 9 years from the date of typing the will. She did not receive instructions from the testator and yet she claimed that it was a mistake. In his evidence the Executive officer stated that he was not in his office on the day the will was witnessed by the two witnesses. Sashi Subramani stated that after she signed the will, she delivered the will to the Executive officer. I was unable to accept that she was telling the truth.

[19]	I am therefore permitted to look at the extrinsic evidence to ascertain who the testator intended to be the beneficiary or beneficiaries under clause 3(i)(d) of the will of 16 June 1999.

[20]	I take that evidence from the judgment of Mr Justice Datt for two reasons. Firstly, his Lordship had the advantage of hearing and observing the witnesses at the hearing. Secondly, those findings were not overturned on appeal. That evidence is as follows:

EVIDENCE OF SAT NARAYAN

[23] …

[24] In summary, he stated, that prior to 16 June 1999 he witnessed Ashok Naidu cultivating the farm. He stated that he did not see Dharma Wati the plaintiff cultivating the land either by herself or by labourers. He stated that Manoj Naidu (Ashok Naidu's younger brother) resided in Suva and was not cultivating the farm on or before 16 June 1999. He said that he was aware that Ashok Naidu was working in Lautoka, after 2004 and that he was in good terms with all the family members.

[25] His evidence was unshaken. I was impressed with his evidence, it appeared to me that he was telling the truth about the conversation he had with his late father about the will dated 16 June 1999. In paragraph 13 of his deposition sworn on 23 April 2008 he stated:

"When my father had signed his will in June 1999 he had come and advised me that he had changed the will and had removed the name of Manoj Naidu and that Ashok Naidu was the sole beneficiary. He did not say anything about making Dharma Wati a beneficiary".

[26] I considered his demeanour while he was giving evidence, he was a truthful witness, he answered all questions unhesitatingly, and he appeared to be frank and agreed that he was on talking terms with all the family members. I preferred to accept Sat Narayan's evidence, which was not only corroborated by Ashok Naidu's evidence, but also the gang Sirdar who was responsible for the harvesting (of) sugar cane in that district. I accepted his evidence that he witnessed Ashok Naidu cultivating the farm in 1999 just before the testator made his last will and testament. His evidence contradicted the evidence of Dharma Wati and Manoj Naidu.

[21]	These findings are corroborated by the dispositions in the series of wills made by the testator. The first of the wills bequeathed the subject part of the farm to the grandson Ashok Naidu alone. The second bequeathed the land to the younger grandson Manoj Naidu alone. The third bequeathed the land to both grandsons in equal shares. The fourth of course is where the mistake arose. That was the first time that Dharma Wati's name appeared in those wills.

[22]	I have no doubt that under these circumstances, the testator intended his grandson, Ashok Naidu, to be the beneficiary of this part of his farm. The last will is therefore to be amended in paragraph 3(i)(d) to read: "LOT 3 and LOT 3A … and LOT 4 … together with dwelling house thereon situated as worked and cultivated by my grandson ASHOK NAIDU to him absolutely".

[23]	The plaintiff also filed an application to strike out the first defendant's present application. Although that application was not heard it is clear that there is no basis for it and, in any event, this decision puts paid to it.

ORDERS

[24]	I therefore order that clause 3(i)(d) of the testator's will dated 16 June 1999 be amended to read: "LOT 3 and LOT 3A … and LOT 4 … together with dwelling house thereon situated as worked and cultivated by my grandson ASHOK NAIDU to him absolutely".

[25]	The plaintiff's application to strike out this application is dismissed.

[26]	I make no order as to costs.

Sosefo Inoke
Judge