Pillay v Pillay [2012] FJHC 1233; HPP21.1997(S) (25 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

ACTION NO. HPP 21 OF 1997(S)
(Also HBC 84 of 1999 (Ltka))

BETWEEN:

VELAYANDAN PILLAY
Plaintiff

AND:

PARMANAND PILLAY
Defendant

Mr R Prakash with Ms R Karan for the Plaintiff.
No appearance for the Defendant.

JUDGMENT

The Plaintiff commenced these proceedings by Writ issued from the Court on 8 July 1997. There was on the Writ an indorsement of the Plaintiff's claim in the following terms:

"The Plaintiff claims as the sole Executor and beneficiary named in the last will and testament dated 9 December 1994 of Subarmani Pillay (son of Gopal Pillay), late of Malomalo, Sigatoka, Fiji, deceased who died on 18 February 1996 at Yalava, Sigatoka, that the Court should pronounce for the said will and against a pretended will purporting to have been executed on 18 January 1996. The writ is issued against you because you have entered a caveat and appeared to a warning thereto claiming an interest as executor, trustee and beneficiary named in a pretended will of the deceased dated 18 January 1996."

After the Defendant had filed an acknowledgment of service the Plaintiff delivered a Statement of Claim on 15 August 1997. The Statement of Claim pleaded in a formal manner essentially the same facts as had been indorsed on the Writ.

The Defendant subsequently filed a Defence and Counterclaim that was followed by the filing of an Amended Defence and Counterclaim on 7 November 1997.

In the Amended Statement of Defence the Defendant pleads that the will dated 18 January 1996 (the later will) revoked any earlier will made by the deceased. The Defendant denied any knowledge of a will dated 9 December 1994 (the former will) having been made by the deceased.

The Defendant pleaded that he lodged the caveat and appeared to the warning thereto pursuant to his interest in the estate under the last will of the deceased dated 18 January 1996.

In his Counterclaim the Defendant claims an interest in the estate of the deceased pursuant to the will dated 18 January 1996. The earlier will dated 9 December 1994 is not the last will and testament of the deceased. The Defendant asked the Court to pronounce for the will dated 18 January 1996 and order that probate be granted to the Defendant.

The Plaintiff filed a Defence to the Counterclaim on 27 November 1997. The issues raised by that pleading will be addressed later in the judgment.

A Summons for Directions was filed on 1 July 1998 returnable in Suva on 22 July 1998. Presumably orders in terms were made on that day.

On 3 March 1999 Minutes of Pre-Trial Conference were filed in Suva. The agreed facts were:

"1. That the Plaintiff and the Defendant are both sons of Subarmani Pillay (son of Gopal Pillay) the deceased.

2. That the deceased died at the Defendant's residence at Yalava, Sigatoka on 18 February 1996.

3. That the deceased had by his will executed on 9 December 1994 appointed the Plaintiff the sole executor and beneficiary of his estate.

4. That the deceased had executed another will dated 18 January 1996 under which he appointed the Defendant the sole executor and beneficiary of his estate.

5. That the Plaintiff and the Defendant have each applied for Probate of the respective wills, but no probate has been granted as each has lodged a caveat against the application of the other."

The dispute between the parties was expressed in the Minutes as follows:

"The Plaintiff disputes the Defendant's claim that the will dated 18 January 1996 is the true last will of the deceased on the grounds pleaded in the Plaintiff's Defence to the Defendant's Counterclaim. Accordingly, the Plaintiff puts the Defendant to proof of the purported will in solemn form."

It is now necessary to examine the Plaintiff's Defence to the Defendant's Counterclaim. The Plaintiff challenges the will dated 18 January 1996 propounded by the Defendant on the grounds that (i) it was not duly executed in accordance with the provisions of the Wills Act Cap 59, (ii) the deceased did not give instructions for the will, (iii) the alleged will was not read to or by the deceased nor its contents explained to the deceased (iv) at the time the alleged will was purportedly executed the deceased was not of sound mind, memory and understanding, (v) the purported execution of the alleged will was procured by undue influence of the Defendant and other unknown persons and (vi) the execution of the alleged will was obtained by the fraud of the Defendant.

As a result, the issues in dispute raised by the pleadings may be summarised. The Plaintiff has claimed that he is the sole executor and beneficiary of the estate of the deceased under the former will. The Defendant has disputed that claim on the basis that the later will was the last will of the deceased. The Defendant does not dispute the validity of the former will. His Defence pleaded simply that it was not the last will and testament of the deceased since it was revoked by the later will. The deceased died on 18 February 1996. The will propounded by the Defendant was dated just one month before the testator died.

If the Court pronounces for the will propounded by the Defendant then it will be the last will and testament of the testator thereby revoking all previous wills. On the other hand if the Court pronounces against the will propounded by the Defendant, then the question arises whether the will dated 9 December 1994 should be granted probate.

It is clear that the two wills are incapable of standing together. Agreed facts 3 and 4 in the Minutes of the Pre-trial Conference make that abundantly clear.

The principal component of the estate of the testator is seven acres of leased State land being lease No.6339 at Malomalo near Sigatoka. It is a sugar cane farm with some vegetable farming. On the land is constructed a farm house occupied by the Plaintiff. It is a three room house with electricity connected but no running water. The estimated value of the estate ranged from $14,000 to $23,000.

The Plaintiff has resided in the house for forty years. The testator lived in his house until late in 1995 when the Plaintiff took him to the home of one of the testator's four daughters at Naroro in Sigatoka. The Defendant at the time of the trial was a retired head teacher. In 1996 the Defendant was posted to Yalava Primary School in Sigatoka and occupied quarters near Cuvu.

The effect of the later will was (1) to revoke the will dated 9 December 1994, (2) to appoint the Defendant the sole executor of the will and (3) to devise to the Defendant absolutely all real and personal property belonging to the testator at the time of his death.

On 4 April 1996 the legal practitioners acting for the Defendant lodged a caveat dated 3 April 1996. A caveat dated 10 June 1996 was filed on 19 June on behalf of the Plaintiff. Both caveats sought to restrain any grant of probate or sealing thereof without notice to the caveators. Probate records indicate that the Plaintiff applied for a grant of probate on 7 May 1996 and the Defendant applied for his grant of probate on 31 May 1996.

As noted earlier the Plaintiff filed a warning to caveator as a result of which the Defendant entered an appearance to the warning on 26 June 1996. It would appear that the Defendant did not, however, file a warning to the Plaintiff's caveat.

As a result the position of the parties was that the Plaintiff's interest in the deceased's estate under the former will was prejudiced by the testamentary document being the later will. The executor (in this case the Defendant) of the later will was compelled to propound that will by calling evidence of attestation: Belbin –v- Skeates 164 ER 669. In my judgment, the Defence filed by the Defendant did not require the Plaintiff to propound the former will. The claim in the Defence went no further than to allege that the former will was not the last will of the testator due to the existence of the later will which, amongst other things, purported to revoke "all my former wills and testamentary dispositions." The issue in these proceedings is the validity of the later will. In re Lavinia Musgrove, Davis v Mayhew [1972] P 264 Lord Hanworth MR said at page 276:

"The onus of proving a will lies upon the party propounding it and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator."

When the action was called on for hearing on 8 February 2012 Counsel for the Defendant indicated that the Defendant had not provided instructions to defend the claim. An application under Order 67 rule 6 was filed together with an affidavit in support. Upon being satisfied that the application and the affidavit had been served on the Defendant and there being no appearance by the Defendant on 10 February 2012 I ordered that Messrs Patel and Sharma be granted leave to withdraw and that they ceased to act for the Defendant.

As a result the trial proceeded in the absence of the Defendant. The Plaintiff called five witnesses to give evidence. The evidence established the following findings of fact. The will dated 18 January 1996 was executed by the testator by thumb print. The execution of the will was witnessed by Vinod Kumar who was at the time executive officer at the Sugar Cane Growers Council's Sigatoka District office. The second witness was Veniana Rakuita who was employed at the time as a clerk/typist at the same office. Even if the Defendant had appeared to propound the later will, he would not have been able to call the witness Kumar who migrated some time after 1996.

However the Plaintiff did call the second witness to the later will to give evidence. No doubt Veniana Rakuita was on the list of witnesses in order to establish in part the allegations raised by the Plaintiff in his Defence to the Defendant's Counterclaim. Some of those allegations were matters upon which the Plaintiff carried the onus of proof.

Ms Rakuita gave evidence that she had typed both the 1994 and 1996 wills at the request of Mr Vinod Kumar. In respect of the 1996 will she stated that she had been given instructions in the form of document handed to her by Mr Kumar. The document has the heading "Growers Service Request." She stated that Mr Kumar completed the form on the basis of verbal instructions given to him by the Defendant in the Sigatoka District Office of the Sugar Cane Growers Council. The testator was not present in the office when the Defendant gave the instructions to Mr Kumar. The testator did not come into the office at all on that day being 18 January 1996. The Growers Service Request form that had been completed by Mr Vinod Kumar was admitted into evidence as exhibit 10.

After she had typed the will Ms Rakuita gave the document to Mr Kumar to read who in turn showed the document to the Defendant. Ms Rakuita told the Court that no corrections were needed. It was in the same form as the will dated 18 January 1996 that was admitted into evidence as exhibit 8.

After the Defendant had read the will, Ms Rakuita, Mr Kumar and the Defendant left the office together and walked to a motor car. The testator was sitting in the front seat of the car which had been parked outside the office. Ms Rakuita told the Court that the testator looked sick to her. She said she formed this opinion from the way he was sitting in a slumped position. Although he did not say anything, he appeared to her to be awake. She also said that although he did not speak to anybody that day, he probably recognised her and Mr Kumar because he used to come to the office.

Ms Rakuita then told the Court that Mr Kumar showed the will to the testator and spoke to him in Hindi. Ms Rakuita did not understand what Mr Kumar had said to the testator. She said that Mr Kumar spent about five minutes talking to the testator. She assumed he was explaining the will.

Ms Rakuita told the Court that Mr Kumar held the testator's hand and placed a thumb print on the will. While this was happening the Defendant stood next to Mr Kumar but did not speak. After the thumb print had been placed on the will the same three persons returned to the office with the will. Ms Rakuita and Mr Kumar then signed the will in the office. The original will was given to the Defendant and the copy was retained by Mr Kumar. It was Mr Kumar who had asked Ms Rakuita to witness the will.

The first issue to be determined is whether the will dated 18 January 1996 was executed in accordance with the formal requirements of the Wills Act Cap 59. Section 6 of the Wills Act as it applied in 1996 stated:

"Subject to the provisions of Part V, a will is not valid unless it is in writing and executed in the following manner:

(a) it is signed by the testator _ _ _ in such place on the document as to be apparent on the face of the will that the testator intended by such signature to give effect to the writing as his will;

(b) such signature is made by the testator in the presence of at least two 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."

It is quite clear from the evidence of Ms Rakuita that the will was not executed in compliance with the provisions of the Wills act. The two witnesses did not attest the will in the presence of the testator. They signed the will in the office after the testator had his thumb print placed on the document whilst seated in the front seat of the parked motor car.

Further the onus of proving that the testator understood the terms of the will rested upon the Defendant. For the will to be valid the evidence must establish that the testator knew and approved its contents: Muni Deo Bidesi and Others –v- Public Trustee of Fiji [1975] 21 FLR 65. The non-appearance at the trial and the consequent failure on the part of the Defendant to adduce evidence to that effect was not fatal as a result of the evidence given by Ms Rakuita. It is always the task of the Court to do all that it can to see that no fraud or injustice is perpetuated. In my judgment, the evidence of the attesting witness called by the party challenging, rather than propounding, the will, was admissible to determine whether the later will was valid.

Although proof of instructions may be dispensed with, it will always be necessary to prove that the testator completely understood, adopted and sanctioned the disposition that was proposed in the will: Muni Deo Bidesi –v- Public Trustee (supra).

The instructions for the later will were conveyed to Mr Kumar and Ms Rakuita by the Defendant. Under those circumstances did the evidence establish that the testator completely understood, adopted and sanctioned the disposition to the Defendant.

Evidence concerning the state of the testator's health was given by the Plaintiff, one of the Plaintiff's sisters and of course Ms Rakuita. Their evidence was to the effect that the testator had suffered from diabetes and was very ill by the end of 1995. He had been moved closer to the Sigatoka Hospital. The Certificate of Death stated that the cause of death was "Renal failure 2 UTI chronic polycystic kidney disease malnutrition."

It must also be noted that the later will did contain an attestation clause that the will was read to the testator in the Hindustani language although the will was written in English. However, the only evidence on his point came from Ms Rakuita. She stated that she observed Mr Kumar speaking in Hindustani to the testator. Ms Rakuita did not give any evidence that the testator adopted or accepted whatever it was that Mr Kumar had said. Her evidence was that Mr Kumar took the testator's hand and he Mr Kumar placed the testator's thumb print on the will.

In view of this evidence I am not satisfied on balance that the testator had the necessary capacity to understand and adopt the disposition proposed by the later will.

Having given the instructions for the later will to Mr Kumar and Ms Rakuita and being the sole beneficiary under that will there was at once a suspicion that the Defendant was required to remove. In my judgment, in this case the suspicion was one that would be difficult to remove: Wintle –v- Nye [1959] 1 All ER 552. The suspicion is that the later will did not express the true mind of the testator.

Another matter which operates against the later will is sometimes referred to as the righteousness of the transaction. The evidence of the Plaintiff was that he had lived with the testator and looked after him in the house built on the leased land for most of the forty years prior to the testator being moved to the house of one of his daughters. This was only done because it was closer to the Sigatoka hospital. There was absolutely no evidence that would lead to the conclusion that the testator had changed his mind and decided to revoke his earlier will in favour of the Plaintiff and to make a fresh will in favour of the Defendant.

On the question of undue influence and fraud, the burden of proof rests upon the party making the allegation. The Court of Appeal in Rajendra Dutt Maharaj and Another –v- Harry Ram Lochan [1979] 25 FLR 156 considered undue influence to mean coercion. Undue influence cannot be presumed from the surrounding circumstances. The allegation will be established if the evidence shows that the will of the potential "testator is coerced into doing that which he does not desire to do" at page 160). It is not sufficient for the evidence to show that the circumstances attending the execution of the will are consistent with its having been procured by undue influence. The evidence must establish that the circumstances of execution are inconsistent with any other conclusion. (Maharaj –v- Lochan supra at p.160).

In my judgment the circumstances surrounding the execution of the later will do not lead to the inescapable conclusion that the testator's signature was coerced or procured by undue influence. However, as indicated earlier in this judgment I am satisfied that those circumstances were sufficient to establish lack of testamentary capacity. I am not satisfied on the evidence given by one of the attesting witnesses that the testator understood that he was leaving his property to the Defendant. I am not satisfied that, just one month before his death and obviously very sick, he sufficiently understood and recollected the extent of his property. Finally I am not satisfied that the testator's mind and will were necessarily at one with the act of having his thumb print placed on the later will.

Although fraud was pleaded by the Plaintiff in his Defence to the Defendant's counterclaim, I am not satisfied that the evidence goes so far as to establish this ground for pronouncing against the later will. A lack of testamentary capacity, a failure on the part of the testator to understand what he was doing and non compliance with the Wills Act are not sufficient to constitute fraud, however that term may be defined in the context of probate proceedings. Nevertheless they are all grounds for pronouncing against the later will.

As a result I find that the will dated 18 January 1996 was not a valid will and was consequently not the last will and testament of the deceased. I award judgment to the Plaintiff and order that the Plaintiff be granted probate in common form of the will dated 9 December 1994 (as its validity was not otherwise challenged by the Defendant). If it is necessary I order that the caveat lodged by the Defendant be removed. The Defendant is ordered to pay to the Plaintiff costs of the proceedings which are fixed summarily in the sum of $1800.00.

The orders of the Court are:

1. Judgment for the Plaintiff.

2. Probate be granted to the Plaintiff as executor of the will dated 9 December 1994 and any caveat preventing the grant be removed.

3. The Defendant is ordered to pay costs of $1800.00 to the Plaintiff within 28 days.

W D Calanchini
Judge

25 July 2012
At Suva