Steiner v Steiner [2015] FJHC 987; HPP07.2013 (27 November 2015)

IN THE HIGH COURT OF FIJI AT LABASA
PROBATE JURISDICTION

CIVIL ACTION NO: HPP 07 of 2013

BETWEEN:

ERNIE STEINER
Plaintiff

AND :

JACOB JOHN STEINER JNR
Defendant

COUNSEL : Mr. M. Sadiq the Plaintiff

Ms. P. Salele for the Defendant

Date of hearing : 14th September 2015

Date of Judgment : 27th November 2015

JUDGMENT

[1] The plaintiff instituted these proceedings seeking the following reliefs;

1. A pronouncement against the validity of the last will dated 26th December 1969.
2. An order for the revocation of the Probate No. 11062.
3. An order cancelling the transfer of Nukubati Island to the defendant.
4. An order on the defendant to give a full and proper account of all monies received as rent.
5. An order on the defendant to handover the certificate of title of Nukubati Island to the plaintiff forthwith.
   

[2] Jacob John Steiner SNR died on 7th January 1970. After the his death his son Philip Steiner produced the last will dated 26th December 1969 to the Court and obtained the Probate No. 11062 on 11th August 1970.

[3] The plaintiff came to court alleging that the last will dated 26th December 1969 was not an act and deed of Jacob John Steiner SNR but a forgery. In his statement of defence the defendant while denying the allegation that the last will of Jacob John Steiner SNR is a forgery put the plaintiff to strict proof of his allegation.

[4] At the hearing the plaintiff testified and called one Frank Bernard Shaw to testify on his behalf.

[5] The plaintiff evidence is that his father Jacob Steiner died on 07th January 1970 (Death certificate - P1) and his brother obtained the probate (P2). The witness tendered the will of his father marked as "P3". It is his evidence that his father was the registered proprietor of Nukubati Island (Certificate of title – P4) and after his death the plaintiff's brother obtained the probate and got the Island transferred in his name. After the death of the brother, his son the defendant obtained the probate and got the land transferred in his name (Probate – P5) and part of this island was leased out by the defendant and collecting rent. (Lease agreements – P6 & P7).

[6] The plaintiff who lives in England came back to Fiji in the year 2010 and found that the defendant was living on this island. When he came back in the year 2012 he met the other witness Frank Shaw who informed him that the last will in question was prepared by him at the request of Jacob and the plaintiff's father did not sign it.

[7] The evidence of the plaintiff is that he did not know whether his father left a last will and after his father's death he intended to apply for the probate. He also said that his father used to sign his name and did not use thumb print.

[8] The evidence of Frank Bernard Shaw is that he knew both Jacob Steiner and Phillip Steiner, and Phillip Steiner is his brother-in-law. In 1969 when he was working in the Fiji Sugar Corporation Jacob Steiner died and Phillip Steiner came and asked for help. The witness then prepared the last will in question, backdated it and obtained the thumb print of a person working with him in the office. When the impugned last will was shown to him in the course of his evidence he admitted that it was prepared by him. In cross-examination the learned counsel for the defendant questioned him at length but he maintained the position that it was he who prepared the last will in question.

[9] The defendant in evidence in chief stated that Jacob Steiner SNR was sick before his death and died in the hospital. It is his evidence that he does not agree with the evidence that the last will in question is a forgery and he witnessed the last will but when he was questioned by the learned counsel for the plaintiff whether he was present when it was signed the witness answered in the negative. In evidence in chief he admitted that he subscribed his signature to the last will as a witness and when he was questioned as to the place where he signed the will his answer was that he could not remember and at that time he was very young.

[10] The defendant called his wife's brother-in-law to testify but he was unable to say anything regarding the execution of the last will in question. He stated that he did not know about any last will.

[11] On a careful consideration of the totality of evidence adduced by the parties the Court has no reason to disbelieve the witness Frank Bernard Shaw, nor has the defendant been able to adduce any evidence to the contrary. Therefore, the Court holds that the last will in question is not an act and deed of Jacob John Steiner SNR.

[12] It was also the position of the plaintiff that in any event the last will in question has not been executed as required by the provisions of section 6 of the Wills Act [Cap 59].

[13] Section 6 of the Wills Act reads as follows;

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 or by some person in his presence and by his direction 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 or acknowledged 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.

[14] Part V of the Wills Act refers to privileged wills which has no application to the will in question.

[15] When the defendant was questioned by his own lawyer whether he knew anything about the allegation that the thumbprint found on the last will in question belonged to an Indian man working at Fiji Sugar Corporation he said that he did not know. If he signed the last will in the presence of the testator and the other witness he should know who signed the will. When questioned by the learned counsel for the plaintiff, the defendant said that he was not present when the will was signed. The will in question in my view is not a will executed in compliance with the provisions of section 6 of the Wills Act.

[16] Since the will in question has no force or avail in law the transfer of Nukubati Island in the name of the defendant does not have the effect of conferring the title to the said island on the defendant.

[17] For the reasons aforesaid I make the following orders.

ORDERS.

1. The last will dated 26th December 1969 is not a document valid in law.
2. The Probate No. 11062 is accordingly, revoked.
3. The transfer of Nukubati Island in the name of the defendant is cancelled.
4. The defendant shall give a full and proper account of all monies received as rent to the plaintiff.
5. The defendant shall handover the certificate of title of Nukubati Island to the plaintiff forthwith.
6. The defendant shall pay the plaintiff $ 3000 as costs (summarily assessed) of this action.
   

Lyone Seneviratne
JUDGE