Bidesi v Public Trustee of Fiji [1975] FJLawRp 13; [1975] 21FLR 65 (25 July 1975)

[1975] 21 FLR 65

IN THE COURT OF APPEAL OF FIJI

MUNI DEO BIDESI AND OTHERS

v

PUBLIC TRUSTEE OF FIJI

[COURT OF APPEAL, 1975 (Gould V.P., Marsack J.A., McMullin J.A.),
10^th, 11^th, 14^th, 15^th, 25^th July]

Civil Jurisdiction

Probate and administration – onus of proof on party propounding will that testator knew and approved its contents.

Probate and administration – person who prepares will and also takes a benefit under same – suspicion created to be removed by person propounding will - righteousness of the transaction.

Practice and procedure – taking evidence outside jurisdiction – Rules of Supreme Court 1934 O.37 rs. 5, 6, 6A, 6B, 6C, O.38 rs. 9(1) (2) (3) – Rules of Supreme Court 1968 O.39 rs. 1, 2.

Practice and procedure – order for trial of certain issues before others – circumstances in which such an order should be made – Rules of the Supreme Court 1968 O.33 r.4.

The original action in the Supreme Court lasted 25 days, at the conclusion of which the judge pronounced in solemn form of law in favour of a will made by the appellants' father.

On appeal against this finding:

1. The burden of proof was upon the respondent to establish that the testator knew and approved the contents of the will when he executed it, and there was ample evidence to establish this fact.

2. The executor appointed under the will was not also named as a beneficiary, and therefore his position could be distinguished from that of the executor appointed in Wintle v. Nye and Tyrrell v. Fainton; nor were there any matters which raised the righteousness of the transaction or impropriety on the part of the executor who prepared the will.

3. The appellants had waited for 7 years before putting the executor to proof of the will. The court, in such circumstances, would be somewhat astute to discover circumstances whereupon to found an inference that the formalities required for due execution of the will had been gone through.

4. An order that the defence of estoppel, acquiescence and laches be first tried as separate issues had been made at the trial. Such an order should have been made only in exceptional and extraordinary cases, or where the judge had serious reason to believe that the trial of the issue would put an end to the action.

5. The evidence of the executor who prepared the will had been taken on commission in Australia. His evidence was properly admitted although the appellants had raised a number of objections thereto.

The appellants subsequently appealed to the Privy Council, but this appeal was dismissed.

Cases referred to:

Wintle v. Nye [1959] 1 All E.R. 552; [1959] 1 W.L.R. 284.

Tyrrell v. Fainton [1893] UKLawRpPro 56; [1894] P. 151.

Fulton v. Andrew [1875] UKLawRpHL 3; [1875] L.R. 7 H.L. 448.

Piercy v. Young [1880] UKLawRpCh 32; 15 Ch. D. 475.

Fisher v. C.H.T. Ltd and ors [1965] 2 All E.R. 601; [1966] 1 All E.R. 88.

Chapman v. Chapman [1954] UKHL 1; [1954] 2 W.L.R. 723; [1954] 1 All E.R. 798.

Appeal against the judgment of the Supreme Court pronouncing in solemn form of law in favour of a will made by the appellant's father.

S. M. Koya for the appellants.
R. W. Mitchell for the respondent.

The following judgments were read:

McMULLIN J.A.: [25^th July 1975] -

This is an appeal from the judgment of Tuivaga J. delivered in the Supreme Court of Fiji on the 27^th November 1974, pronouncing in solemn form of law in favour of a will made by one Bidesi, son of Chuman.

The judgment was a lengthy one. It necessarily referred to all the issues which had been raised in the hearing of the action extending over some 25 days. The essential facts are set out in the judgment and need not be referred to in detail, but it will be convenient to trace the history of the litigation in order to provide the background to this appeal and to the submissions made upon it.

The testator, Bidesi, died on the 15th November 1957. His first wife had died in 1925. There were four sons of the first marriage. They are the appellants, M.D. Bidesi, S.M. Bidesi, C.P. Bidesi and S.P. Bidesi who throughout the proceedings in the Supreme Court and in the judgment under appeal have been referred to as M.D., S.M., C.P., and S.P., I propose to adopt that form of reference in this judgment. Some years after the death of his first wife, the testator married for a second time. There were ten children of the second marriage. They are the principal beneficiaries under the purported last will made on the 18th April 1957. The Public Trustee of Fiji was appointed executor of that will. He is the respondent on this appeal. The widow and other beneficiaries named in the will were originally named as defendants in the proceedings but an order striking them out of the proceedings was subsequently made. In any event, they appear to have taken no part in the hearing of the action. Appellants are not beneficiaries under the will.

After the death of the testator appellants expressed their disappointment and disgust at the terms of the will and C.P., at least, expressed a determination to contest it to the end. On the 21st December 1957, he lodged the first caveat against the grant of probate. Conferences between representative of respondent and appellants and correspondence between respondent and solicitors acting for some of the appellants followed. On the 14th May 1958, C.P. lodged a second caveat to replace the first which had expired with the affluxion of time. A conference was held between respondent and C.P. and his legal adviser at which a variation of the trusts of the will was discussed. It was at that time assumed that these trusts could be varied, on application being made to the Court. On the 29th October 1958 C.P. lodged a third caveat. Then, on the 7^th November 1958, respondent swore an affidavit in support of an application for the grant of probate in common form. On the 16^th March 1959 C.P., who had meantime changed his solicitor, agreed to discontinue the caveat proceedings and to a grant of probate to respondent. An order to that effect was made. On the 21^st April 1959 a grant of probate in common form was made. From that date on respondent has acted as executor of the will and trustee of testator's estate. Correspondence followed between respondent and appellants or their advisers relating to matters affecting testator's estate and, in particular, as to whether the trusts in the will could be varied. There were also conferences between the parties and negotiations culminating in agreement being reached to grant to some of the appellants a better security of tenure of premises owned by the estate but which were then occupied by them. The nature of these negotiations is more relevant to the defences of acquiescence and laches which were reviewed by the learned trial judge in his judgment.

On the 23^rd June 1966 appellants brought proceedings in the Supreme Court of Fiji for an order revoking the grant of probate made on 21^st April 1959 and for an order for the grant to appellants of letters of administration of the estate of the testator. Appellants stood to gain from the making of such orders because a revocation of the grant of probate on the grounds put forward by them would have meant that the testator would have died intestate and that they would have participated in the distribution of the estate. The grounds put forward by appellants for the revocation of the grant of probate were that the testator at the time of the making of the will neither knew or approved of its contents, the will not having been read over nor explained to him before he executed it, he not being able to read it himself and not being aware of its nature and effect. The claim was amended on the 4^th December 1972 but the substance of it remained unaltered. Respondent filed a defence on the 23^rd September 1966. In it he pleaded by paragraph (3) that the will was read over and explained to the testator and that he understood the full meaning, nature and effect and approved the contents before he signed the same as his true last will and testament; by paragraph (4) that appellants having recognized and dealt with respondent as executor and trustee named in the will were estopped from maintaining their action, by paragraph (5) the appellants acquiesced in the grant of probate to respondent and in the continued administration of the estate by him; and by paragraph (6) that appellants had been guilty of laches. Respondent by way of counter-claim sought a decree of probate in solemn form. By way of defence to the counter-claim appellants repeated that the testator did not have an understanding of the will and its effect, and alleged that it had not been duly executed according to the provisions of the Wills Act 1837.

The person who had taken instructions from the testator for the will was a Mr Harry Wheatley. He had known testator for many years and testator, a building contractor of some ability and experience, had at one time supervised the building of a block of flats for Mr Wheatley. Mr Wheatley had held a number of positions while he resided in Fiji. He had been employed in the Public Trustee Office. He was present when the will was executed although he did not himself witness it. He also had meetings with some of the appellants after the testator’s death. For these reasons it was apparent that Mr Wheatley would be an important, if not the principal, witness for the respondent. But Mr Wheatley had left Fiji in 1964 to live in Australia, and did not apparently enjoy good health. In August 1967 an application was made to the Supreme Court of Fiji for the taking of his evidence in Sydney, New South Wales. In two affidavits filed in support of the application, a Mr McFarlane, then solicitor to respondent, deposed that Mr Wheatley was living in Australia and that Mr Wheatley had told him that he had suffered a coronary occlusion. A medical certificate dated 24th August 1967 to that effect was exhibited. That certificate stated the opinion of Mr Wheatley's medical practitioner that Mr Wheatley should not travel to Fiji. On the 1st September 1967, an order was made, without any apparent opposition, for the taking of the evidence of Mr Wheatley in Sydney before a Mr Warburton a special examiner, and that the depositions so taken should be transmitted to the Supreme Court of Fiji within two months of receiving of the order, and that either party should be at liberty to read them in evidence. Mr Wheatley's deposition was in fact taken before Mr Warburton at Sydney on the 15th December 1967.

On the 3rd April 1973, respondent filed particulars of facts and conduct relied on in support of the defences of estoppel, acquiescence and laches.

The trial commenced on 4th December 1972. On that day a number of preliminary matters were raised. One is of particular importance. The point was taken by counsel for respondent that the defences of estoppel, acquiescence and laches should first be tried before the other issues in the action and that the evidence given on these questions should be treated as evidence given and tendered also upon the trial of the other issues in the action and counter-claim. It was at the same time accepted by counsel for respondent that the burden of propounding the will rested upon respondent as executor as did also the burden of establishing the substantive defences to which I have already referred. The learned Judge ruled that the questions of estoppel, acquiescence and laches should be tried first as separate issues because, if they were decided in a certain way, they would be decisive of the litigation. He made an order that those defences be tried before the other issues in the action and counter-claim and that the evidence given upon them be treated as evidence given in respect of those other issues. As it happens, the making of that order does not appear to have affected either the form or course of the trial, evidence as to the testator's understanding of English, his understanding of the terms of the will, and of the circumstances in which he gave his instructions for and executed it being given in substantially the same way as it would have been given had all the issues been tried together.

In a lengthy judgment in which he reviewed in detail the evidence given and issues raised, the learned Judge first dealt with the affirmative defences and then with the matter of the testator's knowledge and appreciation of the will. In the result he held that appellants were not estopped from prosecuting their claim. But he held that respondent had made out the defences of acquiescence and laches. He proceeded to consider the question of whether the testator knew and approved of the contents of the will. He found that he knew, understood and approved the contents of the will which he held to be valid and effectual in law and pronounced for it in solemn form.

Appellants' grounds of appeal were originally three in number but they were granted leave to add further grounds of appeal at the hearing. The grounds of appeal as ultimately considered by this Court were numbered (a) to (o). Some of these grounds overlap but broadly grounds (a) to (c), (e) to (j) and (n) relate to the making of the will, and testator's knowledge and understanding of it; grounds (k) and (l) relate to the defences of acquiescence and laches; and ground (d) is common to both matters. Ground (o) relates to costs which were the subject of a separate judgment delivered on the 15th April 1957, costs having been reserved in the original judgment.

Grounds (a) and (m) may be considered together. They are:-

"(a) That the learned trial Judge erred in not holding that at the time of the execution of the will the testator neither knew nor approved of the contents thereof;

(m) That the learned trial Judge erred in law in his findings on the issue relating to the making of the alleged will raised by the appellants in their amended statement of claim."

These grounds raise an issue which in my view was fundamental to the claim and counter-claim. Appellants alleged in the amended statement of claim that the will was neither read over nor explained to the testator, he neither did nor could read it himself before it was executed, and he was not aware of its nature and effect.

As I have said, it was accepted that the onus of proving that the testator understood the terms of the will rested upon respondent and the learned trial Judge correctly directed himself in this regard. A considerable portion, but not all, of the evidence upon which respondent relied in proof of testator's understanding of the will is to be found in the evidence of Mr Wheatley taken on commission in Australia. Indeed it may be said that the learned Judge relied heavily on Mr Wheatley's evidence. Appellants in grounds (e), (f) and (g) contend that^-Mr Wheatley's deposition should not have been admitted at the trial, or if admitted, should not have been relied upon in the face of the other evidence. I will deal with the submissions made under those grounds later in this judgment and will, for the present, assume that the evidence of Mr Wheatley was rightly admitted. The law on this question is set out in Theobald on Wills, 13th Edition, p. 43:

"No will can be valid of which the testator does not know and approve the contents. A testator cannot, therefore, delegate his testamentary power to another person; that is to say, he cannot adopt and execute a will made for him without knowing its contents."

Williams & Mortimer, Executors, Administrators and Probate, p. 147 state the law to be as follows:-

"A party who puts forward a document as being the true last will of the deceased must establish that the testator knew and approved of its contents at the time when he executed it. The testator's knowledge and approval of the contents of the will are part of the burden of proof assumed by everyone who propounds a testamentary document."

and at 148:-

"It is not essential to prove that a will originated with the testator and, therefore, proof of instructions may be dispensed with provided that is proved that the testator completely understood, adopted and sanctioned the disposition proposed to him, and that the instrument itself embodied that disposition."

The evidence on this point is voluminous but it was all substantially reviewed by the Judge in the judgment under appeal. The point at issue between the parties arose from appellants' contention that the testator had a poor knowledge of spoken English and that he was quite unable to read English. Mr Marlow who had known testator since 1912 and who had employed him about that time said that testator's ability to speak English then was poor with the result that the two men spoke in lingua-franca. Later, and after testator left Mr Marlow's employment, the two men spoke, when they met, in a mixture of English and Hindi. But Mr Marlow said that he noticed that testator's knowledge of English was improving. Mr Marlow said that testator was an independent man who arose to become a supervising superintendent in the building industry being responsible to the managing director of the building company by which he was employed. He became very capable at reading building plans. Mr Tetzner, a surveyor, gave evidence. He had met testator about 1950. He said that testator's knowledge of English was not grammatical but that he could make himself understood clearly and that he understood Mr Tetzner. He said that in several conversations which he had with testator before the purchase of a particular piece of land, testator and he understood each other clearly. Another witness, Mr H.N. Murray, who had known testator for 20 years before his death, said that he conducted conversations with him in English. He said testator was competent to converse in English.

Evidence as to events surrounding the execution of the will was given by Mr Wheatley on commission. He had known testator since 1936. In the judgment there is a detailed review of Mr Wheatley's evidence. It will be sufficient to say that in it Mr Wheatley explained the circumstances in which testator gave him instructions for the will and the circumstances in which it was signed. Mr Wheatley said that testator had given him instructions for the will, that there were discussions between the testator and himself as to its terms and, in particular, as to the date of distribution of the estate. He said that he took a long-hand note of testator's wishes which he later converted into a draft. He said that the draft was later made into the final copy of the will which testator executed. He discussed with testator the use of an interpreter but testator told him that he did not want an interpreter because he wanted the will to be secret and he did not want any leakages as to its contents. Mr Wheatley said he took testator through the will slowly pausing at the end of each section of it to ascertain whether testator knew what it meant. He said that he explained to testator in plain English what the various phrases in the will meant and that testator told him that he understood it. He said that testator asked occasional questions and if there were some words which he did not understand, Mr Wheatley substituted another for it. After the will had been read and explained to testator, Mr Wheatley took him into the office of the Public Trustee, Mr Gregg. Two witnesses, Mrs Andrews and Mrs Behn, were called in. He said that either he or Mr Gregg read the will in English and at the end of it, testator said, "It is bahoot achha" meaning satisfactory. The will was then signed. There were other matters discussed between testator and Mr Wheatley including his relationship with his sons.

There was evidence from Mr Gregg and Mrs Andrews. Their recollection of events was not as good as Mr Wheatley's. This is not surprising in view of the lapse of time between the giving of the instructions and the giving of evidence. Moreover, Mr Wheatley whose relationships with testator were friendly and who was well known to him would have had much more reason for remembering the details of the surrounding circumstances than would Mr Gregg and Mrs Andrews to whom the occasion was one of business. Mrs Andrews said in evidence that she had typed testator's will although it was not normal for her to type wills in the office of the Public Trustee. She did this because she was asked to do it. She said she received the draft will from Mr Wheatley and typed it and gave it back to him. She remembered witnessing testator's will at the request of Mr Wheatley. There were other details which Mrs Andrews could not remember. Nor could she recollect the facts contained in a affidavit which she swore on the 8th April 1959 relating to the execution of the will. The will did not contain within the attestation clause a statement to the effect that the contents of it had been explained to testator in the Hindustani language and he appeared fully to understand the same before he executed it. Testator signed it in Hindi and it seems that when the will was submitted for a grant of probate in common form, the Registrar requisitioned for an affidavit of due execution because of the absence from the attestation clause of a certificate to this effect. It was Mrs Andrews who made the affidavit. In it she deposed that the will had been first read over and explained to the testator in the English language when he appeared perfectly to understand the meaning and effect thereof and made his signature in Hindi. She further deposed that she personally knew testator over a period of ten years or more and that she knew he spoke and understood the English language and that he fully understood the contents of the will.

Subsequent to the death of the testator, there were discussions between Mr Wheatley and appellants. C.P. gave evidence of this. He claimed that when, following the death of his father, the will had been read by Mr Wheatley to the members of the family at the firm's business premises in Waimanu Road, he questioned Mr Wheatley as to how the will had been made in that way. To this question he said Mr Wheatley replied, "I am very sorry, C.P., I cannot understand why your father has left you four out." He then said that Mr Wheatley had mentioned that he himself had been left out of the will. He said that the will had been made by the Public Trustee. He said that Mr Wheatley told him to leave the matter for the time being and he would see what could be done. He further said that he saw Mrs Andrews and asked whether she had explained or translated the will to testator and that she told him that nobody had read out the will. Subsequently, he claimed that he saw Mr Wheatley about the will and asked why the will had not been translated to his father who could not speak English and would not understand the contents of the will. To this Mr Wheatley allegedly replied that he sympathised with the four appellants but it was the Public Trustee who had made the will. There was evidence from appellants that their father had no knowledge of written English and only a poor knowledge of conversational English. It is unfortunate that when Mr Wheatley's evidence was taken in Sydney he was not cross-examined upon these matters which must have been as much in the forefront of the case for the appellants as they were in the forefront of their recollection at the time of the trial. The learned trial Judge commented on this fact in his judgment when he pointed out that the first time the alleged admissions by Mr Wheatley were made known to the Court was when C.P., S.P., and S.M. entered the witness box. He considered that the admissions attributed to Mr Wheatley were more like an afterthought on the part of the appellants in an attempt to bolster their case. He was satisfied that Wheatley did not make any of the admissions attributed to him by the three appellants concerning the draft of the will. Likewise, he was not convinced with the truth of C.P.'s assertion concerning the alleged conversation he had with Mrs Andrews.

Although in the normal course of events one would have expected that the will of testator who could not read English should first have been translated to him in his native tongue and that fact substantiated by the inclusion in the attestation clause of the will of a certificate to that effect, the absence of a translation and, accordingly, of such a certificate was satisfactorily explained in the present case by the testator's desire for secrecy and his concern that there should be no leakage of the contents of the will which might have occurred had the will been interpreted to him before he signed it. An interpretation would have necessitated the sharing of the knowledge of the will with another person whose respect for its secrecy may not have been as great as Mr Wheatley's. It is entirely consistent with this desire for secrecy that testator in the last clause in the will gave the reason for disinheriting appellants viz., that he had made adequate provision for them in his lifetime. Testator would not have wished that information to come to the knowledge of appellants. Mr Wheatley said that testator told him that he had had trouble with some of the appellants. He might have very well have been concerned that they would learn before his death of the fact that they would not benefit under the will and that they might importune and trouble him on that account.

Mr Koya criticised the will because, he said, the Public Trustee gained from its execution in that as executor he was then in a position to make charges for his administration of the estate. He also said that Mr Wheatley had something to gain from the execution of the will and the appointment of the Public Trustee as executor because on its execution he could claim to have brought to the office of respondent a large estate for his administration. In that way his personal position would have been advanced and the chances of his promotion enhanced. I do not think that there is any substance in this criticism. Respondent would have been in a position to make charges for his administration of the estate if appointed executor of the will whether appellants were made beneficiaries or not. His appointment as executor and his ability to make charges for his administration were in no way related to the distribution of the estate. Likewise, Mr Wheatley's position and promotion would not have been affected by the terms of the will. They were not enhanced by the exclusion of appellants as beneficiaries. In this connection, Mr Koya referred to Wintle v. Nye (1959) 1 All E.R. 552. That was the case of a solicitor who prepared a will for an old lady. He was the principal beneficiary under that will. The House of Lords stressed that where a person who has prepared a will takes a benefit under it, a suspicion is created which must be removed by the person propounding the will. Lord Simonds at page 557 said:

"It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed."

The position of Mr Wheatley in the present case is quite different from that of the solicitor in Wintle v. Nye. Mr Wheatley did not take any benefit under the will. He performed the service by reason of his friendship with testator and his employment by respondent. The case of Tyrell v. Fainton [1893] UKLawRpPro 56; (1894) P. 151 is also to be distinguished. In that case the draftsman of the will was the son of the major beneficiary under it. That, of course, raised a suspicion that the will did not express the true mind of the testator, especially since this will was made only two days after another will (made in quite innocent circumstances) left everything to the plaintiff. It cannot be said that suspicions of that kind exist here.

Then Mr Koya criticised the Judge's preference for the evidence of Mr Wheatley to that of C.P., in that Mr Wheatley had not been available for the Judge to observe when giving his evidence. While it is true that Mr Wheatley was not available at the hearing and that the Judge expressed a preference for Mr Wheatley whom he had not seen against C.P. whom he had seen, it is clear from what the learned Judge said in the judgment that he was not impressed by the evidence of C.P.

Mr Koya in support of this ground of appeal also referred to events following the death of testator. These events, he claimed, supported his contention that testator had not fully understood the will. He referred to C.P.'s claim that, when seen by C.P. soon after the death of testator, Mr Wheatley had said that he was unhappy with the will. This and related claims, Mr Koya said, were indicative of a state of uneasiness on the part of respondent over the circumstances in which the will was made. It seems to me that it was entirely a matter for the Judge to say whether appellants' views on this factual matter were acceptable. It is to be noted that Mr Wheatley was not cross-examined in Australia over the alleged conversations with C.P. On the evidence before the Judge was entitled to take account of this fact and to find that the conversations did not take place.

A further point made by Mr Koya in support of his general proposition that testator had not approved of the will was that testator was a religious man who has lived a life according to the tenets of his faith which required that provision should be made for all his children. Testator had, according to S.M., instructed Mr Wheatley on an earlier occasion (accepted by Mr Wheatley as being when he was in the employment of the Inland Revenue Department) to prepare a draft will in which S.M. was to be the executor and provision was to be made for the appellants. Mr Wheatley in fact prepared a draft which he handed to testator in the presence of S.M. Mr Wheatley said that testator told him that he would go through the draft with a friend but subsequently he said that the draft was not what he wanted. Although the will in issue is very different from the terms of the draft prepared by Mr Wheatley some years before, Mr Koya said that there was no evidence that testator had changed his mind in the meantime. This submission overlooks the fact that Mr Wheatley in his evidence said that testator had given certain reasons to him for disinheriting the appellants. Whether those reasons were valid and whatever the requirements of his faith it was apparent that, if Mr Wheatley's evidence was accepted, testator had directed his mind to the claims on his bounty and thought that his duty lay to his wife and the children of the second marriage.

Mr Koya asked this Court to consider the "righteousness of the transaction". Testator, he said, was close to Mr. Wheatley as a member of respondent's staff; the effect of the will was to tie up the estate for a long period of time; there was the absence of an interpreter; and there was the delay on the part of respondent in proving the will in solemn form. The "righteousness of the transaction" was referred to in Fulton v Andrew [1875] UKLawRpHL 3; (1875) L.R. 7 H.L. 448 by Lord Hatherley at 471. There, Lord Hatherley said:

"There is one rule which has always been laid down by the Court having to do with wills, and that is that a person who has been instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will was read over to the testator and that he was of sound mind and memory and capable of comprehending it. But there is a further onus on those who take for their own benefit, after being instrumental in preparing or obtaining a will. They have thrown on them the onus of showing the "righteousness of the transaction"."

In William and Mortimer on Executors, Administrators and Probate at pages 152-153 reference is made to matters which arouse the suspicion of the Court and matters which raise the "righteousness of the transaction". Mr Koya referred to circumstances surrounding the execution of the will which he said aroused suspicion. He criticized the Judge's finding that he was satisfied that the instructions given by testator to Mr Wheatley had been reflected accurately in the will in view of the fact that there was no independent evidence as to what those instructions were. It is true that the evidence of Mr Gregg was that it was customary for instructions as well as the draft will to be kept on the file. In this case it proved impossible to find the instructions for the draft will after the ^-death of testator. But, it is to be remembered, this was an unusual case. Testator wanted to preserve secrecy as to the contents of his will and that could be more effectively done by the retention of only the will itself. Regrettably Mr Wheatley was not cross-examined in Sydney about the absence of a file containing the instructions and the draft. It is true that the affidavit of documents filed by respondent was not filed until sometimes after Mr Wheatley's evidence was taken in Australia and no criticism can be made of counsel's failure to cross-examine Mr Wheatley on that account. While, however, proof that the executed will accurately reflects testator's instructions may be strengthened by the production of the instructions and of the draft, the absence of these documents is not fatal to the validity of the will. Mr Wheatley gave evidence which covered the period from the time when instructions were first given by testator to the time when the will was executed. There was ample evidence from him to enable the learned trial Judge to reach a finding that those instructions had been reflected accurately in the will. Had the absence of the file been known to appellants at the time of the taking of Mr Wheatley's evidence in Australia and had Mr Wheatley been cross-examined on the point he might well have explained the absence of the file as being based on the need to preserve secrecy.

On the question of the righteousness of the transaction Mr Koya also referred to the fact that the will in dispute was very different from the earlier one which testator had asked Mr Wheatley to draft. The Judge was of the view that whatever testator's original instructions concerning the disposition of his estate, he had clearly changed his mind by the time he saw Mr Wheatley and gave him instructions for the will in dispute. Mr Koya said that there was no evidence that after the instructions for the original will had been given (when S.M. was present) testator had changed his views. But there does not have to be specific evidence as to a change of mind. There may have been a number of reasons which led testator to exclude appellants in favour of the children of the second marriage. I think it is implicit in the submissions of appellants on this point that Mr Wheatley had deliberately prepared a will not in keeping with testator's instructions as a fraud on testator and appellants. Indeed, any other view is untenable. It is to be noted, however, that Mr Wheatley did not personally benefit from the will nor has any reason been advanced as to why he should have embarked upon such a fraud when he himself gained no benefit from it.

There were other matters referred to by Mr Koya in the course of his submissions on grounds (a) and (m) but these related to the Judge's selection of evidence and the weight to be attached to it. Having considered these matters in the light of passages in the evidence I am of the view that the learned Judge was entitled to make the findings which he did. I would hold that grounds (a) and (m) must fail.

Appellants then advanced grounds (b) and (n).

Ground (b) was:

"That the learned trial Judge erred in law in not making any decision on the issue raised by the appellants in reply namely that ...

"The said alleged will was duly executed according to the provisions of the Wills Act 1837.""

Ground (n) was:

"That the learned trial Judge erred in law in not directing his mind to the fact that the alleged will was executed in loose sheets and there was no evidence that they were bound together at the time of the execution and in not holding that therefore the requirements of the Wills Acts 1837 and 1852 were not complied with."

These points were taken before the trial Judge. They were raised in the pleadings by the appellants. They involve a consideration of section 9 of the Wills Act 1837 which was in force in Fiji at the date when the will in question was signed. Mr Koya contended that the will was not executed in accordance with this section in that-

(i) the pages of the will were separate sheets; and

(ii) no evidence was given as to when the initials were placed on the individual sheets.

An examination of the pages of the will reveals that each page other than the last, on which testator and witnesses subscribed their names, contained what would appear to be the initials of testator and the two attesting witnesses, as distinct from their full names. Mr Koya suggested that the several sheets which were said to comprise the will did not form part of a continuous document. When this point was made during the course of the trial, the learned Judge called for the Register of Books in which the originals of wills admitted to probate were bound together. The book was dismantled and the pages of the original will were exposed to view. Upon this being done it would appear that Mr Koya reiterated his submissions that there was no evidence that the sheets were bound together at the time of execution. There is also no evidence that the separate sheets of the will were not together when it was signed. At best for appellants, all that can be said is that there is no evidence that the sheets were together so as to form part of the continuous document. The history of the matter is relevant. C.P., who spearheaded appellants' opposition to the will and lodged three caveats, finally withdrew his opposition to the grant of probate and thereby allowed a grant of probate to be made in common form in 1959. An affidavit by Mrs Andrews was filed in support of the grant of probate. She deposed in that to the fact that the will was explained to testator before he signed it. Had she been asked to do so at that time she might very well have remembered the circumstances whether the sheets were held together at the time of execution. Had Mr Wheatley been cross-examined upon the point he too may have been able to throw some light upon the matter. But the point was not taken on behalf of appellants until the 3rd April 1973 during the course of the trial. I think that, there being no evidence to the contrary, respondent is able to rely on the maxim "omnia praesumuntur rite et solemniter esse acta". However, if this maxim has no application in the present circumstances then it seems to me that the Court should not be over-zealous to assume that some technicality has not been observed. In Williams on Executors and Administration 14^th Edition, Vol. 1, P. 81 the learned authors say:-

"Where a party who is thus entitled to call in the probate and put the executor to proof of the will chooses to let a long time elapse before he takes this step, he is not entitled to any indulgence at the hands of the court. He is entitled to have the law strictly administered and to nothing beyond it. In such circumstances the court (having regard to the infirmity of the witnesses' memory after the lapse of time) is, it would seem, somewhat astute to discover circumstances whereupon to found an inference that the formalities required for a due execution of the will have been gone through."

That passage has particular application here. After the lapse which the appellants allowed to occur between 1959, when probate in common form was granted, and 1966, when this action was commenced, this Court should not in the case of a will prepared in the office of a public official who gained nothing from its terms be too astute to entertain points of this kind on mere speculation and without a scintilla of evidence.

Ground (c) was:

"That the learned trial Judge erred in accepting the evidence of Mr Wheatley, Mr Gregg and Mrs Andrews."

I propose to deal with this ground, as did counsel, together with grounds (g), (h) and (i).

Ground (d) was:

"That the learned trial Judge erred in law in ordering a separate trial of the questions and issues raised by paragraphs 4, 5 and 6 of the defence and before the trial of other issues in the action and counter-claim and in ordering that the evidence given and tendered upon the trial of issues raised in paragraphs 4, 5 and 6 of the Defence aforesaid be treated as evidence given and tendered in respect of the other issues in the action and counter-claim (see pages 127-128 of the Record). Having so ordered the trial Judge erred in departing from the terms of the said Order."

In my review of the history of these proceedings I have referred to the order made by the Judge as to the trial of separate issues. The order was based on an application supported by an affidavit made by Mr Anderson on the 23rd November 1972, a matter of about ten days before the commencement of the trial. There was no opportunity to argue the application before the trial itself and so it was argued on the first day as a preliminary matter. The trial Judge made his ruling in favour of respondent on the second day. I have already referred to the terms of that ruling. Provision for the making of an order relating to the mode of trial and for the trial of one or more questions or issues before others is made in Order 33, Rule 4 (1967 White Book). Such a course can on occasions have beneficial effects in shortening litigation and a failure to avail himself of the procedure may sometimes result in a litigant facing an adverse order as to costs. An order for the trial of some issues before others should, however, only be made in "exceptional and extraordinary cases" or where the Judge has serious reason to believe that the trial of the issue will put an end to the action - per Jessel M.R. in Piercy v. Young [1880] UKLawRpCh 32; 15 Ch. D 475 at 480. With respect, I have considerable doubts as to whether such an order should have been made in the present case. Whatever was to be said of the defences of estoppel, acquiescence and laches, and whatever evidence might have been directed to them, it seems to me that in the forefront of this case there was the question of testator's understanding of the contents of the will. That was raised by appellants in the original pleadings when revocation of the grant of probate in common form was sought. Respondent raised it in his pleadings seeking a grant of probate in solemn form on which it was accepted that the burden of proof fell upon him. At it appears to me, the pith and substance of the action and counter-claim was testator's knowledge and approval of the contents of the will. While in some circumstances defences of estoppel, acquiescence and laches might themselves, collectively or individually, have been rocks upon which appellants' case could founder, an order for the trial of those issues before the issue of knowledge and approval of the will, does not seem to have been likely to accomplish any real purpose when order itself contemplated that the evidence given and tendered upon trial of the substantive defences was to be treated as evidence given and tendered in respect of the other issue. As it happened, however, the trial took substantially the same form as it would have taken had the order not been made. The parties adduced evidence on all the issues and counsel addressed the Court at length upon them all. In particular, the issue of testator's knowledge of the contents of the will was canvassed in the evidence and the submissions made upon it. Although he dealt first in his judgment with defences of estoppel, acquiescence and laches the learned trial Judge considered the other issue and reviewed the evidence upon it at considerable length. Indeed not much less than one-half of his long and careful judgment was so devoted to that issue. Mr Koya also complained that the order once made had not been adhered to during the trial. I recorded the final comment his submission as follows:-

"As far as I was concerned we just went along with the trial of all issues."

With respect, that comment fairly described the situation. The trial was so conducted by both parties that all the issues were at large and no criticism can be made of the judgment on that account. No party has been prejudiced by the terms of the order originally made or by any departure from it, once made. There is therefore no substance in this ground of appeal.

Ground (e) was:

"That the learned trial Judge erred in law in admitting in evidence depositions of Mr Harry Wheatley taken in Sydney, New South Wales on the 15th December 1967 the letter dated 8th June 1968 from M.E. Warburton to the Chief Registrar of the Supreme Court of Fiji and copy Probate mentioned therein (see pages 175-180 and pages 563-590 of the Record)."

The order for the taking of the evidence of Mr Wheatley and the appointment of Mr Warburton was made on the 1st September 1967. It provided that the depositions when taken should be transmitted to the Registrar of the Supreme Court of Fiji within two months of the sealing of the order or such further or other date as might be ordered, there to be filed in the proper office and either party to be at liberty to give them in evidence. There is no evidence as to when the order was sealed but Mr Koya said that this took place on 1st September 1967. Mr Wheatley's deposition was taken on the 19th of December 1967. On the 8th January 1968 Mr Warburton forwarded depositions to the Registrar. The depositions were certainly not received in period of two months stated in the order. Mr Koya submitted that the deposition of Mr Wheatley should not have been received in evidence for several reasons. These were:-

A. That the order for the taking of his evidence should never have been made in the first place because the jurisdiction to make such an order for the taking of evidence outside Fiji existed only if the country where it was to be taken permitted that course or there was a convention in existence.

When on the 1^st September 1967 an order was made for the taking of Mr Wheatley’s evidence the rules of Court in force in Fiji were those contained in the Annual Practice 1934. By the time the deposition was received in evidence at the trial the rules in force were those to be found in the 1967 White Book. Order 37, Rules 5, 6, 6A, 6B and 6C set out in the 1934 Annual Practice prescribed the procedure in force in 1967 for the taking of evidence on commission. Rule 5 gave the Court power to make an order in any case where it appeared necessary in the interests of justice for the examination upon oath before the Court or any Judge or any officer of the Court, or "any other person" at any place and empowered any party to give the deposition in evidence. The note to the 1934 Annual Practice indicates that there were three methods of obtaining evidence out of the jurisdiction namely-

(a) By appointment of a special examiner under Rule 5 or in the case of countries in which conventions had been made under Rule 6;

(b) by a Commission under Rule 6 (then practically obsolete);

(c) by Letters of Request under Rule 6A or, in the case of countries in which conventions had been made, under Rule 6B.

These rules were gathered together, consolidated and a more uniform practice established in Order 39 set out in the 1967 White Book. Order 39, Rule 1 provides:

(i) A court may, in any cause or matter where it appears necessary for the purpose of justice, make any order (in form No. 32 in Appendix (A)) for the examination on oath before a judge, or an officer or some other person" at any place, of any person.

Order 39, Rule 2 provides that where a person whose evidence is sought to be taken is out of the jurisdiction an application may be made:-

(a) for an order for the issue of a letter of request to the judicial authorities of the country where the witness is to take his evidence there, or

(b) if the government of that country allows the person to be examined before a person appointed by the Court for an order appointing a special examiner for the taking of the evidence.

In the present case a letter of request was not issued nor was there any evidence before the Court that the Commonwealth of Australia or the State of N. S. W. allowed a person in that country or State to be examined for the purposes of an action in another country.. Mr. Koya submitted that there was therefore no jurisdiction for the order to be made. There seem to me to be a number of points which can be made in answer to that submission.

First, the order was made under Order 37 (1934) which did not refer to the necessity for the proof of the convention or the existence of a law allowing the evidence to be taken in that country. Nor does there seem to be any requirement of that kind positively imposed by Order 39, Rule 2 (1967) White Book. The two modes referred to in that rule are not the only modes in which evidence can be taken. The use of the word "may" is clearly permissive and not mandatory. Order 39 Rule 2 does not limit the situations in which evidence can be taken. It merely amplifies the procedure.

Secondly, Mr Koya did not oppose the making of the order nor did he, although he took other points relating to the taking of the evidence, take this point before the trial Judge. Accepting, but without deciding, that Mr Koya's argument that consent does not confer jurisdiction, I do not think that even if the Commonwealth of Australia or State of N.S.W. expressly forbade the taking of evidence of a person resident there for use in the Courts of another country, the evidence taken would necessarily be inadmissible. A fortiori if, without forbidding it, the Commonwealth or State made no express provision for it.

Thirdly, it was never suggested on the making of the order or at the trial that the Commonwealth of Australia or State of N.S.W. did not permit the taking of the evidence. The indications are rather that it did. Mr McGarvie, senior counsel at the trial for respondent, was an Australian counsel and Mr Warburton and the two counsel appearing before him for the taking of the evidence were counsel admitted in New South Wales. It is not without significance that not one of them suggested that the making of the evidence was not permissible. Accordingly, I am not impressed by this submission.

B. That Order 38, Rule 9(2) had not been complied with in that respondent had not given reasonable notice of his intention to use the deposition in evidence.

This matter was raised by Mr Koya at the trial. The record does not show clearly when the notice was given of respondent's intention to use the evidence although it is recorded that Mr McGarvie told the trial Judge that the notice had been given a week before. The learned Judge said that counsel in opening the case for the respondent ( seven days before ) had said that respondent would rely on Mr Wheatley's deposition and that appellants could not have been under any illusion that respondent intended to rely on it. With respect I would agree. One has only to read the record to appreciate it that it must have been common ground between the parties long before the trial commenced that Mr Wheatley's evidence was to be tendered in evidence. However, if need be, I would invoke Order 2, Rule 1 ((1967) White Book) and treat any failure to give notice as being an irregularity arising from non-compliance with the Rules of such kind that it should not be allowed to nullify the proceedings. In this connection I note that Mr Koya is on record at the trial as saying that the failure to give reasonable notice was not fatal to the admission of the evidence.

C. That, based on the face of Fisher v. C.H.T. Ltd. and Others [1965] 2 All E.R. 601; [1965] 1 W.L.R. 1093, an office copy of the deposition should have been bespoken. In Fisher's case the wording of the order for the taking of evidence of a witness in U.S.A. provided that............ "an office copy or copies....may be read and given in evidence on a trial of this cause".

Edmund Davies J. at 602; 1095 said:

"I think that what is taken before an examiner does not per se become evidence in the case. The office copy must be bespoken by a party desiring to make use of it."

The order made in the present case was that "....the depositions when so taken....be filed in the proper office and that either party be at liberty to read and give such deposition in evidence at the trial of this action....". As counsel for the respondent submitted to the trial Judge at the hearing on tendering the original deposition there was no need to bespeak an office copy. The original was available. Fisher's case is distinguishable on the ground the order there was for the production of an office copy of the examination. In the present case the order was for the production of the actual depositions and it was this which senior counsel for the respondent sought leave to read at the trial.

D. That the original depositions were not signed, contrary to Order 38 Rule 9(3). That rule provides that a deposition purported to be signed by the person before whom it was taken shall be received in evidence without proof of the signature of that person. Although the actual deposition taken was not signed by Mr Warburton he wrote to the Registrar of the Supreme Court of Fiji on the 8^th of June 1968 enclosing the deposition. In my view the letter and the accompanying deposition can be treated as the one document and the signature of Mr Warburton on the letter amounts to the signing of the deposition by him. If need be I would, however, invoke Order 2, Rule 1 and regard the matter as an irregularity of no substance.

E. That there was no evidence to show that Mr Warburton was beyond the jurisdiction and unable from sickness or other infirmity to attend the trial. Such a state must be proved to the satisfaction of the Court as a prerequisite for the receipt in evidence of the deposition at the trial-Order 38, Rule 9(1). There was evidence from Mrs Andrews that in the week before she gave evidence she booked a telephone call to Sydney, Australia and following that booking spoke to Mr Wheatley with whom she had previously worked and whose voice she recognised on the phone. She enquired as to Mr Wheatley's health and as to whether he felt capable of attending the hearing in Fiji to give evidence. It is not necessary for the respondent to prove both that Mr Wheatley was beyond the jurisdiction and unable from sickness or other infirmity to attend the trial. It was sufficient that he proved one or other of these requirements. Clearly Mrs Andrews' telephone call to Mr Wheatley and the circumstances in which it was made are as much admissible in evidence in proof of the fact that Mr Wheatley was beyond the jurisdiction as if at that time she had seen him physically in Australia. It is unnecessary to decide whether Mrs Andrews' conversation with Mr Wheatley as to his state of health was admissible.

F. That the depositions were not filed within the period of two months provided by the Order. Clearly they were not filed within this period of time. It is to be noted that the order provided that the deposition had to be filed within two months or "such further or other date as may be ordered." It does not appear from that wording that time was of the essence of the order and it would have been open to the Court at any time on application being made to it to enlarge the time. I would treat respondent's application to tender Mr Wheatley's deposition at the trial as being an informal application to the trial Judge to enlarge the time and admit the evidence. I would regard the Judge as having informally made that order. Again, however, I would regard the matter as being a mere irregularity not going to the substance of the matter.

I turn now to ground (f). This was:

"That the learned trial Judge erred in admitting in evidence the contents of alleged telephone conversation between the Defendant's witness Mrs Christine Andrews and Mr Harry Wheatley during the week preceding Monday the 11th December 1972 and during the pendency of the trial of this action (see pages 166-167 of the Record)."

In view of what I have said under the previous ground it is unnecessary to say anything further on this ground.

Ground (g) was:

"That the learned trial Judge erred in accepting the written evidence of Mr Harry Wheatley in preference to the oral evidence given by the 2nd, 3rd and 4th Appellants on all matters which were in issue."

The submissions made by Mr Koya under this head relate to the preference expressed by the trial Judge for the evidence of Mr Wheatley over other evidence and to the weight which he attached to the evidence. It was entirely for the trial Judge to assess the evidence and to give it such weight as he thought. The Judge did not see Mr Wheatley as a witness although he saw appellants but he was still entitled to prefer Mr Wheatley's evidence to that of the appellants and to treat Mr Wheatley's deposition as a credible narrative. It is to be noted too, that Mr Wheatley gave evidence in 1967. Appellants did not give evidence until some years later.

Ground (h) was:

"That the learned trial Judge erred in accepting the evidence of Mr B.L. Gregg in preference to the evidence given by the 2nd, 3rd and 4th Appellants on all matters which were in issue."

The learned Judge heard Mr Gregg's evidence and was entitled to give it such weight as he chose. Mr Gregg did not have a detailed memory for events surrounding the execution of the will and on some points he did not support Mr Wheatley. That is not surprising after a long lapse of time and in view of the fact that Mr Gregg's interest in and knowledge of the testator's affairs had not been as close as that of Mr Wheatley.

Ground (i) was:

"That the learned trial Judge erred in accepting the evidence of Mrs Christine Andrews in preference to the evidence of the 2^nd, 3^rd and 4^th Appellants in all matters which were in issue."

Mr Koya said that Mrs Andrews was vague and was not to be relied on. She could not remember the contents of her previous affidavit. That affidavit, it is to be noted, had been sworn in 1959, just two years after the making of the will and at a time when events were relatively fresh in her memory. Although she was unable to remember at the time of the trial the matters referred to in her affidavit she did say that if they were recorded they would be true. The learned judge was entitled to take account of that fact particularly when the evidence of the appellants was not given until some thirteen years later.

It is convenient to refer at this stage to ground (c). This is as follows:

"That the learned trial Judge erred in accepting the evidence of Mr Wheatley, Mr Gregg and Mrs Andrews."

Enough has been said on grounds (g), (h) and (i) to dispose of this ground.

Ground (j) was:

"That the learned trial Judge erred in not taking into account fully or at all the effect of the loss of the official file held by the respondent as Public Trustee relating to the will in dispute and in particular as to the credibility of Mr S.M. Bidesi's evidence concerning the drawing up of a will for Bidesi testator by Mr Harry Wheatley wherein it was intended that Mr S.M. Bidesi be named the executor and in addition as to the credibility of Mrs Christine Andrews, Mr B.L. Gregg and Mr Harry Wheatley on matters in issue raised by the appellants."

In considering grounds (a) and (m) I have already commented on the loss of the official file. There is nothing in the judgment to suggest that the Judge did not give this matter its proper weight and he was entitled to have regard to the fact that although the official file was not available for production there were good reasons why neither the instructions nor the draft will had been kept.

Ground (k) was:

"That the learned trial Judge misdirected himself and erred in law in disallowing appellants contention that inasmuch as Messrs Cromptons, Solicitors, Suva, had already acted for the appellants S.M. Bidesi and C.P. Bidesi relating to some of the matters in dispute, Messrs Cromptons and their associate Mr Mitchell should not be permitted to act for the respondent at this trial and that the continuance of the trial with their instructing counsel (Mr McGarvie) would cause great injustice to the appellants. (See pages 121-122 of the Record)."

I do not think that this ground of appeal can be sustained. If there is any basis for Mr Koya's complaint either against Cromptons or Mitchell it seems to be a matter of domestic discipline though I am far from suggesting that there was any impropriety on the part either of Cromptons or Mr Mitchell.

Ground (l) was:

"That the learned trial Judge erred in law in his findings on the issues relating to acquiescence and laches raised by the respondent in his defence. The learned Judge in this connection misdirected himself to draw proper inferences from the circumstances leading to the giving of an undertaking in writing by the respondent to the 2^nd and 3^rd appellants on the 19^th February 1958 (see page 418 of the Record) and the conduct thereafter of the respondent."

In view of the judgment I have arrived at on what I perceive to be the more fundamental issue raised on this appeal I do not think it necessary to consider the defences of acquiescence or laches. To succeed on this appeal, appellants must show that the Judge was wrong in his judgment on testator's knowledge and approval of the will and on the defence of acquiescence and on the defence of laches. If they fail on any one of the grounds of appeal then it must be dismissed. Not only do I think that the Judge is not shown to be in error in his judgment on testator's knowledge and approval of the will but I think that there was an abundance of evidence available to support his findings. Indeed, it would have been difficult for him to take any other view.

In my opinion not one appellant's grounds can be sustained. Being of that view I would dismiss the appeal.

There was a further ground added during the hearing of the appeal. It is ground (o). Ground (o) provides:

"That the learned trial Judge having regard to all circumstances of the case erred in awarding costs against the appellants."

The record shows that Mr Koya objected on the 1st day of the trial to Mr Mitchell's appearance as one of respondent's counsel although the indications are that the main objection was to ensure that Mr Mitchell should say nothing about certain matters which had taken place between respondent and S.M., C.P. and S.P. at the time when Cromptons were acting for them. It would appear that in May 1969 Mr Mitchell commenced employment with Cromptons as a qualified clerk and continued his association with them either in that capacity or as a partner until the 31st December 1974. Since the 1st January 1975 he had been in practice on his own account. Cromptons took over the conduct of the action on behalf of respondent in September 1972 and remained on the record as solicitors for respondent until the 31st January 1975. On that date a notice of change of solicitors was filed in favour of Mr Mitchell. In 1959, 1960 and 1961 Cromptons on behalf of C.P. and S.M. acted in claims relating to the estate though it is not said that Mr Mitchell handled these matters personally. Their association did, however, relate to matters which might have a possible relevance to the defences of estoppel, acquiescence and laches which were prepared on behalf of respondent by Cromptons. It was Mr Mitchell who signed the particulars of these defences on which the respondent intend to rely. Mr Koya submitted that the trial Judge should not have allowed Mr Mitchell to appear. However, the Judge let him appear and said that if it became necessary Mr Koya could renew his objection to the particular evidence which he considered to be in breach of the confidential relationship of solicitor and client. He said that he would proceed on the basis that an objection could be raised to the evidence adduced and not to counsel. The point was not raised again during the trial. It was not suggested that in the conduct of the proceedings either counsel for the respondent made any use of information gained by Cromptons or by Mr Mitchell while Cromptons were acting for C.P. and S.M. In support of his objection Mr Koya referred to Halsbury's Laws of England, 3^rd Edition, Vol. 36 p. 95 para. 131. In my view, while this passage does define the obligations of solicitors as to the confidentiality of information received by them while acting for clients, it does not support Mr Koya's contention. It seems to me that if Mr Koya had any objection to make it was to the fact that Cromptons were on the record as solicitors and not to Mr Mitchell's appearance. This ground falls to be decided irrespective of our decision on the substantive aspects of this appeal. While recognising that costs generally follow the event Mr Koya submitted that the Judge ought not to have made an order for costs against appellants as the cause of litigation was respondent's failure to implement an undertaking to secure a change in the law of Fiji to overcome the decision in Chapman v Chapman [1934] 1 W.L.R. 723. I do not agree. Respondent could not himself effect a change in the law. There were other agencies who could better pursue such a course. Even if respondent had the ability to bring about the legislative change necessary, it is likely that appellants could at best, if the change had been effected, secure a variation in the trusts of the will and not their inclusion as beneficiaries under it. In short, any variation in the trusts of the will would have itself recognized the will as a valid testamentary document. The action finally instituted by appellants was an action which directly attacked the efficacy of that document as testator's last will. It was not an action to enable appellants to vary the trusts of the will by obtaining for them a greater security of tenure of lands which they occupied. The action failed. Had it been brought at an earlier stage, it is likely that appellants would have been ordered to pay respondent's costs in respect to it. By reason of the long delays respondent's difficulties of proving the will increased and the litigation was necessarily protracted. I think that the order made by the Judge as to costs was right.

Accordingly, for the reasons I have given, I am of the view that the appeal should be dismissed with costs and the order for costs made by the learned Judge sustained.

MARSACK J.A.

I have read the advantage of reading the very full and carefully reasoned judgment of Mr Justice McMullin with which I am in complete agreement. At the same time there is one short comment which I should like to make.

As I see it there has been, in the presentation of the case, some confusion as to the issues which required determination by the Court. This was an action brought by the appellants against the respondent for revocation of probate of the will of their father, which was granted in common form to the respondent as sole executor on the 21st April 1959. The respondent counter-claimed, asking that the Court grant to him probate in solemn form. The basis put forward by the appellants for their claim that probate of the will should be revoked was that the deceased at the time of the execution of the alleged will neither knew nor approved of its contents.

That, then, was the issue which the learned trial Judge had to decide. It had to be established to his satisfaction that all legal requirements of the making of a will had been complied with, including the formalities of execution and attestation; that the testator understood what was set out in the will, and that its provisions were strictly in accordance with his wishes.

It is true that a great deal of evidence was called with reference to this issue, and fully considered by the learned trial Judge in his judgment. But there was also much evidence as to the dissatisfaction of the appellants with the terms of the will under which they received no benefit; and also to the strenuous efforts made by the appellants to obtain a family settlement by which they would obtain some advantages in the disposition of the estate. To my mind these matters were irrelevant to the question which had to be decided by the Court, that is to say the validity of the will. Accordingly I have grave doubts whether the matters of laches and acquiescence, to which so much time was devoted during the trial, were not extraneous to the real subject of the dispute.

The learned trial Judge held, on the evidence which in my opinion was thoroughly adequate for the purpose, that the will in dispute was in all respects a valid will of which probate in solemn form should be granted to the executor, the Public Trustee. I do not think he was called upon to decide any other matters.

As I have said, I fully concur with the judgment of McMullin, J.A. and the order he proposes thereon.

GOULD V.P.

I have had the advantage of reading the very painstaking judgment of McMullin J.A. and am in full agreement with his reasoning and conclusions.

All members of the court being of the same opinion the appeal is dismissed with the orders as to costs proposed by McMullin J.A.

Appeal dismissed.