Ho v Ho [1998] FJSC 1; CBV0004U.1997S (1 March 1998)

Fiji Islands - Ho v Ho - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

AT SUVA

ON APPEAL FROM THE FIJI COURT OF APPEAL

CIVIL APPEAL NO. CBV 0004/97
(Fiji Court of Appeal Civil Appeal No. ABU0006/96)

:

VICTOR JANSON HO
Appellant

AND:

KENNETH MICHAEL JANSON HO
LEONG FAI LEING
Respondents

The Rt. Hon. Lord Cooke of Thorndon
The Hon. Sir Anthony Mason

Hearing: 10 March, 1998
Judg ......... March, 1998

Counsel: Mr. G.K. Downes, Mr. Mr. G.O. Blake, Mr. G. P. Lala for the Appellant
Mr. P. R. Graham Q.C., Mr. J.B. Gray, Mr. D. Jamnadas for the Respondents

JUDGMENT OF THE COURT

This appeal is brought against an order made by the Fiji Court of Appeal (Barker, Thompson and Dillon JJA) dismissing with costs an appeal brought by the appellant against a judgment delivered by Scott J. in the High Court pronouncing probate in solemn form of a will dated 11 December 1986 made by the Harry Janson Ho who died on 5 May 1988. The appellant is the younger son of the testator. The respondents (plaintiffs in the action) are the testator’s elder son and his widow.

In his appeal to this Court, the appellant challenges the judgment of the Court of Appeal on the grounds that it failed to identify errors of the primary judge in his treatment of the issues of knowledge and approval, testamentary capacity, undue influence on the part of the testator’s elder son and fraud by the elder son. As will appear subsequently, the principal ground of challenge relates to the issue of fraud.

History of the parties

The testator was aged 78 at the time of his death. Born in China, he came to Fiji in 1922; he had been a successful businessman in Suva for many years, conducting a night club and a music business through two family companies Golden Dragon Limited and Janson Ho Limited.

From 1967, in a series of wills preceding the will in contention in these proceedings, the testator had given the residue of his estate to his two sons equally. The testator had also made provision in the 1967 will for his first wife and, after the death of his first wife, he made provision for his second wife, the second respondent.

By the will which is in contention, the respondents were appointed trustees and executors and pecuniary, legacies were given to the testator’s daughters and widow who also received certain life interests, while the residue went to the first respondent. Clause 7 of the will expressed the testator’s reasons for not making any provision for the appellant in these terms:

"......as he has not cared for my welfare and in fact has compelled me into litigation with him in spite of many efforts made by me to bring about a reconciliation. Furthermore, he has defrauded thousands of dollars and has not been accounting for the large amounts he has been collecting from the family company, Golden Dragon Limited. Furthermore, as a result of his actions, my family companies and I have suffered and are likely to suffer considerable losses financially."

All the testator’s wills had been drawn by Mr Kantilal Parshotam, an experienced conveyancing solicitor, who had acted for the testator since the early 1960s. Mr Parshotam considered that the testator well understood spoken English and was satisfied that the testator could convey his instructions properly and was not suffering from any mental or physical impairment either when giving his instructions on 4 December 1988 or when executing the will one week later.

The testator explained to Mr Parshotam his reasons for disinheriting the appellant as stated in clause 7 of the will. The testator had also complained to his accountant, Mr Kapadia, about the appellant. Mr Kapadia, who gave evidence, stated that the testator, believing that some of his money was missing, went with Mr Kapadia to the Golden Dragon night-club to open the safe but was prevented by the appellant from doing so.

Although Mr Parshotam told the testator that he should reflect before disinheriting the appellant, the testator had not changed his mind when he came to execute the will on 11 December. He was then accompanied by his wife who did not speak English. Mr Parshotam explained the provisions of the will to the testator, as did another Suva solicitor Mr Khan whom Mr Parshotam had asked to do so as an independent solicitor. The will was then duly executed in the presence of Mr Khan and Mr Chand, an experienced law clerk in the employ of Mr Parshotam, as the attesting witnesses who subscribed their names in that capacity. Messrs. Khan and Chand gave evidence that, to the best of their observation, the testator understood the will.

Primary judge’s findings

The evidence of Messrs. Parshotam, Khan and Chand as to the circumstances in which the will was made was accepted by the primary judge who found that the will was duly executed, that the testator was of testamentary capacity - there being no evidence to the contrary - and that he knew and approved the contents of the will.

The primary judge’s examination of the issue of undue influence requires to be dealt with in a little more detail. His Lordship set out his understanding of the appellant’s case of undue influence in his way:

"the first [respondent] who was himself a thoroughly dishonest businessman .........by a process of systematic calumny and bullying and by preventing his father from meeting the [appellant] persuaded the testator that the [appellant] was unstable, unreliable, incompetent and dishonest and that having succeeded in so persuading him the testator altered his will and disinherited the [appellant]."

The primary judge acknowledged that it was central to the appellant’s case that the Court should inquire into the truth of the allegations contained in clause 7 of the will, the honesty of the first respondent and the operations of the family companies in relation to the testator’s sons. The judge declined, however, to undertake such inquiries, though he did admit into evidence an affidavit sworn by the testator before execution of the will which deposed to the appellant’s activities in the companies. The affidavit was sworn in connection with the litigation then on foot relating to the companies. His Lordship ruled that the affidavit was admissible on a technical ground but indicated that he would not place any reliance whatever on allegations made in the affidavit against the appellant.

Having recapitulated his rulings in relation to the affidavit, his Lordship, in a critical passage in the judgment, went on to say:

"In my view whether the [appellant’s] allegations that the first [respondent] was dishonest and poisoned the testator’s mind are true or not they do not affect the central question before me namely did the first [respondent] coerce the testator into disinheriting the [appellant]? This is because the truth of a testator’s beliefs which lead him to make the dispositions which he in fact makes do not affect their validity, were that not so then upon it being shown in any case that a testator acted on wrong information it would be open to have the will set aside............"

His Lordship went on to say that even if he were to accept the whole of the appellant’s case, it would not amount to proof that coercion had taken place, there being in his view, nothing that amounted to evidence of coercion. His Lordship then made a positive finding that coercion had not taken place and concluded by saying that, in order to establish a case of undue influence, it was necessary for the appellant to prove that the will was signed as a result of coercion.

Decision of the Court of Appeal

As the main thrust of the appellant’s argument before us was directed against the judgment of the primary judge, we can deal very briefly with the judgment of the Court of Appeal. In effect the Court of Appeal endorsed the judgment of the primary judge, in particular the passage in the judgment in which the primary judge found that there was nothing that amounted to evidence of coercion and made a positive finding that there was no coercion.

The Appellant’s Case

The appellant’s principal argument is that the primary judge failed to deal with the issue of fraud and to make findings with respect to that issue, notably a finding on the question whether the execution of the will had been procured by fraud. Moreover, the appellant submits that the primary judge wrongly declined to deal with matters material to the issue of fraud, by misdirecting himself that the testator’s beliefs were irrelevant, by rejecting evidence and refusing to allow cross-examination relevant to that issue. The appellant also submits that the primary judge failed to take account of the significance of the testator’s departure from his earlier dispositions in favour of the appellant, a circumstance giving rise to suspicion and having consequences for any finding of knowledge and approval, undue influence and testamentary capacity.

The fraud issue

Central to the appellant’s case is the proposition that fraud is and was pleaded as a distinct ground of attack on the will, independent of undue influence. Although fraud has been regarded sometimes as a species of undue influence and fraud is sometimes an element in the proof of a case of undue influence, fraud is now acknowledged to be an independent ground for setting aside a will (Boyse v. Rossborough (1857) 6 HLC 2; Parfitt v. Lawless (1872) LR 2 P&D 462 at 470-471). The difference between undue influence and fraud in the sense of fraudulent misrepresentation was well explained by Lord Cranworth L.C. in Boyse v. Rossborough at 44-45 in a passage where it appears that in the former case the victim’s will is coerced through fear and in the latter the victim’s will is induced by fraud. This difference is fundamental to the appellant’s case. The appellant, seizing upon the passage in the primary judge’s judgment which we have earlier described as critical, submits that His Lordship erroneously merged the issues of undue influence and fraud and concluded that coercion is a necessary element to be established in a case of fraud, just as it is in a case of undue influence.

The appellant’s argument would have undeniable force if an independent case of fraudulent misrepresentation had been presented, separate and distinct from undue influence.

Then it would have been enough to show that the execution of the will had been induced rather than coerced by fraud.

It appears however, that the appellant did not mount an independent case based on fraud. Instead, the appellant raised fraud as an incidental aspect of a case of undue influence. This clearly emerges from para. 5 of the statement of defence which pleads undue influence and goes on to allege that the will -

"was obtained by undue pressure and influence particularly of the first [respondent]."

The particulars given of para. 5 include para. (c) which after stating that the first respondent unduly influenced the testator goes on to allege -

"and by his misrepresentation and false allegations against the [appellant] was able to control and manoeuvre the said Deceased in having the ..... will in the form that the first [respondent] desired."

No other reference to fraud or misrepresentation is to be found in the statement of defence or the particulars which it contains.

Of greater significance are the minutes of a pre-trial conference held on 31 October 1994 pursuant to Order 34 rule 2 of the High Court Rules. The purpose of a pre-trial conference under the rules is to curtail the duration of the trial. One of the means of achieving that object is by defining the issues. The minutes signed by the solicitors for the parties, record the issues which were agreed. The issues recorded in the minutes make no reference to fraud at all. The third issue as stated in the minutes simply asks whether the testator suffered undue influence particularly of the first respondent and/or whether the will was made -

"under the undue pressure particularly" of the first respondent.

The appellant’s lengthy written "Skeletal Submission", prepared by counsel following an adjournment at the close of the evidence at the trial, of 24 August, 1995 makes no reference to fraud as an independent ground of relief. Under the heading "Undue influence", there is a fleeting reference to "false and untrue" allegations made by the first respondent to the testator against the appellant. There is no mention of specific allegations. Nor do the written submissions seek to make the point that in the case of fraud it is enough to show that the fraud procured or induced the execution of the will without establishing that the testator was coerced into making the will, as is the case with undue influence. One would have expected that point to have been expressly made, if appellant’s counsel were relying upon fraud as an independent ground of relief.

We conclude therefore that fraud was no more than an incidental aspect of the appellant’s case on undue influence and that the critical passage in the primary judge’s judgment is to be explained by the way in which the appellant’s case was thus presented.

When the critical passage in the judgment is read in its context, it is plain enough that the primary judge saw the appellant’s case as one of undue influence. His Lordship was amply justified in treating fraud as an incidental aspect of that case.

Rejection of evidence

This conclusion has consequences for the appellant’s remaining submissions. The judge’s refusal to allow a roving inquiry into the business of the companies as a vehicle for investigating the relationship between the testator and his two sons and his refusal to allow cross-examination of the first respondent as to his personal finances and transactions and as to the testator’s affidavit in the company litigation were based in part on considerations of relevance. Thus the judge allowed general questioning on the results of financial dealings which disclosed such relevant matters as disagreements with the testator and with the appellant.

The judge’s rejection of evidence was also based on the view that the evidence before the court negated a finding of coercion. Such a finding was essential to the establishment of a case of undue influence.

The judge’s view on the issue of coercion rested on the evidence as to the circumstances in which the will came to be made and the absence of evidence of coercion. His Lordship did not refer to the testimony of Mr. Bayameyame, an ex-employee of Golden Dragon Limited who said that the first respondent told him not to drive the testator to the appellant and, when the testator did visit the appellant to get him back. This evidence, if accepted, amounted to very little and it was, in any event, contradicted by the first respondent.

We might have been disposed to take different view of the matter had there been material which suggested that there was an arguable case of fraud. The materials before us do not indicate that there was such a case. There is an absence of that degree of detailed particularity of misrepresentations which is expected in cases where fraud is alleged. Indeed, we consider that the Court of Appeal was justified in describing the allegation that the first respondent poisoned the testator’s mind against the appellant with "fraudulent calumny," even as support for the case of undue influence, as "no more than wishful thinking."

Other issues

The attack upon the primary judge’s proposition that the truth of a testator’s beliefs which lead him to make dispositions do not affect their validity must also be rejected. His Lordship advanced this proposition in the context of a discussion of fraud as an incident of undue influence. His Lordship was emphasizing the need to establish the element of coercion.

Likewise, the argument that the primary judge failed to appreciate that the disinheritance of the appellant after a history of wills in which he was a residuary legatee raised a case of suspicious circumstances must fail. True it is that such a history, followed by a radical departure from it, generates a case of circumstances calling for close scrutiny the more so when the person in whose favour the change is made exercises great influence and authority with the testator (Marsh v. Tyrrell and Handing [1828] EngR 170; (1828) 2 Hagg Ecc 84 at 87 [161 ER. 793 at 794-795; Bailey v. Bailey (1924) 34 CLR S58 at 571; Wintle v. Nye (1959) 1 WLR 284 at 294). Such circumstances, however, do no more than require vigilance in seeing that the case is fully proved (Lowe v. Guthrie [1909] UKLawRpAC 13; (1909) AC 278 at 282-283; Nock v. Austin (1918) 25 CLR 519 at 523). So the plaintiff seeking proof in solemn form must affirmatively establish to the satisfaction of the judge that the testator knew what he was doing (Tyrrell v. Painton [1893] UKLawRpPro 56; (1894) P. 151 at 156; Nock v. Austin (1918) 25 CLR 519 at 523). The respondents satisfied this requirement beyond any question. The testator knew and approved the contents of the will.

To the extent that it may be said that the suspicions circumstances went to fraud or undue influence then the respondents satisfied the requirements of proof as our earlier discussion of those issues demonstrates.

The appellant suggested that the same circumstances - disinheritance amounting to a radical departure from a previous pattern of testamentary dispositions - could generate a suspicion that the testator was suffering from an insane delusion. The evidence does not support the drawing of such an inference. The evidence of the circumstances surrounding the preparation and execution of the will destroys the foundation, if any, for such an inference.

Conclusion

In the result the appeal must be dismissed.

Orders

Appeal dismissed with costs.

Sir Timoci Tuivaga

Lord Cooke of Thorndon

Sir Anthony Mason

Solicitors:

Sahu Khan and Sahu Khan, Ba, for the Appellant
Jamnadas and Associates, Suva, for the Respondents

CBV0004U.97S