Harris v Hedmon [1982] NRSC 1; [1969-1982] NLR (B) 151 (5 February 1982)

[1969-1982] NLR (B) 151

IN THE SUPREME COURT OF NAURU

Land Appeal No. 6 of 1981

GLORIA HARRIS AND ANOTHER

v

LUCAS M. D. HEDMON AND OTHERS

5th February, 1982.

Nauruan will - construction - will in favour of illegitimate children - legitimate children not expressly excluded as beneficiaries - presumption of intention not to disinherit legitimate children.

Appeal against construction of a Nauruan will. The deceased's will was valid but made without advice as to its effect. It provided simply that all the deceased's lands were to be held by his eight illegitimate children and their mother. It made no reference to his two legitimate children.

Held: Because by Nauruan custom land passes on intestacy to a deceased person's legitimate children but not to his illegitimate children, and because it is most unusual for a Nauruan to disinherit his legitimate children, there is a rebuttable presumption in respect of the will of a Nauruan that, unless the testator expressly disinherits his children, he does not intend to do so. The presumption may be rebutted by proving that he intended to exclude them.

Appeal allowed.

R. Kun for appellant
B. Dowiyogo for respondent

Thompson C.J.:

This appeal concerns the estate of the late Dagauwe Hedmon, who died in 1981. Dagauwe was a married man but for many years he had been separated from his wife and lived with another lady, Eidogidagaiy Deiranouw. When he died, he was survived by two daughters, Gloria and Nightingale, the children of his marriage, and by eight children born to him by Eidogidagaiy. Gloria and Nightingale are the appellants in this appeal; Eidogidagaily and her eight children are the respondents.

On 22^nd May, 1978, Dagauwe made a will. Mr. Kun, representing the appellants, has conceded, correctly in my view, that it was a valid will for the purpose of disposing of his lands in Nauru as well as his personality. That will was never revoked. When the Nauru Lands Committee came to decide on the distribution of Dagauwe's estate, it correctly decided to give effect to the will. This appeal is concerned only with whether in fact the Nauru Lands Committee interpreted its provisions correctly.

The will is written in the Nauruan language. Mr. Kun and Mr. Dowiyogo, who represents the respondents, agreed that the proper translation of it into the English language is:-

"All my lands, both the phosphate and coconut, together with all my personalty, are to be held as follows below".

Then follows simply a list of the names of the respondents and, in respect of Eidogidagaiy the words "Edogay is to feed off my property for the rest of her life (L.T.O.)".

On the face of it the will appears to be unambiguous. However, Mr. Kun adduced evidence of the circumstances in which it was made. From that evidence it is clear that Dagauwa did not discuss with the witnesses what he wanted to achieve by the will and it appears that he received no expert advice on the effect which the will would have on the rights of succession which his legitimate children, the appellants, would otherwise have had.

In Nauru it is very rare for a person to disinherit his legitimate children. The Vice-Chairman of the Nauru Lands Committee, Mr Doguape, gave evidence that in the past twenty years there has been only one such case; and that, in that case, the testator by the terms of his will expressly exclude the child from taking any benefit from the estate. In the vast majority of cases Nauruans do not make wills; they know that in the absence of a will all their legitimate children will share in their estate equally, and that is what is usual in Nauru. However, the illegitimate children of a man do not share in his estate unless by a will he makes them beneficiaries. That is also, I believe, well known to Nauruans. What may not be so well known is that a will making the illegitimate children beneficiaries of all the estate has the effect of excluding the legitimate children unless they are also expressly named in it. As I have already remarked, the percentage of Nauruans who make wills is not high, there is not the common fund of knowledge among Nauruans about wills that there is about the law of intestate succession. In those circumstances I think it unsafe to give effect to a Nauruan will (other than one to which by its terms the provisions of the Succession, Probate and Administration Act 1976 applies) which disinherits his legitimate children unless either it does so expressly or there is evidence that the testator has had proper advice on the effect of the will. In other words there is a rebuttable presumption that a Nauruan testator did not intend to disinherit his legitimate children. I am sure that that is more likely to give effect to the real intentions of Nauruan testators than the simple application of the rules of construction of wills applied by the English courts.

Accordingly in the present case the will of Dagauwe is to be interpreted as showing his intention to add the respondents to his two legitimate children as equal beneficiaries of his estate. The appeal is, therefore, allowed. The decision of the Nauru Lands Committee as to the effect of the will is set aside. Instead it is declared that by virtue of Dagauwe's will, both the appellants and all the respondents are entitled to share equally in his estate, with Eidogidagaiy receiving her share on a life-time only basis and her share being divisible among all the other ten beneficiaries on her death.