Holameitonga v Taimani [2004] TOLawRp 9; [2004] Tonga LR 41 (15 April 2004)

IN THE SUPREME COURT OF TONGA

Holameitonga

v

Taimani anors

Supreme Court, Nuku'alofa
Ford J
CV 693/2003

23-25 February and 5 March 2004; 15 April 2004

Wills – challenge to validity – sought Court's determination of legal interest in assets

On 17 August 2003, while in the United States, 'Aisea Lupeheke Taimani, committed suicide. In his will he appointed his wife, Lita, the first defendant and mother of four of his children, executor. The plaintiff was his daughter from his first marriage and acted in a representative capacity on behalf of herself and her nine siblings. They all resided in the United States. The plaintiff sought orders to freeze the alleged assets of her late father's estate until such time as the court could determine those persons entitled to a legal interest in those assets. The plaintiff challenged the right of 'Aisea's widow, the first defendant, Lita Taimani ("Lita") to administer the estate and she sought the appointment of the Registrar of the court to carry out that exercise. The property in dispute was: a motorcar, a van, a length of tapa, a term deposit of $55,000 at ANZ bank, a deposit of $100,000 at the Tonga Development Bank, a savings account at Westpac Bank of Tonga containing $626.12, nine cattle in the custody of the fifth defendant, a tractor and accessories valued at $24,000 in the custody of the sixth defendant. The first defendant conceded that the motorcar, the Westpac Bank of Tonga account and $14,000 of the value of the tractor and accessories should properly be included in 'Aisea's estate but she contended that the claim in respect of the other items should be dismissed with costs. The fifth defendant claimed ownership of all the cattle. The sixth defendant claimed ownership of the tractor and accessories.

Held:

1. The Court found that, at the date of 'Aisea's death, Lita was a joint holder of the funds in the ANZ and TDB accounts. Both the van and the tapa were purchased with funds drawn from that $55,000 balance. They, therefore, belonged to the first defendant.

2. Section 109 of the Evidence Act (Cap 15) gave rise to a presumption of ownership arising from mere possession. The fifth and sixth defendants had possession of the cattle and tractor respectively.

3. The plaintiff gave no evidence in chief that would support her claim to the cattle.

4. The tractor belonged to the sixth defendant at the date of 'Aisea's death and not to 'Aisea, even though Lo'amanu was still to pay $24,000 for it. 'Aisea gifted $10,000 of that debt to his mother so when that was paid by the sixth defendant, that $10,000 would not form part of the estate. The right to recover the balance of the purchase price, namely $14,000, did remain an asset of the estate.

5. The Court had confidence that the first defendant, with the assistance of her counsel, would conscientiously administer her late husband's estate and the plaintiff's request to have the Registrar appointed Administrator was declined.

6. The defendants were entitled to costs to be agreed or taxed.

Case considered:

Sandys v 'Otukolo Tonga LR Vol 2 (1956) 200 (PC)

Statutes considered:

Evidence Act (Cap 15)

Probate Act (Cap 16)

Counsel for plaintiff: Mr 'Etika
Counsel for first defendant: Mr Niu
Counsel for second defendant: Mrs Vaihu (given leave to withdraw and abide the decision of the Court)
Counsel for third defendant: Ms Tupou (given leave to withdraw and abide the decision of the Court)
Counsel for fifth and sixth defendants: Mr Tu'ivai

Judgment

The plaintiff brings this action in a representative capacity on behalf of herself and her nine siblings. They all reside in the United States. The writ was filed on 17 November 2003 together with an ex parte application for an injunction. In the injunction application, the plaintiff sought orders effectively freezing the alleged assets of her late father's estate until such time as the court could determine those persons entitled to a legal interest in those assets. The deceased, 'Aisea Lupeheke Taimani ("'Aisea") died on 17 August 2003.

In a supporting affidavit the plaintiff challenges the right of 'Aisea's widow, the first defendant, Lita Taimani ("Lita") to administer the estate and she seeks the appointment of the Registrar of the court to carry out that exercise.

The relief sought in the statement of claim is virtually identical to that asked for in the injunction application. The plaintiff seeks orders of a temporary nature only effectively freezing the various assets until further order of the court.

Surprisingly, no amended statement of claim has ever been filed. So, as the pleadings stand, no substantive relief is being asked for. A statement of, claim must state specifically the relief or remedy which the plaintiff claims. The court cannot be left to speculate. As is noted in the (UK) Supreme Court Practice (the White Book 1991) in relation to O.18r.15, the English equivalent to the Tongan O.8 r.1, "the practice is for the prayer for relief or remedy to come at the end of the statement of 80 facts and to start "the plaintiff claims ..." and then set out separately and distinctly in numbered paragraphs the items of relief or remedy which are claimed."

In the present case, the plaintiff has followed that general format but she has never sought any relief apart from the temporary orders freezing the assets pending the main hearing and those orders were made in response to the injunction application. In the circumstances, it would be tempting to end my judgment at this point by simply acknowledging that the relief sought has already been granted and the proceedings, therefore, are spent.

But a failure to comply with the Rules of procedure, even in form or content, will be treated only as an irregularity and will not nullify the proceedings. In this case, the defendants do not claim any injustice or prejudice and they have proceeded on the basis that there are substantive issues for the court to determine. I will, therefore, now deal with those issues as they have been identified by counsel in their various submissions.

I should add that even the heading to the pleadings is not without controversy. The writ is headed " 'Eita Holameitonga of California, United States of America suing as next of kin for ..." (the names of her nine brothers and sisters are then listed).

The expression "next of kin" means nearest in blood but the evidence is that 'Aisea had other children to Lita who are living and residing here in Tonga. Mr Tu'ivai challenges the accuracy of the "next of kin" expression in the context of this case and suggests that the plaintiff is really suing in some other more general capacity on behalf of the family in America.

As indicated at the commencement of this judgment, the plaintiff can probably best be described as a representative plaintiff suing on behalf of and representing herself and the nine named next of kin.

Against that rather convoluted introduction, I now turn to consider the merits of the case. The property in dispute can be listed as follows:

1. Motorcar No. C5925;

2. A van No. L 8405;

3. 50 length of tapa; (sic)

4. Term deposit of $55,000 at ANZ bank;

5. A deposit of $100,000 at the Tonga Development Bank;

6. A savings account at Westpac Bank of Tonga containing $626.12;

7. Nine cattle in the custody of the fifth defendant;

8. A tractor and accessories valued at $24,000 in the custody of the sixth defendant.

The plaintiff claims that all the items listed form part of 'Aisea's estate. It is also claimed that, although 'Aisea left a will, the will was, in fact, invalid and hence he died intestate. On an intestacy, section 16 of the Probate Act (Cap 16) would apply and, pursuant to that section and the Schedule to the Probate Act, the widow, Lita, would be entitled to only one third of the property and the children of the deceased two thirds, in equal shares.

The defendants accept that the foregoing is effectively the relief which the plaintiff seeks. The first defendant concedes that the motorcar, the Westpac Bank of Tonga account and $14,000 of the value of the tractor and accessories should properly be included in 'Aisea's estate but she contends that the claim in respect of the other items should be dismissed with costs. The fifth defendant claims ownership of all the cattle. The sixth defendant claims ownership of the tractor and accessories.

In her agreed bundle of documents, the plaintiff included a copy of a declaration dated 14 March 2003 which she filed in other proceedings. The contents, helpfully, set out more about the background to the present litigation. The facts as stated did not appear to be in dispute.

The plaintiff, who was 'Aisea's second eldest child, is now 42 years of age. She spoke about how her mother, effectively, raised the 10 children. In one paragraph of a declaration, Eita said:

"We earned our living from farming and we noticed that when it (was) harvest time or our mother was pregnant, our father would go on the hunt for women and even stayed out with them in de facto relations for some time."

The family moved to the United States in the 1970s and eventually the children married and had their own families. They took turns in caring for their elderly mother. In 1998 the mother decided that she wished to return to Tonga.

In 1999 the plaintiff and her husband built a new house for the mother on the land which the family had originally lived on at Tatakamotonga. The house was shipped to Tonga from the United States and it cost over US $100,000 to construct.

It appears that the mother moved into the house for a period in 1999 and then returned to the States in December of that year to spend the new millennium with the plaintiff's family. She ended up staying on much longer but she had finally arranged to return to Tonga in February 2001.

Nothing very much is said in the plaintiff's declaration about 'Aisea apart from noting that he had apparently promised to reunite with his wife in Tonga in March 2001.

In February 2001, just before she was due to return to Tonga, the mother learned that 'Aisea had already returned to Tonga and he was again living with his de facto partner, Lita. The plaintiff said that when her mother learned of this "betrayal" she suffered two strokes and died in pain on 21 February 2001.

At the mother's funeral in the States the family were reunited. They had a meeting with the father, 'Aisea, and they made him promise that he would not live with any other woman in the house that had been built for the mother at Tatakamotonga and that he would not remarry.

In February 2003 the plaintiff heard "a rumour" in the States that 'Aisea had married Lita. On 12 March she had a telephone conversation with him in which he confirmed the rumour. He also told her that he, Lita and their children were planning to move into the house at Tatakamotonga which the plaintiff and her husband had built for the mother.

The plaintiff then apparently flew to Tonga from America the next day and immediately made arrangements to pull down the house in question and remove the wreckage.

On 14 March 2003, the plaintiff completed the declaration which this background information has been extracted from. The declaration was filed in court in support of her application for an order allowing her to demolish the house at Tatakamotonga. She estimated that the demolition work would take five days and she undertook to meet all the costs involved. Significantly, in terms of the present proceeding, in her declaration she stated the following:

"42. I know for certain the defendant ('Aisea) had funds over TOP $200,000 invested on term deposit with the ANZ bank in Nuku'alofa, and he can easily build up another house for him and his new family at any time."

An order was duly granted authorising the demolition work to proceed.

In the present case, the first plaintiff, Lita, gave evidence that at about the same time that all this was happening, i.e. March 2003, 'Aisea was not keeping in good health. He was suffering from shortness of breath and had to be admitted to hospital. In April 2003 he travelled to the United States for medical treatment. He had an operation and was away from Tonga for one month. On 5 August 2003 he returned to the States for a medical checkup. Twelve days later, on 17 August 2003, while still in the States, 'Aisea committed suicide.

Lita, who is now 33 years of age, told the court that she had married 'Aisea on 21 January 2003. Prior to the marriage, the couple had had four illegitimate children -- one son born on 28 April 1989 and three daughters born respectively on 29 June 1992, 22 October 1998 and 24 September 2002. In each case 'Aisea had signed the Register Book as being the father and he is recorded as the father on the children's' birth certificates.

Lita said that although 'Aisea was a permanent resident of the United States, he lived with her and the children for periods when he returned to Tonga and he provided regular financial support for them. Lita was aware that 'Alsea was married with a wife living in the States. She said that she was also aware that even when he was living with her he had "two or three other woman" here in Tonga.

On 8 January 2002 'Aisea had opened a term deposit account with the ANZ bank in Nuku'alofa (account number 126095-6) and had invested $200,000 in that 200 account for a term of two years. The bank subsequently allowed "partial breakouts" as the withdrawals were called.

On 10 September 2002 'Aisea made a will leaving the entire $200,000 investment, together with other monies, to his daughter 'Eita, the plaintiff, "TO SOLELY GET IT FOR HERSELF." He told 'Eita about the will when she visited Tonga in October 2002. He never told her subsequently that he had made a later will leaving the $200,000 to his new wife Lita. It is not clear from the evidence whether 'Eita was aware of the rule that a will is automatically revoked, anyhow, by the testator's marriage.

'Aisea's second will was made on 21 March 2003, two months to the day after his marriage. Lita was appointed executor. The will then went on to provide:

"I DEVISE MY PROPERTIES as follows:

My TOP $200,000 together with interest thereon, or balance thereof, which is deposited in a term deposit account number 126095-6 at the ANZ Banking Group Ltd, I DEVISE IT to my wife LITA FOTU'AIKA of Pahu, Tongatapu to support herself and for the maintenance of our four (4) children, namely: " (the children are then named).

Earlier in that same month, 'Aisea had visited the ANZ Bank. Fotolina Fonua, a senior consultant with the bank was called as a witness on behalf of the first defendant. She told the court that she recalled 'Aisea instructing her on that visit as to how he wanted account number 126095-6 changed into a joint account with his wife. She explained to him the procedure. She told him that he would need to put the instruction in writing and he would need to bring his wife along to the bank so that she could sign as a signatory to the account.

'Aisea told Fotolina that he could not write English and so she helped him prepare the instructing letter to the bank. It is dated 6 March 2003.

The letter reads: "Instruction to my account # 126095-6

I'm (sic) hereby authorise my wife Lita Fotu'aika to signed on my behalf if there's any unexpected problem will cause me.

Should you require any further details please refer Silivia Lasalo or Fotolina Fonua."

Fotolina said that her understanding of the instruction was that Lita could only sign on the account if any unexpected problem or accident happened to Aisea.

The witness said that she also recalled 'Aisea returning to the bank later in the month with Lita and his newly completed will. She arranged for Lita to become a signatory to the account and she took a photocopy of Aisea's will.

The plaintiff challenges the validity of that will dated 21 March 2003. First, she claims that it is invalid because it refers to a specific bequest of $200,000 whereas the evidence is that on 6 January 2003 Aisea had withdrawn $25,000 from the account to purchase a tractor with accessories. Secondly, it is contended that the will "is flawed" because the beneficiary, Lita, had already been made a signatory to the account and so, in effect, the testator was making a bequest of something that had already been gifted to the beneficiary.

No authorities were cited in support of either proposition. The short answer to the first objection is that the will specifically referred to the balance of the term deposit (whatever that may have been at the data of death). The second objection, likewise, has no substance. It is not uncommon for a joint account holder, particularly the one who initially provided all the funds, to include in his or her will a specific bequest to the other of the balance of the account. Such a disposition is useful in that it rebuts any presumption of a resulting trust in favour of the estate of the joint holder who provided the initial funds.

Apart from the withdrawal of $25,000 in January 2003 to buy the tractor, there was another more significant development with the ANZ account prior to 'Aisea's death. On 25 June 2003 $100,000 was withdrawn and invested on promissory notes at the Tonga Development Bank ("TDB"). 'Aisea first discussed this proposal with Lita before making the change. He was able to negotiate a slightly higher interest rate at the TDB. He told Lita that the money was to build a house for her and their children.

Lita also related another conversation they had about the money on the same day that 'Aisea flew to the United States for the final time on 5 August 2003. It was the last conversation they had before she took him to the airport. 'Aisea said to her that if it comes December and he has not returned then she should go and withdraw the $100,000 and build a house for their children.

Lita was asked by Mr Niu whether she knew of any reason why he had mentioned that he might not be back by December. She replied:

"He repeatedly told me that he wanted to die and kill himself. I told him not to because I could not survive with our children. He said that the money is all for you. I thought he was only saying it and he would not do anything to himself. He told me this on the day and I took him in the afternoon to the airport."

I accept all that evidence.

At the date of 'Aisea's death the balance remaining in ANZ account, 126095-6, stood at $55,000. In addition to the initial withdrawal of $25,000 to buy the tractor, 'Aisea had withdrawn $20,000 on 28 July 2003 in connection with his pending visit to the United States. There was also the $100,000 investment in promissory notes held at TDB. In my view, Lita was the joint owner of the funds held in both those accounts. 'Aisea had made that decision back in March 2003 when he made Lita a signatory to his ANZ account.

Although the instructing letter to the ANZ bank dated 6 March did not spell out the fact that Lita was to be a joint holder of the account, the intention was clear and both Lita and Fotolina Fonua knew that what 'Aisea intended by the reference in his letter to "unexpected problem" was that if he was to die then his wife Lita was authorised to sign for and withdraw funds from the account.

As Mr Niu noted in his submissions, the fact that, after 'Aisea's death, the ANZ bank allowed Lita to freely sign for and make withdrawals from the account upon production of his death certificate, corroborates what both witnesses had told the court about their perception of 'Aisea's intentions.

When the $100,000 was subsequently invested in TDB promissory notes, 'Aisea made it clear to the TDB bank that Lita was a joint holder of those funds.

Fusipeau Fifita, an accounting officer with the TDB with some 10 years experience, told the court that she recalled 'Aisea calling to inquire about interest rates. Because of the large amount he was proposing to invest, the bank agreed that the rate would be 6% instead of the usual 5.6%. Fusipeau completed the application form for the promissory notes and all 'Aisea then had to do was sign his name towards the foot of the form, which he duly did.

There is a lined space in the application form where the name of the applicant is to be written in block letters. Virtually the whole of that line is taken up with the name "'Aisea Lupeheke Taimani", then there is a stroke followed by the words "Lita Taimani". Lita's name is obviously an add-on. It is squeezed in at the end of 'Aisea's name.

Fusipeau explained to the court that she had written down 'Aisea's name only and then he had asked her to include his wife, Lita's name, and she did. I accept that explanation. 'Aisea also told the bank officer that if anything happened then she should contact Lita. He explained to Fusipeau that he had children who were still young and the purpose of the money was to educate them and build a house for them.

Fusipeau told the court that, in accordance with the bank documentation, the account was then a joint account and if anything happened to one of the holders the money would automatically go to the other.

Mr 'Etika vigorously cross-examined Fusipeau over the subsequent insertion of Lita's name on the application form. He put it to the witness that it was a different style of writing and it had been written much later by some other person. Fusipeau denied both propositions. In his written submissions, counsel even went as far as to suggest that Lita's name had been added to the form after 'Aisea's death at Lita's request. As I recall it, that proposition was never put to the bank officer or Lita in crossexamination but, in any event, I reject it as being quite preposterous. I found Fusipeau Fifita to be an honest and reliable witness.

My finding that, at the date of 'Aisea's death, Lita was a joint holder of the funds in the ANZ and TDB accounts, is really a complete answer to the plaintiff's claim. That in turn makes it unnecessary for me to have to consider some of the other interesting scenarios Mr Niu referred to in his submissions dealing with joint bank accounts where the original depositor's intentions may be more difficult to discern. In this case, 'Aisea's intentions were explicit and well recounted by the first defendant and her witnesses.

If any additional confirmation of 'Aisea's intentions was required then one need look no further than the terms of his final will. The fact that he gave a copy of his will to Fotolina Fonua at the ANZ Bank clearly corroborates his verbal advice to the bank officer that upon his death the funds belonged to Lita.

My finding in relation to the $55,000 balance held in the ANZ account at the date of 'Aisea's death is also a complete answer to the plaintiffs claim in respect of the van and the tapa. Both the van and the tapa (which, in fact, consisted of two fuatanga tapa) were purchased with funds drawn from that $55,000 balance. They, therefore, rightfully belong to the first defendant.

That leaves only the claims in respect of the cattle and the tractor to be resolved. As was noted by the Privy Council in Sandys v 'Otukolo Tonga LR Vol 2 (1956) 200, section 109 of the Evidence Act (Cap 15) gives rise to a presumption of ownership arising from mere possession. The fifth and sixth defendants have possession of the cattle and tractor respectively.

The plaintiff gave no evidence in chief that would support her claim to the cattle. For his part, the fifth defendant, 61-year-old 'Alipate Sefo told the court that back in July 1992, 'Aisea had given him four cows for looking after his ('Aisea's mother). Two were for the mother and/or her funeral, the other two were Sefos. Sefo still looks after 'Aisea's mother. She is now 87.

The fifth defendant described to the court how the number of cattle had over the years varied as some had been disposed of from time to time on 'Aisea's instructions but at the time of 'Aisea's death the number of cattle in total stood at nine. Sefo's evidence was that on the day before 'Aisea had left for the United States for the last time, in August 2003, he had gifted all of the cattle to Sefo.

I accept that evidence and I note that the first defendant also accepted it even though, as Mr Niu pointed out, it was against her interest in that the cattle would not form part of 'Aisea's estate of which she is entitled to one third share.

The position regarding the tractor is also complicated but, in summary, the tractor is the one referred to earlier in this judgment which 'Aisea had withdrawn $25,000 from the ANZ Bank account to purchase in January 2003. In March 2003 he agreed to sell it to the sixth defendant, Lo'amanu Taimani, for $24,000. Lo'amanu had no money at the time that he undertook to pay the purchase price from the proceeds of the sale of his squash harvest for 2003. As it turned out, the 2003 squash season was a disaster and Lo'amanu has still not paid the $24,000. He, nevertheless, freely acknowledges the debt.

There was obviously a close understanding between 'Aisea and Lo'amanu. They are first cousins. At no stage did 'Aisea operate the tractor himself but right from when he first purchased it in January 2003 he had left it in Lo'amanu's possession.

I accept Lo'amanu's evidence. The tractor belonged to him at the date of 'Aisea's death and not to 'Aisea, even though Lo'amanu was still to pay for it.

There is an additional complication. Lita told the court, and her evidence was unchallenged, that 'Aisea had said to her that when Lo'amanu paid the money for the tractor, she was to give $10,000 to his mother. I accept that evidence. It is consistent with 'Aisea's general prognostication that his fate was sealed. It effectively means that the $10,000 was gifted to his mother prior to his death and when paid by Lo'amanu, that $10,000 will not form part of the estate. The right to recover the balance of the purchase price, namely $14,000, does remain an asset of the estate.

In summary, the claims by the plaintiff in respect of van L8405, the tapa, the balance held in the ANZ Bank term deposit account, the promissory notes at the TDB totalling $100,000 and the cattle are all dismissed. Those assets do not form part of 'Aisea's estate.

The motorcar C5925, the $626.12 in the Westpac Bank of Tonga account and the $14,000 chose in action, being part of the sixth defendant's debt in relation to the tractor, are declared part of or the whole (as the case may be) of the estate (it is unclear whether any other assets are involved in the estate apart from those challenged by the plaintiff in this proceeding).

I have every confidence that the first defendant, with the assistance of her counsel, will conscientiously administer her late husband's estate and I decline the plaintiff's request to have the Registrar appointed Administrator.

The defendants are entitled to costs to be agreed or taxed.