Sapolu v Public Trustee [2023] WSCA 1 (18 July 2023)

IN THE COURT OF APPEAL OF SAMOA
Sapolu v Public Trustee & Anor [2023] WSCA 1 (18 July 2023)

Case name:	Sapolu v Public Trustee & Anor
Citation:	[2023] WSCA 1
Decision date:	18 July 2023
Parties:	ILIGANOA DAPHNE SAPOLU (Appellant) v THE PUBLIC TRUSTEE (First Respondent) & MAKA KOMISI SAPOLU (Joinder Respondent)
Hearing date(s):	10 July 2023
File number(s):	CA01/23
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Harrison Honourable Justice Asher Honourable Justice Young
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal is dismissed. The appellant is ordered to pay costs of WST5000 to each respondent plus all reasonable disbursements.
Representation:	L. Su’a-Mailo for the Appellant S. Wulf for the First Respondent J. Fuimaono-Sapolu & I. Sapolu for the Joinder Respondent
Catchwords:	Will and testament – appeal dismissed.
Words and phrases:	“challenged the validity of final will”
Legislation cited:	Evidence Act 2015 s. 15; Wills Act 1975, s. 5.
Cases cited:	Barry v Bullin [1838] EngR 1056; (1838) 2 Moo PCC 480 at p 485; Ramcoomarsingh v Administrator General [2002] UKPC 67; Fuimaono v Public Trustee CA 05/17, 27 August 2018; Rae v International Insurance Brokers (Nelson & Marlborough) [1998] 3 NZLR 190 (CA); Sapolu v Public Trustee [2022] WSSC 78 (14 December 2022); Tanner v Public Trustee [1973] NZLR 68.
Summary of decision:

CA 01/23

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

ILIGANOA DAPHNE SAPOLU

Appellant

A N D:

THE PUBLIC TRUSTEE,

First Respondent

A N D:

MAKA KOMISI SAPOLU

Joinder Respondent

Coram: Honourable Justice Harrison
Honourable Justice Asher
Honourable Justice Young

Counsel: L. Su’a-Mailo for the Appellant
S. Wulf for the First Respondent
I. Sapolu for the Joinder Respondent

Hearing: 10 July 2023
Judgment: 18 July 2023

JUDGMENT OF THE COURT

Introduction

1. The former Chief Justice of Samoa, Patu Falefatu Sapolu (Patu), whose birth name was Falefatu Maka Sapolu, died on 28 November 2021. In issue in this litigation is the validity of what appears to be his final will. It is dated 25 September 2020. On that day, he was a patient in the intensive care ward at the National Public Hospital of Samoa and about to be discharged to fly to New Zealand for medical treatment. The will appointed the Public Trustee as trustee and executor and made specific bequests to a number of family members and a former housekeeper. One of those beneficiaries was Iliganoa Daphne Sapolu (Ili). She was Patu’s wife of nearly 30 years.
2. Shortly after learning of its contents Ili advised of her intention to challenge the will. She lodged a caveat against the grant of administration of Patu’s estate to the Public Trustee. Following a six day trial in the Supreme Court, Chief Justice Perese found that the Public Trustee had discharged its onus of proving the validity of Patu’s will. He dismissed Ili’s challenge and directed the Public Trustee to lodge an application for probate.^[1] He also discharged Ili’s caveat and ordered her to pay costs.
3. Ili appeals against the Chief Justice’s judgment on largely the same grounds which were rejected in the Supreme Court.

Background

4. Patu and Ili’s marriage was the second for them both. They had no children together. Patu had three biological children from his previous marriage - Uele Denning Sapolu, (Uele) Ezra Falefatu Sapolu (Ezra) and Jacqueline Petimara Sapolu (Jacqueline) - who had lived apart from him, mainly in New Zealand, since infancy. His contact with them was sporadic and limited. Patu also had a nephew, Maka Komisi Sapolu (Maka), to whom he often referred as his son and with whom he had a long and close relationship. Ili has a daughter, Jade, from her first marriage.
5. Luamanuvao Katalaina Sapolu (Luamanuvao) is Patu’s sister. She is a lawyer of many years’ experience. She drafted Patu’s last will and three earlier wills for him in 1988, 1993 and 2001while she was practising law in Apia. Luamanuvao held senior positions with the Commonwealth Secretariat in London from 2001 before returning to Samoa in 2017 and resuming legal practice. Patu and Luamanuvao formed a legal consultancy firm, PL Strategy Consulting Ltd (PL), following his retirement from judicial office in 2019.
6. Patu’s last will made principal provision for Ili and Maka. He bequeathed his residential property at Vaoala and land at Malololelei to them as tenants in common in equal shares subject to her tenancy in Vaoala for life or until she remarried. He left a defined area of his land at Aleisa to Maka with the balance to Uele, Ezra and Jacqueline. He left two thirds of his money to Ili, and one third to Maka. He also left her his two motor vehicles, furniture and chattels and the residue of his estate.
7. Patu gifted SAT $30,000 to his “faithful and loyal housekeeper”, Usha Kumari (Usha), and all his shares in PL, law papers and books to Luamanuvao.

Supreme Court

8. Ili’s dissatisfaction with the will stemmed from what she said was Patu’s advice that he did not have a will and that he wanted her to have all his estate except for the Aleisa land. She alleged that Maka and Luamanuvao had colluded dishonestly to disadvantage her against the lengthy background of her strained personal relationship with Luamanuvao. Also Ili and Maka had often been at odds from the time of her marriage to Patu. Ili’s thesis, as it emerged in argument before us, was that Luamanuvao, not Patu, was the true author of the will and forged Patu’s signature to it while he was seriously ill in hospital care, primarily to benefit Maka, her nephew, and, to a lesser extent, herself. Ili’s assertion that her sister in law, an experienced and respected lawyer, would have devised a fraudulent scheme for the purpose of defeating her property interests is serious, and requires careful scrutiny.
9. Ili identified 15 particular grounds of challenge to the will^[2]which can be conveniently distilled into these three main categories for the purposes of addressing the appeal: (1) that the will did not satisfy the statutory requirements for validity; (2) that Patu’s signature to the will was the forged expression of Maka and Luamanuvao’s dishonesty; and (3) that Luamanuvao as the drafter and a beneficiary under the will had not shown the righteousness of the transaction in circumstances where she was a beneficiary and the will was not deposited by Patu with the Public Trustee but instead was produced by Luamanuvao after Patu’s death. Ili abandoned one of her original grounds that Patu lacked testamentary capacity to sign the will.
10. While Ms. Su’a-Mailo for Ili advanced her arguments before us in the same sequential order as the grounds as outlined, we are satisfied that the second ground of forgery should logically be addressed first.
11. The Chief Justice delivered a comprehensive and carefully reasoned judgment within a month of trial. He expressed his conclusion in these terms:
    • “I am of the clear view that Patu had his last will and testament prepared by his sister, as described by Luamanuvao. In his final few hours in Samoa before he left for New Zealand and the medical assistance he needed, he got off his sickbed and sat down on a chair next to it, he took a copy of his Will from Luamanuvao, read it over to ensure that it reflected how he wanted his estate to be distributed, and then signed the Will in front of Alaifetu and Sainimere, whom he had asked to be his witnesses.”^[3]
12. We shall refer more fully to the Chief Justice’s reasoning when addressing each of Ili’s particular grounds of appeal.

Appeal

(1) Forgery

13. Ili’s case as advanced in the Supreme Court was that the document which Luamanuvao produced while Patu was seriously ill in hospital on 25 September 2020, and which he allegedly signed that day, was a forgery as was his signature. She relies principally on the expert evidence of Ms Linda Morrell, a New Zealand document examiner, coupled with what Ms Sua-Mailo referred to as circumstantial evidence.
14. Ms Morrell tendered a written report and gave evidence at trial. She had examined a copy of Patu’s will in preparation for her report. She said the pen path of the signature gave rise to concern. The letter “F” was “totally different” from her examination of 17 different items of reference material. The most notable difference was the absence of the cross bar, a point emphasised by Ms Sua- Mailo in closing. It looked as though the signature may have been retouched or repatched along the path line. She noted 11 other areas of concern. In her opinion the signature gave indications of simulation or copy by a third party wishing to make the signature appear to be genuine.
15. Ms Morell’s report was heavily qualified. She said that the copy of the will was sufficient to determine major details. However, she was able to view the original of the will, but not microscopically, just prior to giving evidence. Her opinion about the indications of forgery remained unchanged. But without the benefit of a microscopic examination of the original she was unable to assess the significance of the questionable features which she had identified on the copy. Thus she stated that her “...opinion is far from conclusive”.
16. A question arose at trial about Ms Morrell’s omission to examine Patu’s signatures on the two cheques which he signed on 25 September. After Ms Morrell had completed her evidence, the Chief Justice granted Ms Sua-Mailo’s application for leave to recall Ms Morrell on the premise that she would be allowed an opportunity to examine the originals of the cheques. Ms Sua- Mailo explained in some detail before us why it was impractical to keep Ms Morrell in Samoa for a further day. But, if it would not have been difficult for her to say a little longer or alternatively to have filed a supplementary report. It is distinctly odd that Ms Morrell was not prepared to engage in a comparison of the disputed signature on the will with the unquestionably genuine signatures on cheques which Patu signed on the morning of 25 September 2020, very shortly before he is said to have executed the will. Another, and related, problem is that Ms Morrell’s report did not take into account, or allow for, Patu’s state of health at the time. Ms Morrell answers to questions from the Chief Justice are telling in this respect. She agreed with him that there were distinctive similarities in the flows of the pen path of Patu’s signature on the copies of the cheques and the will. Ili’s subsequent failure to recall Ms Morrell after being granted express leave for that purpose allows us to infer that she accepted the signatures on the will and cheques were materially similar.
17. The Chief Justice declined to admit Ms Morrell’s report into evidence. He was not satisfied that it was likely to offer substantial help in understanding other evidence or ascertaining a fact of consequence to determining the case, namely whether the signature on the will was a forgery.^[4] Her report failed to take proper account of the fact that Patu was then very ill with a consequential effect on the fluency of his pen stroke. He found that the probative value of her evidence was low. In our view the inconclusive and tentative nature of Ms Morrell’s opinion in circumstances where she had not allowed for Patu’s health and has declined the opportunity to compare the will signature with the genuine cheque signatures robbed her report of any substantial probative value.
18. We can refer briefly to the other circumstances on which Ms Sua- Mailo relied to support an inference of fraud. It is unnecessary for us to examine the relevant principles governing the drawing of inferences to which she referred in argument. That is because there was no factual foundation for drawing such an inference in this case. Ili, supported by her daughter Jade, alleged at trial that Patu had assured her that he had not made a will; that its contents contradicted his further assurance that he wanted all his estate to go to her; and that he would never have included a provision terminating her right to physical tenancy of the Vaoala property in the event of her remarriage, given that she was then 74 years old. We endorse the Chief Justice’s rejection of the evidence of Ili and Jade about Patu’s alleged assurances^[5].
19. It was only when the point was raised by this Court on appeal that Ms Sua-Mailo submitted Luamanuvao was the forger. Ms Sua-Mailo’s written submissions at the close of trial confirm Mr Wulf’s advice for the Public Trustee that this proposition was not advanced in the Supreme Court. And Ms Sua-Mailo confirmed that she did not confront Luamanuvao with this allegation at trial, despite its significance. Other than this untested assertion, and her account of accepting instructions from Patu and preparing his will, there is no evidence linking Luamanuvao to the act of forging that document.
20. Ms Sua-Mailo also submitted that Maka was a party to Luamanuvao’s allegedly dishonest scheme. This submission was based solely on the facts that Maka took a major benefit under the will and his evidence was contrary to Sainimere’s account of events. Those two circumstances could not possibly on their own support a finding of fraud. And we note again that Ms Sua-Mailo did not cross -examine Maka on this proposition.
21. We acknowledge Ms Sua Mailo’s other principal submissions on fraud. Much was made at trial about Patu’s reference in clause 6 of the will to Maka as “... my natural nephew, and by adoption, my brother, who I raised as a son to me since the age of four years...” Ms Sua- Mailo noted that Maka had in fact been adopted by Patu’s mother, Maka’s natural grandmother, who had raised him as her own, and submitted that a man of Patu’s standing would never have made such a fundamental mistake. But he did not materially err. The act of adoption legally constituted Patu and Maka as half-brothers, and Maka’s uncontested evidence, confirmed by others, that their relationship was throughout his childhood that of father and son. Also, as the Chief Justice observed, Patu was emphasising the nature of his moral obligation to Maka ^[6] This attempt to split non-existent hairs did not advance Ili’s case.
22. Ms Sua-Mailo also relied on the description of the testator and the way that Patu signed. The will identified him as “FALEFATU MAKA SAPOLU (also known as Patu Falefatu Sapolu)”. She pointed out that in his later life he was always known by his title, “Patu”. This observation is correct. But it does not cast any doubt on the will’s authenticity. To the contrary, the express references to both Patu’s legal name, the one which appears on his birth certificate, and his title by which he was commonly known, may be seen as the hallmark of a careful drafter. Luamanuvao covered both possible bases. She left no room for ambiguity. It is also not without significance that Patu signed the two 25 September 2020 cheques as “FM Sapolu”.
23. As will be apparent, we reject the contention that Patu’s signature on the will was forged. Ili’s allegations of fraud or dishonesty by Luamanuvao and Maka were without a factual foundation. There is no evidence that either of them acted improperly in relation to the preparation of Patu’s will or, as we shall explain, its execution.

(2) Invalidity

(a) Attestation

24. Ili challenges Chief Justice Perese’s finding that the will was validly executed. Ms Sua-Mailo submits the Chief Justice erred in concluding that the will satisfied section 5 of the Wills Act 1975, which requires that (a) the will be in writing; (b) the will be signed by the testator in the presence of at least two witnesses who (c) must “..sign their names to the will in the presence of the testator and in the presence of each other at the same time”.
25. The attestation clause of Patu’s will expressly on its face showed compliance with all three elements of section 5 by Patu as signing testator and by the signatures of the two named witnesses, Alaifetu Enari (known as Pepsi) and Sainimere Naivila. If the recitals were correct, the will met the statutory requirements. Nevertheless, despite its unequivocal terms, both the attesting witnesses gave diametrically opposed accounts at trial about whether the recitals were in fact correct.
26. Ili relied principally on Sainimere for her case that the attestation clause was incorrect. While Alaifetu and Sainimere both accepted that they signed the will as witnesses to Patu’s signature, Sainimere’s account at trial was that the will had already been signed when she signed, Patu was asleep in a hospital bed, Maka and Luamanuvao were present and Alaifetu was absent. By contrast, Alaifetu’s account affirmed the accuracy of the attestation narrative. He said that Patu signed the will in his presence and that Sainimere signed as witness while they were all present.
27. As the Chief Justice observed, these two accounts differed starkly, and were impossible to reconcile. Only one could possibly be truthful. He accepted Alaifetu’s evidence and rejected Sainimere’s version of events. We must now evaluate Ms Sua- Mailo‘s sustained challenge to this finding.

(b) Credibility Findings

28. The date of the will, 25 September 2020, was fresh in the minds of all witnesses. It was the date on which Patu was flown to New Zealand for medical treatment. Patu had been admitted to the Intensive Care Unit at the National Public Hospital on 16 September 2020. He remained there continuously until 25 September. Patu was described as a private man. He arranged for members of his family and household employees to attend on him around the clock to provide personal care in preference to hospital staff. Two shifts were organised: the night shift was undertaken by Maka and Alaifetu; the day shift normally started around 7.00 am and was the responsibility of a number of other family members including Ili, Luamanuvao, and Patu’s housekeepers, Sainimere and Usha.
29. The shifts were informal and often overlapped. Alaifetu’s evidence was that on 25 September, in accordance with their usual practice, he remained until about 8.30 am while Maka left at about 7.00 am to take his wife to work. He recalled this sequence of events:
    • (a) During the morning, Patu gave instructions to Maka, who then left around 7.00 am;
    • (b) Luamanuvao then arrived followed at about 7.30 - 8.00 am by Ili, her sister and Sainimere;
    • (c) Patu then signed two cheques (they were to pay for the cost of his air travel to New Zealand and provide cash for miscellaneous expenses) while sitting up in bed. Ili and her sister left with the cheques and to prepare for their flight to New Zealand;
    • (d) Patu, Luamanuvao, Sainimere and Alaifetu remained, although at some time one of Ili’s employees, Sieni Tanielu, arrived. Alaifetu helped Patu get out of bed and into a chair. While Patu was seated, Luamanuvao produced a document for Patu. Patu acknowledged it was his will, read it and signed it. Patu asked he and Sainimere to sign as witnesses to his signature.
    • (e) He signed the document in the space provided, and Sainimere then did likewise. They all signed together while the document was on a table by the bed. He never read the document which was then handed to Luamanuvao;
    • (f) Later Ili arrived and he pushed Patu in a wheelchair to his car.
30. It appears that at some stage Usha was also present. She confirmed that Alaifetu was also in the hospital room when she arrived. She did not give evidence on the issue of the will signing, twice asserting in cross-examination that she remembered little. She did say that Patu was asleep at one stage but also recalled that he looked about, waved at her and gave her a high five.
31. Alaifetu rejected Ms Sua-Mailo’s propositions in cross examination that he was never present when Sainimere signed the will as a witness; that Sieni was present when the cheques were signed; and that Maka was the only person in the room when Sainimere signed.
32. The Chief Justice was satisfied that Alaifetu was a credible witness.^[7] He found him to be honest and genuine. As an example of his independence, Alaifetu maintained his account that it was Patu who asked him to witness the will, contrary to Luamanuvao’s evidence that she made the request. The Chief Justice also found that he was a disinterested witness.
33. The Chief Justice rejected Sainimere’s account that she signed the will after it had been signed and while Alaifetu was absent.^[8] He referred to the conflict between Sainimere’s assertion that Patu was asleep throughout her time in the room with the preponderance of evidence from other witnesses, including Ili, that Patu was frequently awake, signed the two cheques and gave Usha a “high five”.^[9] Ili’s account in particular of Patu’s agitation because she was running behind schedule corroborated Luamanuvao’s evidence of hearing him speaking to Ili in a loud and angry voice when she arrived. Sainimere was a lone voice in asserting that Patu was asleep throughout the morning, and the plain unreliability of her account on such a critical event justified the Chief Justice’s dismissal of it.
34. The Chief Justice also gave considerable weight to Luamanuvao’s evidence which was corroborative of Alaifetu. She said that Patu asked her to draft a new will for him on 16 September, shortly after he was hospitalised. As noted, she had drafted three previous wills for him, two after his marriage to Ili. Luamanuvao had an extensive wills and administration practice before leaving Samoa in 2001. After returning in 2017 she held only a barrister’s certificate for legal practice. Luamanuvao was familiar with Patu’s assets. She took full instruction on 16 September. Unsurprisingly, given their familial bond, she did not charge for her services or consider that they were in a formal solicitor client relationship. Her evidence was unchallenged that she read a draft of the will to Patu when they met in hospital to review it. He directed her to make two express changes which were incorporated in the final document.
35. Luamanuvao was a central witness to the circumstances surrounding the execution of Patu’s will. She wanted to ensure that Patu signed before flying to New Zealand later that day. On arrival she heard Patu speaking in a loud and angry voice to Ili. He sat up in bed to sign the cheques. Later only Luamanuvao, Alaifetu and Sainimere were present with Patu in his hospital room. Luamanuvao suggested that two nurses should formally witness Patu’s signature but he insisted that Alaifetu and Sainimere should do so.
36. In cross examination Luamanuvao admitted that Sieni was also present in the room for a time. She accepted that she asked her to witness Patu signing the will but Sieni declined because Ili had called out for her to accompany her to cash the cheques. She firmly rejected Ms Sua-Mailo’s proposition that Sieni did in fact sign a document which Luamanuvao had produced. She gave a detailed, first-hand account of the movements of Patu, Alaifetu and Sainimere and their relative physical placements in the room while he signed the will and they witnessed his signature in the presence of each other. The Chief Justice accepted Luamanuvao’s evidence. He found her narrative of events to be cogent^[10].
37. The Chief Justice rejected Sieni’s conflicting assertion of signing a document in Patu’s presence at Luamanuvao’s request on 25 September as far-fetched^[11]. He also relied on her partisan interest as Ili’s housekeeper. Ms Sua-Mailo pointed that Sieni was no longer in Ili’s employment at the time of trial. While this point is relevant, we are not satisfied that it compromises the essence of the Chief Justice’s finding. If Sieni’s account were correct, it would mean that Luamanuvao had in her possession and produced two copies of the same will for signing in quick succession in Patu’s hospital room that morning. That proposition is highly improbable and was never put to Luamanuvao.
38. Maka’s evidence was also available to assist the Supreme Court in resolving the conflict between Alaifetu and Sainimere. Maka confirmed in detail the nature and history of his long, loving and loyal relationship with Patu and his participation with Alaifetu in Patu’s night shift at the hospital between 16 and 25 September 2020. His evidence was that he left the hospital at about 7.00 am on 25 September while Alaifetu remained. On Patu’s direction he drove his partner to work and then rested before going to Patu’s house to await his discharge from hospital. Maka confirmed that after dropping off his partner he stayed at his own house until about 9.45 am and then went to Patu’s house. He did not return to the hospital until the afternoon to help Patu prepare for his flight.
39. Ms Sua- Mailo did not challenge the veracity of Maka’s account of his movements on that 25 September morning or in particular did not suggest that he alone was present with Patu when Sainimere signed the will as a witness.

(c) Appellate Review Standard

40. The test for appellate review by this Court of factual findings made at first instance is well settled by the decision in Fuimaono v Public Trustee, cited by Mr Wulf.^[12] While an appellate court may reverse a trial judge’s findings of fact, it should only do so if they are shown to be clearly wrong. The trial judge enjoys the distinct advantage which can never be replicated on appeal of seeing and hearing a witness and absorbing evidence as it is given. This principle has a special significance in a case where much of the evidence was given in the Samoan language and this Court must rely on a translation.
41. Ms Sua- Mailo realistically acknowledged the difficulties faced by Ili in reversing the Chief Justice’s credibility findings. She countered them by a submission that the findings were unreasonable. That was because the Chief Justice placed weight on the evidence of Alaifetu who, Ms Sua- Mailo submitted, was not a disinterested witness but is in fact closely connected to Luamanuvao and Maka. She also referred to passages from the evidence of Sainimere and Sieni which she said should have been accepted in preference to Alaifetu.
42. This submission falls well short of the threshold for appellate intervention. The Chief Justice enjoyed the benefit of listening to and observing key witnesses who were closely cross examined in the Samoan language at trial. Alaifetu, Luamanuvao and Maka were subjected to intensive questioning. The Chief Justice carefully weighed the conflicting accounts. His reasoned preference for the Public Trustee’s witnesses whom he found to be honest and credible could only be disturbed if we were satisfied that his findings were clearly wrong. We have independently reviewed the translated transcript. We are satisfied that the Chief Justice had a sound, indeed compelling, evidential foundation for his findings. We cannot discern any error. And Maka’s largely uncontested account added to the weight of the evidence rebutting the accounts given by Sainimere and Sieni.
43. It follows that this ground of appeal fails and that the Chief Justice’s finding that Patu’s will complied with the requirements of the Wills Act must stand.

(3) Righteousness of the Transaction

44. Ili’s third principal ground of appeal was that the Chief Justice erred in finding that Luamanuvao had discharged the burden imposed upon her as the drafter of and a beneficiary under the will of proving the righteousness of the transaction.
45. Ms Sua-Mailo devoted much of her argument to this ground of appeal. But there was no dispute about the guiding principle. Ms Sua- Mailo relied on judgment of the New Zealand Court of Appeal in Tanner v Public Trustee^[13]. That decision followed settled authority in holding that (a) the onus of proving a will lies on the party propounding it; and (b) the Court’s suspicion is aroused where the person who prepares a will takes a benefit under it. He or she must establish the righteousness of the transaction, a compendious but perhaps arcane phrase which requires the drafter to show that the instrument expressed the testator’s true will including knowledge and approval of the drafter’s benefit. In this respect, the quantum of the legacy and its proportion to the total estate are material circumstances^[14]. In Ramcoomarsingh v Administrator, a decision cited by Ms Fuimaono- Sapolu for Maka, the Privy Council noted that the degree of suspicion may be so slight as to easily dispel any disquiet, or it may be so grave as to be unremovable^[15]. Ms Sua-Mailo sought to draw factual similarities between Tanner and this case but they are of no consequence. Each case depends on its own circumstances. It is all a question of fact and degree, of assessing the true worth of the benefit within the context of the estate as a whole.
46. The Chief Justice applied the settled principles here^[16]. He concluded that the testamentary benefit to Luamanuvao was negligible. He accepted her evidence that PL was not a success, and that it would soon surrender its business licence. Its shares had no value. And Patu’s law library would be at most of sentimental value. We agree with him that Luamanuvao’s benefaction of books was near worthless. The v bequest was of negligible value in the context of Patu’s estate as a whole.
47. Ms Sua- Mailo dwelt at length on Luamanuvao’s professional status to show a high degree of suspicion about her conduct. She noted that in 2020 Luamanuvao’s practising certificate was limited to a right to practice as a barrister which did not entitle her to draft wills. That point might have had possible force if Luamanuvao was acting in a professional relationship with Patu and charging for provision of her services. But Ms Sua- Mailo’s focus on Luamanuvao’s professional status was misplaced here. It is plain beyond argument that there was no solicitor client relationship. Luamanuvao was simply acting in the capacity of Patu’s sister and confidante who was fully familiar with his affairs. She was a specialist in this area. Patu’s trust in her was shown by his request that she prepare his three previous wills. We are not satisfied that this circumstance aroused any suspicion whatsoever.
48. Finally, Ms Sua-Mailo relied on Luamanuvao’s retention of the will for 13 months after Patu’s execution of it. Her secrecy, Ms Sua- Mailo submitted, was highly suspicious when Luamanuvao should have known the prudence of depositing the will with the Public Trustee for safekeeping^[17]. She says the Chief Justice’s failure to make a finding on this point was material. We disagree. This isolated piece of evidence was of no probative value given his findings on the primary facts, particularly that the will was valid.
49. It follows that this ground of appeal must fail also.

Result

50. The appeal is dismissed.
51. The appellant is ordered to pay costs of WST5000 to each respondent plus all reasonable disbursements.
    

HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE ASHER
HONOURABLE JUSTICE YOUNG

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^[1] Sapolu v Public Trustee [2022] WSSC 78 (14 December 2022).
^[2] ibid., paragraph [12].
^[3] ibid, paragraph [89].
^[4] Section 15 Evidence Act 2015.
^[5] See Judgment, at [90] (c), (d) & (f).
^[6] See judgment, at [90] (g) & (h).
^[7] See Judgment at [90 (e)].
^[8] At [90 (f)].
^[9] Also at [42]-[48].
^[10] At [90 (a) & (b)].
^[11] At [54].
^[12] Fuimaono v Public Trustee CA 05/17 27 August 2018 at [45]-[47], following Rae v International Insurance Brokers (Nelson & Marlborough) Ltd [1998] 3 NZLR 190 (CA).
^[13] Tanner v Public Trustee [1973] NZLR 68.
^[14] Barry v Bullin [1838] EngR 1056; (1838) 2 Moo PCC 480 at p 485: cited at [70] of the judgment.
^[15] Ramcoomarsingh v Administrator General [2002] UKPC 67 at [17].
^[16] At [71]- [74].
^[17] Section 108 of the Public Trust Act allows the testator, not the drafter, to lodge the will with the Public Trustee.