In Re Estate of Gardain [2010] WSSC 135 (24 December 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

of the Estate of SELEIMA MOSE GARDAIN
nee MOSE SIONE late of Lotopa
Deceased

BETWEEN:

FALANA'IPUPU FRANK CORDTZ
of Lotopa, Retiree.
Applicant

AND:

TUSA MOSE VII of Lotopa, Planter,
MELAPE PELESA of Vaitele, Senior Loans Officer
Respondents

Counsel: F P Meredith for Applicant
R Drake for Respondents

Judgment: 24 December 2010

JUDGMENT OF SAPOLU CJ

Introduction

1. This is the first case in Samoa of a will claimed to have been lost. The applicant Falanaipupu Frank Cordtz ("the applicant") claims that the will made by her deceased maternal aunt Seleima Mose Gardain nee Mose Sione ("Seleima") on 25 December 1965 has been lost. He is therefore seeking by motion an order in the nature of a declaratory order to have the said will declared valid. He is also seeking in the same motion an order to set aside a caveat lodged by the respondents Tusa Mose Vii and Melape Pelesa ("the respondents") against the lands which comprise the estate of Seleima. The applicant's motion was strongly disputed and opposed by the respondents.
   
2. At the commencement of the hearing of these proceedings, counsel for the respondents submitted that the correct procedure the applicant should have followed was to file a motion for probate in solemn form. She cited a passage from Dobbies Probate and Administration Practice (1978) 3rd ed at p.313 which is a New Zealand textbook. Counsel for the applicant opposed the submission by counsel for the respondents. I took the view that to accede to the submission by counsel for the respondents would have meant a further adjournment of the hearing of these proceedings for the applicant to file the appropriate motion and to have such motion served on the appropriate parties. Furthermore, the passage cited by counsel for the respondents from Dobbie's Probate and Administration Practice (1978) 3rd ed p.313 does not explain what documents are to be filed in proceedings for probate in solemn form. There was also no reference in counsel's submission to the relevant law in Samoa and whether probate in solemn form exists in form or in substance under Samoan law. In any event, I was of the view that to proceed with the hearing of the applicant's motion in its present form will lead to the same result desired by the parties, namely, whether Seleima made a will as claimed by the applicant or not as claimed by the respondents.
   
3. For convenience, I have decided to set out the relevant law first, then deal with the evidence second, and then apply the standard of proof required for this type of proceedings to the relevant evidence.
   

The relevant law

(a) Procedure for bringing administration proceedings before the Court

4. The term "administration" is defined in s.2 of the Administration Act 1975 as follows:
   

" 'Administration' includes probate of the will of a deceased person, and letters of administration of the estate of a deceased person, granted with or without a will annexed, and in the case of the Public Trustee, includes an order to administer, and an election to administer."

5. The same definition of "administration" is repeated in r.3 of the Administration (Procedure) Rules 1980. On a literal reading, the definition is inclusive because of the use of the word "includes" immediately after the word "administration". It denotes that the definition is not exhaustive.
   
6. The Administration (Procedure) Rules 1980 provides for two forms of administration proceedings, non-contentious proceedings and contentious proceedings and how such proceedings are to be brought before the Court. This appears from r.4 which provides:
   

"(1) All administration proceedings of a non-contentious nature shall be commenced by way of motion ex parte in Form 1, supported by affidavit.

"(2) All administration proceedings of a contentious nature shall be commenced by notice of motion in Form 2, supported by affidavit.

"(3) In all contentious administration proceedings the evidence-in-chief of all witnesses to be called by the parties to the proceedings shall, as far as practicable, be committed to writing in affidavit form and filed in Court and copies thereof served upon all other interested parties at least 3 clear days prior to the hearing of such proceedings."

7. The form of the affidavit or affidavits required in an application for probate is provided in r.5 and it shall, as nearly as the circumstances of the case will permit, follow the form of the affidavit set out in Form 3, subject to the provisions s.45 of the Public Trust Office Act 1975. The form of the affidavit or affidavits required in an application for letters of administration is provided in r.7 and it shall, as nearly as the circumstances of the case will permit, follow the form of the affidavit set out in Form 5, subject to the provisions of s.45 of the Public Trust Office Act 1975.
   
8. So it is clear from r.4 that administration proceedings, as the term "administration" is defined in s.2 of the Administration Act 1975 and r.3 of the Administration (Procedure) Rules 1980, shall be commenced in one of two ways. If the administration proceedings are non-contentious, then such proceedings shall be commenced by ex parte motion supported by affidavit. If the administration proceedings are contentious, then such proceedings shall be commenced by notice of motion supported by affidavit. An affidavit in support of administration proceedings for probate of a will shall be in the form provided in r.5 whereas an affidavit in support of administration proceeding for letters of administration shall be in the form provided in r.7.
   
9. As the present proceedings are of a contentious nature the requirements of r.4 (2) and (3) should have been followed. In doing so, one should have regard to r.19 which provides:
   

"In matters for which no specific provision is made in these rules in respect of probate or administration proceedings, the general provisions of the rules providing for the service, setting down and conduct of actions before the Supreme Court, as far as they are applicable and with the necessary modifications, shall apply".

10. I need not, for present purposes, refer to the provisions of the Supreme Court (Civil Procedure) Rules 1980 relating to service of an action or for setting down an action. I also need not refer to the provisions of the Supreme Court (Civil Procedure) Rules 1980 relating to the conduct of an action except r.13 which provides that every action shall be commenced by filing a statement of claim. I mention this because when I come to the New Zealand authorities on a motion for probate in solemn form, those authorities show that in New Zealand a statement of claim needs to be filed with such a motion.
    
11. What should be noted here is that nowhere in our Administration Act 1975, Administration (Procedure) Rules 1980, or even our Supreme Court (Civil Procedure) Rules 1980 is there any reference to "probate in solemn form". Our Wills Act 1975 also contains no such reference. This is why I was basically reluctant to accede to the submission of counsel for the respondents at the commencement of the hearing of the present proceedings that the applicant should have commenced his proceedings by filing a motion for probate in solemn form citing Dobbie's Probate and Administration Practice (1978) 3rd ed which, as already mentioned, is a New Zealand textbook. It would have meant further delay while both counsel carry out further research into the relevant law.
    
12. Anyway, in the development of Samoan law the Samoan Courts have generally sought guidance from the jurisprudence of other jurisdictions including New Zealand. So the submission by counsel for the respondents serves the purpose of providing a starting point for inquiry into an area where there has been no previous decision of the Samoan Courts.
    
13. It appears from some of the relevant New Zealand texts that in New Zealand an application for probate of a will may be made either in common form or solemn form. As stated in Garrow and Alston's Law of Wills and Administration (1984) 5th ed at para [44.151], p. 544:
    

"A will may be proved either in common form or solemn form. Where probate in common form is applied for, the procedure is by notice of motion and the matter is dealt with in Chambers. The detailed procedure is fully set out in RR517 to 531CC of the Code of Civil Procedure".

14. The rules of the Code of Civil Procedure (NZ) mentioned in the above passage may have changed.
    
15. The learned authors of Garrow and Alston's Law of Wills and Administration (1984) 5th ed then said at para [44.42], p. 557 in relation to probate in solemn form:
    

" 'An executor, instead of proceeding to obtain probate by order in Chambers, may, and if a grant of probate is opposed, and a Judge orders the right to be tried by action, must obtain a judgment of the Court for the issue of probate': R531Q. In such circumstances the proceedings are the same as in an ordinary action. The writ and statement of claim must be served upon all persons against whom it is sought to establish the will: R531 R: see also Denby v Denby (1905) 7 GLR 6R 616, and Re Millen (deceased) [1975] 2 NZLR 605".

16. In Nevill's Concise Law of Trusts, Wills and Administration in New Zealand (1980) 7th ed, the learned author stated at p. 270:
    

"The normal method of obtaining probate is by motion in Chambers. This is known as Probate in Common Form. Although Supreme Court Judges have jurisdiction to grant Probate in Common Form, certain registrars of the Supreme Court also have jurisdiction and in practice they deal with all save exceptional applications. However, an executor may, and if there is any opposition to the grant and the Court so orders, must proceed to obtain Probate in Solemn Form. This takes the form of an ordinary action. The usual reasons for probate being applied for in solemn form are:

(a) Doubt as to due execution;
(b) Allegations of lack of testamentary capacity; and
(c) Allegations of fraud or undue influence.

"The writ and statement of claim must be served on all persons against whom it is sought to establish the will (RR 531 Q and 531 R). As to who should be served or joined as parties, see Re Millen (deceased) [1975] 2 NZLR 605. The advantage to the executor of obtaining a grant of probate in solemn form is that it cannot be recalled on any ground except the discovery of a will later in date than the will of which probate has been granted (R 531 S), unless the judgment was obtained by fraud"

17. More recently in Forsyth's Outline of the Law Relating to Trusts, Wills, Executors and Administrators (2002) 5th ed at p. 69, the learned author points out that in New Zealand probate is normally obtained by the executor filing the will of the testator or testatrix in the High Court together with an ex parte notice of application for probate and an affidavit to lead grant of probate. The learned author then states at p. 70:
    

"Provided that the will has been properly drawn and correctly executed, the Court will usually grant probate on the application and affidavit filed by the executrix without any appearance by her or further proof being required. Such a grant is called Probate in Common Form"

18. Further on at pp. 70-71, the same learned author goes on to state:
    

"A person who objects to probate of any given will being granted can, at any time before it is granted, lodge a caveat with the High Court. For example, a person who has been left out of the will may allege that the testator lacked testamentary capacity... When there is some doubt about the validity of the will or its due execution, that is, the Registrar is not satisfied and the Court considers that the will is irregular or suspicious, the executor may have to apply for probate in solemn form. The matter will then be tried in Court before a Judge, and all parties likely to have an interest in the estate must be served with notice of the hearing. If the Judge grants probate in solemn form, this finally resolves all questions about the validity of the will. Apart from cases in which the grant has been obtained by fraud, the grant can be recalled by the Court only on proof of a later will or proof that the testator had revoked the will, whereas probate in common form can be recalled on other grounds."

"The number of applications for probate in solemn form is relatively small but, an executor is wise to so apply voluntarily when he has any doubts about the validity of the will, because he can then carry on with the administration without fear of this being questioned later. Such applications are made by filing a statement of claim and notice of proceeding... The executor may be ordered by the Court to so apply if anyone lodges a caveat."

19. Specifically in relation to the grant of probate of a lost will, the learned authors of Garrow and Alston's Law of Wills and Administration (1984) 5th ed said in para [44.31] at p. 553:
    

"In 'clear cases' the Court will grant probate of a lost will in common form upon motion in the ordinary way without the consent of all persons interested in the estate... But except in such 'clear cases' the Court will require the will to be proved in solemn form unless all the persons interested on an intestacy consent to probate in common form: In bonis Pearson [1896] UKLawRpPro 41; [1896] P 289."

20. In Dobbie's Probate and Administration Practice (1978) 3rd ed, para [321] at pp. 191-192, it is there stated:
    

"In clear cases – that is, cases in which there is convincing proof of the existence and execution of the original will, of its non-revocation, of its loss, and of its substance –the Court may grant probate of its substance or contents on motion without calling for proof in solemn form, and this is so even though those who would be entitled to share in the estate in the event of an intestacy have not all consented to the application: In bonis Apted [1899] UKLawRpPro 33; [1899] P 272; In re Ayrton [1918] GLR 62; In re Ross [1915] NZGazLawRp 62; (1915) 34 NZLR 543. But where it appears that the dispositions under the will differ from what would have been the result if an intestacy, the Court will require notice of the application to be given to those who would be entitled on intestacy: In re Booker [1912] NZGazLawRp 58; (1912) 14 GLR 524"

21. The editions of the New Zealand texts I have referred to are the only editions of those texts available to me. Most of the old English and New Zealand cases cited in those texts are not available in the Court's library. However, I have no reason to doubt the correctness of the law I have cited from those texts at the times the texts were written. It is highly likely that there have been changes and amendments to the law since the old texts were written. But that is not my concern here. What I am concerned with here are (a) what guidance can be obtained from New Zealand law for the purpose of administration proceedings in terms of r.4 and r.19 of our Administration (Procedure) Rules 1980 and (b) to see what is involved in proceedings for probate in solemn form under New Zealand law as counsel for the respondents has raised that the correct procedure the applicant should have followed in these proceedings was to file a motion for probate in solemn form of the will of Seleima which the applicant claims to have been lost and which the respondents claim to have never existed.
    
22. From what has been said, it is clear that these are administration proceedings of a contentious nature because the applicant claims that Seleima had made a will which has been lost and the respondents counterclaim that Seleima never made a will. It follows that in terms of r.4 (2) of the Administration (Procedure) Rules 1980 the applicant should have commenced proceedings by filing a notice of motion in Form 2 of the Rules supported by affidavit. A statement of claim should also have been filed: r.19 of the Rules; Garrow and Alston's Law of Wills and Administration (1984) 5th ed para [44.42], p. 557; Nevill's Concise Law of Trusts, Wills and Administration in New Zealand (1980) 7th ed, p. 270; Forsyth's Outline of the Law Relating to Trusts, Wills, Executors and Administrators (2002) 5th ed, p. 69. The notice of motion, supporting affidavit, and the statement of claim should then have been served on all interested parties who in this case would be those persons with an interest in the estate of Seleima on an intestacy: r.19 of the Rules and the textbook authorities just cited. The evidence of all the witnesses to be called in support of or in opposition to the motion should then be committed to affidavit form as required by r. 4 (3). The matter would then proceed to trial as a trial of an ordinary action. This procedure is similar to the procedure in New Zealand for obtaining a grant of probate in solemn form as it is shown from the New Zealand authorities I have cited. But the term "probate in solemn form" is not used in administration proceedings in Samoa.
    
23. If the applicant's administration proceedings had been of a non-contentious nature, then in terms of r.4 the applicant would have had to file an ex parte motion in Form 1 of the Rules supported by affidavit. The motion will be dealt with in Chambers and probate granted to the applicant. This procedure is similar to the procedure in New Zealand for obtaining a grant of probate in common form as it is shown from the above – cited New Zealand authorities.
    
24. The procedure followed by counsel for the applicant in these proceedings does capture the substance, though not the form, of the procedure for contentious administration proceedings provided in r.4 (2) and (3) and r.19 of our Administration (Procedure) Rules 1980. It has, in any event, not resulted in a miscarriage of justice.
    

(b) Requirements to be established to prove a lost will

25. In the State of New South Wales, Australia, the requirements to be established in order to prove a lost will and obtain probate thereof were formulated by Young J in Curley v Duff (1985) 2 NSWLR 716 at pp. 718-719. Due to an amendment to the Wills, Probate and Administration Act 1898 (NSW), the formulation by Young J was modified in Cahill v Rhodes [2002] NSW SC 561 where Campbell J said at para 55:
    

"To take account of section 18A, the formulation of the five requirements which Young J laid down in Curley v Duff needs to be modified as follows:

"First it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills; third, the presumption that when a Will is not produced it has been destroyed must be overcome; fourth, there must be evidence of its terms; and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will".

26. In New Zealand, the requirements to be established to prove a lost will were set out in Palmer v Smedley [1974] 1 NZLR 751 (cited by counsel for the applicant) where Mahon J said at p. 753:
    

"(1) That the deceased executed a Will.

"(2) That it was duly subscribed and attested by witnesses.

"(3) That the contents of the lost will was in accordance with the epitome.

[reconstructed summary] presented.

"(4) That if the loss of the will raised the presumption that it had been destroyed by the deceased animo revocandi then that presumption was rebutted by the evidence"

27. It should be clear that the formulation of the requirements to be established to prove an alleged lost will provided in Cahill v Rhodes [2002] NSWSC 561 is not exactly the same as the formulation provided in Palmer v Smedley [1974] 1 NZLR 751. In my respectful view, the formulation in Cahill v Rhodes [2002] NSWSC 561 is to be preferred but its second requirement should not be applicable to Samoa. This is the requirement that it must be shown that the will or a document purporting to embody the testamentary intentions of the deceased must be shown to have revoked all previous wills. A lay person who makes his own will or some other document purporting to embody his testamentary intentions may not include words to the effect that that is his last will or testamentary document and it revokes all his previous wills or testamentary documents. This may be because he does not understand the significance of those words or he may not have made a previous will and therefore he does not think that it is necessary to include words of revocation because he has no previous will to revoke. In Palmer v Smedley [1974] 1 NZLR 751 at p. 753 there is no requirement that a person who is applying for probate of a lost will needs to show that the lost will revokes all previous wills. If probate of a lost will is granted but a subsequent will by the testator is later discovered, proceedings can be taken to recall the probate already granted. So the formulation of the requirements to be established to prove a lost will which is given by Campbell J in Cahill v Rhodes [2002] NSWSC 561 at para. 55 is to be preferred except for the second requirement which, in my respectful view, should not be applicable to Samoa.
    

(c) Onus and standard of proof in cases of lost wills

28. The onus of proving the existence, due execution, and the contents of a lost will lies on the party who seeks to set up the will and to obtain a grant of probate thereof. Likewise, the onus of rebutting the presumption that the deceased destroyed the will animo revocandi lies on the same party. So in an ordinary action to prove a lost will, the party who bears the onus of proof is the plaintiff, that is, the person who is setting up the will: see, for example, Palmer v Smedley [1974] 1 NZLR 751 at p. 753.
    
29. The standard of proof in proceedings to prove a lost will is the civil standard which is on the balance of probabilities. In Cahill v Rhodes [2002] NSWSC 561 at para. 56 Campbell J cited with approval from the unreported judgment of Hodgson J in In the Estate of Ralston on the standard of proof that is required in the case of a lost will. Campbell J said:
    

"56. In In the Estate of Ralston (Supreme Court of NSW, 12 September 1996, unreported) Hodgson J dealt with the standard of proof applicable in such cases as follows:

"... there should be clear and convincing proof similar to that appropriate to other classes of case where the Court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in a formal way (see, for example Pukallus v Cameron [1982] HCA 63; 56 ALR 907 at 911; Blackney v Savage and Sons [1973] VicRp 37; (1973) VR 385 at 389; Maks v Maks 6 NSWLR 34 at 36; Whittet v State Bank of NSW 24 NSWLR 146 at 151 – 4), or where the Court is asked to make a finding concerning a legal transaction by a deceased person (see, for example, Birmingham v Renfew [1937] HCA 52; 57CLR 666 at 674, 681 – 2).

"However, this does not mean that what is required is other than proof on the balance of probabilities: cf Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170-1. In a case such as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate ..."

30. The above passage from the unreported judgment of Hodgson J in In the Estate of Ralston was also cited with approval in the judgment of Austin J in Payten v Perpetual Trustee Company [2005] NSWSC 345 at paras 90-92. In Payten v Perpetual Trustee Company, Austin J further stated at para 92:
    

"A similar approach was taken by Parker J in Dalton v Dalton (Supreme Court of Western Australia, 24 December 1997, unreported; BC 9704735), His Honour concluding by saying (BC 9704735 at 4) that in applying the balance of probabilities standard, 'the Court must be vigilant, being fully cognisant of the dangers of error and fraud, and the gravity of the consequences flowing from any finding made'".

(d) Proof of the existence of a lost will

31. To prove the existence of a will claimed to have been lost, the learned author of Dobbie's Probate and Administration Practice (1978) 3rd para [89] at p. 64-65 cited from the old English case of Mackenzie v Yeo (1842) 3 Curt 125; 163 ER 612 where the Court said:
    

"Where the question is whether the will was made or not, all the circumstances, probable and improbable, are to be taken into consideration and the onus probandi is... on the party who sets up the paper, to prove, as far as the case admits, that it is the act of the deceased".

32. Dobbie then went on to say at para [49] p. 65:
    

"Declarations made by testator after the execution of an alleged will are not admissible to prove the due execution of the will, nor to prove its existence: In bonis Ripley (1858) 1 Sw & Tr 68; Sugden v Lord St Leonards [1874-80] A11 ER Rep. 21; [1876] UKLawRpPro 17; 1 PD 154"

(e) Proof of the contents of a lost will

33. Proof of the contents of a lost will may best be found in Whiteley v Clune (No.2); The Estate of Brett Whiteley (Supreme Court of New South Wales, 13 May 1993, unreported) where Powell J after reviewing the relevant cases summarised the current status of the presumption of destruction, animo revocandi, in four propositions. In his fourth proposition, Powell J said:
    

"Where a will is lost or destroyed, and the presumption of destruction, animo revocandi, either does not arise or is rebutted, its contents may be proved by parol evidence. The 'rules' laid down in Sugden v Lord St Leonards [1876] UKLawRpPro 17; (1876) 1 PD 154; [1874 – 80] A11 ER Rep 21 are as follows:

"a. the contents of any lost instrument, including a will, may be proved by secondary evidence;

"b. written and oral declarations of a testator made before, or after, the execution of the will are admissible as secondary evidence of its contents;

"c. the evidence of a single, although interested, witness is admissible to prove the contents if his veracity and credibility are unimpeached;

"d. probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirety"

34. The above passage was cited with approval in Cahill v Rhodes [2002] NSWSC 561 per Campbell J; Payten v Perpetual Trustee Company [2005] NSWSC 345 per Austin J; re Jack Hamilton Deceased [2007] SASC 362 per Gray J. The fourth proposition stated above by Powell J in Whiteley v Clune (No.2); The Estate of Brett Whiteley (supra), and which was derived from Sugden v Lord St Leonards (supra), has been recognised as creating a new exception to the hearsay rule: Cross on Evidence (1996) 5th Aust ed para [33315] at p. 911; Cross on Evidence (1997) 6th NZ ed para 17.6 at p. 581. In both those editions of Cross on Evidence, it is there stated in para [33315] and para [17.6] respectively:
    

"The oral or written statement of a deceased testator after the execution of his will is admissible at common law as evidence of the contents, but not the execution, of the will: Sugden v Lord St Leonards [1876] UKLawRpPro 17; (1876) 1 PD 154; [1874-80] A11 ER Rep 21".

(f) Rebuttal of the presumption of destruction of a lost will

35. The four propositions in which Powell J summarised the current status of the presumption of destruction of a lost will in Whiteley v Clune (No 2): The Estate of Brett Whiteley (Supreme Court of New South Wales, 13 May 1993, unreported) were set out as follows:
    

"The present position would now seem to be as follows:-

1. although, where a will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted;
   
2. the strength of the presumption depends upon the character of the testator's custody over it (Sugden v Lord St Leonards [1876] UKLawRpPro 17; (1876) 1 PD 154; Allan v Morrison [1900] UKLawRpAC 41; [1900] AC 604; McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434;
   
3. where the will makes a careful, and complete, disposition of the testator's property, and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist (Sugden v Lord St Leonards (supra); Finch v Finch (1876) LR 1P and D 371);
   
4. where a will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence..."
   

36. In re Jack Hamilton Deceased [2007] SASC 362, Gray J, after referring to the above passage, said at para 34:

"The onus of rebutting the presumption falls on the party seeking to have the copy will admitted to probate: see, for example, Allan v Morrison [1900] UKLawRpAC 41; [1900] AC 604; In the Will of Molloy [1969] 1 NSWLR 400. More recent authorities establish that the appropriate standard of proof is the ordinary civil standard – on the balance of probabilities: Whiteley v Clune (No 2): The Estate of Brett Whiteley (13 May 1993, unreported Supreme Court of New South Wales) at [26]; In the Estate of Wipperman: Wissler v Wipperman [1953] 2 WLR 706; Cahill v Rhodes; Rhodes v Cahill [2002] NSWLR 561 at [56] (Campbell J). However, the evidence to rebut the presumption should be 'clear and convincing': In the Estate of Ralston (12 September 1996, unreported Supreme Court of New South Wales) (Hodgson J). As Campbell J observed in Cahill v Rhodes, Rhodes v Cahill [2002] NSWSC 561 at [56]:

"[A] case as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate ..."

(g) Proof of execution of a lost will

37. As already pointed out, "the oral or written statement of a deceased testator after the execution of his will is admissible at common law as evidence of the contents, but not the execution, of the will: Sugden v Lord St Leonards [1876] UKLawRpPro 17; (1876) 1 PD 154; [1874 – 80] All E R Rep 21." This has been recognised as a new exception to the hearsay rule: Cross on Evidence (1996) 5th Aust ed para [33315] at p. 911; Cross on Evidence (1997) 6th NZ ed para 17.6 at p. 581. However, by statutory amendments in the United Kingdom, Australia, and New Zealand post-testamentary declarations in writing by a deceased testator may now be admissible to prove execution of a lost will: Cross on Evidence (1996) 5th Aust ed para [33325] at pp 912-913; Cross on Evidence (1997) 6th NZ ed para 17.6 at p.581.

38. In Cross on Evidence (1996) 5th Aust ed para [33325] at pp.912-913 the learned author states:
    

"[It] is important to emphasise the fact that, under this exception to the hearsay rule, the post-testamentary declarations of a deceased testator are admissible as evidence only of the contents of the deceased's will. They have not been received to prove execution, alteration or revocation in accordance with the Wills Act 1837 (UK); nor can they be received in order to establish that a will was executed in consequence of fraud or undue influence. If the declarations were in writing they may be received under the Evidence Act 1938 (UK) and its Australian equivalents to prove execution or for any of the other purposes that have been mentioned"

39. The equivalent New Zealand statutory provision is s.3 of the Evidence Amendment Act (No 2) 1980: Cross on Evidence (1997) 6th NZ ed para 17.6 at p.581. Whether we can use statutory developments elsewhere as applied in cases before the Courts in those jurisdictions to inform and feed the development of our own common law in a particular area is a matter that requires careful consideration. But I am of the view that where appropriate it can be done: see L v L [1994] WSCA 3; Alesana v Samoa Observer Co Ltd [1998] WSSC 1; Corporation of the Presiding Bishop of Jesus Christ Latter Day Saints v McLean [2006] WSSC 10.

The evidence

40. The central issue in these proceedings is whether Seleima made a will as claimed by the applicant or not as claimed by the respondents. There was strong disagreement between the parties on this issue. Even though there was much dispute during the trial as to whether Seleima had the necessary testamentary capacity to make a will, that dispute related to the central issue of whether or not Seleima made a will. Doubts were also raised on behalf of the respondents about the contents of the document which the applicant claims to be a verbatim reproduction of the terms of Seleima's will which has been lost. However, this was more a subsidiary issue. So in terms of the requirements to be established to prove a lost will as set out in Cahill v Rhodes [2002] NSWSC 561 para 55, the ones which are in issue in this case are: (a) whether there actually was a will or a document purporting to embody the testamentary intentions of a deceased person, and (b) if there was such a will or document, whether there is evidence of its terms. The onus of proof is on the applicant who is the party seeking to confirm the alleged lost will. The standard of proof is on the balance of probabilities. But as Hodgson J said In the Estate of Ralston (Supreme Court of NSW, 12 September 1996, unreported) in a passage which has been cited with approval in other New South Wales cases;
    

"[There] should be clear and convincing proof similar to that appropriate to other classes of case where the Court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in a formal way,...or where the Court is asked to make a finding concerning a legal transaction by a deceased person ...

"However, this does not mean that what is required is other than proof on the balance of probabilities...In a case such as this, I believe that what is required is that the party bearing the onus of poof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate ..."

41. Furthermore, in Payton v Perpetual Trustee Company [2005] NSWSC 345 Austin J added by saying at para 92:

"A similar approach was taken by Parker J in Dalton v Dalton... that in applying the balance of probabilities standard, 'the Court must be vigilant, being fully cognisant of the dangers of error and fraud, and the gravity of the consequences flowing from any finding made..."

42. As the evidence shows, one Mose Sione Paice ("Mose") had owned lands at Lotopa and Puipaa. He died intestate in or about 1909 leaving six children. His land at Lotopa comprised of just over seven and three quarter acres but the area of his land at Puipaa does not appear from the evidence. Upon the death of Mose his lands passed to his six children. Administration of Mose's estate was not sought until many years later and was granted on 24 November 1980.

43. One of Mose's children was his daughter named Seleima whose share of her father's lands is the subject of these proceedings. Mose's daughter Melina was the grandmother of the applicant. His daughter Melape was the grandmother of the respondent Tusa Mose Vii and the great grandmother of the respondent Melape Pelesa. So the applicant and the respondents are related, all being descendants of Mose.

44. Seleima married a European and lived with her husband at Pesega. She had no children from her marriage. When Seleima's husband died in or about 1932, she returned to her father's land at Lotopa in 1935 and lived with her sister Melina's daughters Mega and May (Me) in the same open Samoan house said to be owned by Mega who was the mother of the applicant. Seleima's sister Melina had already died in 1925. According to the applicant's oral testimony, his mother Mega died in 1963. This is inconsistent with what the applicant says in his affidavit of 11 February 2009 that his mother was still alive at the time of Seleima's death. Seleima continued to live at Lotopa until she died on 24 March 1966 when she was 88 years old. So she must have been 87 years old by 25 December 1965 which is the date she is said to have made her will. Seleima was survived by her niece May, the applicant, and the applicant's siblings who were all living in the same Samoan house at Lotopa at the time of her death.

45. The applicant claims that before Seleima died on 24 March 1966 she had made a will on 25 December 1965 but the will has been lost. In the alleged will, Seleima is said to have devised her share in her father's lands at Lotopa and Puipaa to May, the applicant, and the applicant's siblings who is his brother and sister. The evidence on behalf of the applicant to establish his claim consists of affidavits by the applicant, a statutory declaration by the witness Paul Nansen ("Paul"), who was married to the applicant's sister Sarah, and the oral testimonies from the applicant himself and Paul. The applicant also sort to rely on a statutory declaration said to have been made on 29 January 1996 by one Pesaleli Leasi who was a Methodist pastor at Lotopa and claimed by the applicant and the witness Paul to have been one of the three attesting witnesses to Seleima's will. The applicant further sought to rely on a statutory declaration dated 22 March 1999 said to have been made by one Rachel Isaac who was the secretary of the solicitor to whom the applicant said he had given Seleima's will in 1976 or 1977 to probate. The said Pesaleli Leasi and Rachel Isaac have both passed on but it is not clear when they died. Counsel for the respondents objected to the admissibility of these two statutory declarations on the ground that they are both hearsay. After careful consideration, I have decided that the two statutory declarations are hearsay and do not fall within any of the exceptions to the hearsay rule. Both are therefore excluded. That leaves only the evidence of the applicant and the witness Paul in support of the applicant's claim that Seleima made a will but it has been lost.

Oral testimony by the witness Paul Nansen

46. The witness Paul testified that he joined the applicant's family at Lotopa in 1960 when he married the applicant's sister Sarah. Paul, Sarah and their two children lived in the same Samoan house with Seleima, the applicant, the applicant's other sibling, and the applicant's aunty May. At that time Paul must have been about 24 years old because he was born in 1936. Seleima was then 82 years old. Paul said that in spite of Seleima's old age, she was physically and mentally fit. Under cross examination he denied that from 1963 until she died in 1966, Seleima was bedridden and required assistance to sit her up. Paul said that up to one week before Seleima died she was still physically fit and able to walk around. Except for the occasional flu, Seleima was physically strong and free from illnesses. He also mentioned that Seleima took three days to cut down a big lega that was in front of their house. Seleima then cut up the lega into pieces. From Paul's evidence it appears that happened sometime in 1963, 1964, or 1965 when Seleima was 85, 86, or 87 years old. I find this a little bit difficult to believe. Paul further said that before Seleima died she had the flu and then she went into a coma for about a week before she died.

47. The witness Paul further testified that on 25 December 1965 their family at Lotopa had a Christmas lunch. Present at that lunch were Paul, his wife Sarah, Paul's children, May the applicant's aunt, Seleima, and the said Pesaleli Leasi who was the Methodist pastor at Lotopa at the time. The applicant was not present. Under cross-examination, Paul initially said that it was after their Christmas lunch that Seleima wrote her will on the back of the last leaf of her bible which was blank. Later on under cross-examination, Paul said that Seleima wrote her will in her bible before the lunch but she went and got her bible after the lunch. The will, according to Paul, was then attested by himself, May, and Pesaleli Leasi after Seleima had read her will to them and asked them to witness it. Seleima then gave the bible to May to look after. When Seleima died in 1966 May continued to keep the bible which contained the will.

48. Paul further testified that when he had spare time he would send his wife to May for the bible which contained Seleima's will for him to read and every time he read the bible he would not miss reading Seleima's will in it. After reading the bible and Seleima's will, Paul said he would give the bible back to his wife to return to May. I must say that I do not feel comfortable with this part of Paul's evidence. It is somewhat odd that Paul who was living with his wife and children in the same open Samoan house with May had to send his wife to May for the bible every time he wanted to read the bible and then after he had read the bible he would ask his wife to return it to May. And Paul said he read the bible which contained Seleima's will very often. Paul never explained why he had to send his wife to May for the bible and after he had read the bible sent his wife again to return the bible to May. I would have thought that as Paul and his wife were living in the same open Samoan house with May all that Paul needed to do was to ask or call out to May for the bible for him to read and then give the bible back to May after he had read it. It seems unrealistic for Paul to send his wife to May for the bible every time he wanted to read the holy book and then sent his wife again to return the bible to May after he had read it even though they were all living in the same Samoan house. Paul could have simply stood up and get the bible himself from May and then return the bible himself after he had read it. There was no distance for him to walk because he and May were living in the same house.

49. Even more strange and incredible is Paul's evidence that he never told his wife at any time whilst they were together as husband and wife that she was a beneficiary under the alleged will of Seleima notwithstanding his evidence that before he, May, and Pesaleli Leasi attested Seleima's will, Seleima first read out the will to them. This is also notwithstanding Paul's evidence that he very often read the bible which contained Seleima's evidence and every time he read the bible he would not miss reading the will of Seleima. If it is true that Seleima made a will and Paul's wife was one of the beneficiaries mentioned in it, I would have thought that that should have been a very important matter to Paul and his wife that Paul would be expected to tell his wife about it as he was, according to his own evidence, well aware of the contents of the will. Yet from 25 December 1965 when Seleima is alleged to have made a will, to 1968 when Paul and his wife left Lotopa, and then to 1970 when they separated, Paul said he never told his wife at any time about the contents of the will or that she was one of the beneficiaries in the will. I find this prolonged silence on the part of Paul over a period of about five years for no acceptable reason at all simply incredible. Under cross-examination when Paul was asked about where his wife was on 25 December 1965 when Seleima made her will, he said his wife and her children had gone somewhere else at that time. So that is why his wife never knew about the making of Seleima's will.

50. I also find it difficult to believe that May never told Paul's wife about Seleima's will even though they were living in the same house from 1965 to 1968. I do not believe that the saying that "nothing is secret in Samoa" does not apply here, if indeed Seleima made a will.

51. Furthermore, Paul said that he never told the applicant about Seleima's will or that he was a beneficiary in the will even though Paul and his wife and children were living in the same open Samoan house with the applicant until they left Lotopa in 1968. Again, I find it difficult to believe this. Paul also said that he had read the will of Seleima so often that he knows its contents by heart. However, when he was asked to recite the contents of the document that he and the applicant claim to be an exact reproduction of the words alleged to have been used by Seleima in her lost will he was not able to do so. He was only able to recite a few parts of the document but not all.

52. The said document is also not a copy of Seleima's will alleged by Paul and the applicant. It also does not appear from the evidence for the applicant who typed the words in the said document, when those words were typed, the circumstances under which they were typed, and what source they were taken from. In other words, the author of the words in the said document is unknown and therefore cannot be the subject of cross-examination by counsel for the respondents. That being so, it is arguable that the document is hearsay. However, the admissibility or otherwise of the said document was not made an issue in these proceedings. Be that as it may, all of this must affect the weight, if any, to be given to this document as evidence to prove that Seleima actually made a will as claimed by Paul and the applicant.

53. As Paul's evidence also shows, the applicant was not present at their family's Christmas lunch on 25 December 1965 when the alleged will was written by Seleima on the back of the last leaf of her bible. Paul's wife was also not present at that point in time as she was gone elsewhere with her children. That is why the applicant and Paul's wife were not aware of the making of Seleima's will. So the only people who were present at the time when Seleima made her will were Paul himself, May, and Pesaleli Leasi and it was the three of them who, according to Paul's evidence, witnessed Seleima's will. Of those people, Seleima, May, and Pesaleli Leasi have passed on but only Paul is still alive. May was the only beneficiary mentioned in the will who was allegedly present when the will was made but she died in 1976 and therefore cannot appear to give evidence. This part of Paul's evidence also requires close scrutiny as, on his own evidence, Paul would be the only person who is still alive who was present when Seleima is said to have made a will.

54. Overall, I must say that the evidence given by Paul does not provide clear and convincing proof on the balance of probabilities that Seleima did in fact make a will on 25 December 1965. Even if it is assumed that such a will was made, Paul's evidence does not provide clear and convincing proof on the balance of probabilities of the terms or contents of the will.

Oral testimony by the applicant

55. The applicant testified that the first time he became aware of Seleima's will was in 1976 when his aunty May gave him the bible which contained Seleima's will about a month before she died. So it appears from the applicant's evidence that for about eleven years from 1965 to 1976 when May died, May never told him about Seleima's will and that he was one of the beneficiaries in the will even though they were living in the same open Samoan house doing the things that a Samoan family would normally do together during all that time. I must say that I find it difficult to accept that May never told the applicant about Seleima's will during all that time if indeed Seleima made a will in 1965. There was no explanation given as to why May did not tell the applicant about Seleima's will during all those years just as there was no acceptable explanation given by Paul as to why he never told his wife or the applicant about the will. This is rather strange. To my mind, the reason why May and Paul never told the applicant about Seleima's will during all the years they were living together in the same house is because there was no such will to tell the applicant about. At least there is a serious doubt about the matter.
    
56. The applicant also testified that in 1976 or 1977 he took the bible which contained Seleima's will to a solicitor in Apia to probate. He followed up on his instructions to the solicitor on a number of occasions during which period of time he became well acquainted with the solicitor's secretary. On one of his visits in 1979, he said he was informed by the solicitor's secretary that the bible containing the will had been misplaced and could not be found. However, the solicitor's secretary gave him a document. This is the document which the applicant now says is an exact reproduction of the words used in Seleima's will. The applicant said that after his aunty May had given him the bible containing Seleima's will in 1976, he had the opportunity to read through the will. So he can confirm that the words in the said document are exactly the same as the words that were in the will. In reply to a question from the Court, the applicant said he does not know who typed that document. Perhaps it was the solicitor's secretary or another person in the solicitor's office but the solicitor's secretary passed on some years ago and cannot appear to give evidence.
    
57. So if the applicant was told by the solicitor's secretary in 1979 that the bible containing Seleima's will was lost and she gave the applicant the said document at that time, then it was not the time that the said solicitor moved to New Zealand that that happened as submitted for the applicant. The reason is that I know that the said solicitor was still in private practice in Samoa in 1983. So he must have moved to New Zealand after 1983 but not 1979. Perhaps if the said solicitor had been called as a witness by the applicant in these proceedings, he would be able to confirm the exact date he moved to New Zealand and whether the applicant did instruct him in 1976 or 1977 to probate Seleima's will and gave him the bible said to have contained the will.
    
58. Under cross-examination by counsel for the respondents, the applicant said that when he was given the said document by the solicitor's secretary, he brought the document and gave it to the Public Trust Office: p.39 of the transcript of the evidence. In re-examination, the applicant also said that after he received the said document from the solicitor's secretary, he brought it to the Public Trust Office: p.41 of the transcript of the evidence. If this is correct, then that must have happened in 1979 because the applicant said in his oral testimony that it was in 1979 that the said document was given to him by his solicitor's secretary: p. 28 of the transcript of the evidence.
    
59. But it appears clear from the applicant's affidavit of 11 February 2009 that the Public Trustee at the time he took the said document to the Public Trust Office was Mr. Toailoa. If that is so, Mr. Toailoa did not become Public Trustee until sometime after 1992 as pointed out by the Court to the applicant at the trial: p.22 of the transcript of the evidence. So Mr. Toailoa was not the Public Trustee in 1979. Mr. Toailoa had not even become a lawyer at that time. It is therefore not clear when the applicant gave the said document to the Public Trust Office. But it could not have been 1979 because Mr. Toailoa was not the Public Trustee at that time.
    
60. Furthermore, if it was in 1979 that the said document was given by the solicitor's secretary to the applicant, then there is no reasonable explanation from the applicant as to why up to now he has not filed a motion to probate the said document alleged by him to contain the exact words that were in Seleima's lost will. The applicant puts the blame for the delay on his original solicitor and the Public Trust Office. But there is no explanation given as to why those people never moved for probate of the said will. Was it because they did not believe or had doubts that the will claimed by the applicant was ever made or was it because of some other reason? Instead, in 2003 the applicant moved for letters of administration of Seleima's estate to be granted to him.
    
61. In relation to the physical and mental health of Seleima the evidence given by the applicant under cross-examination is very much the same as the evidence given by the witness Paul. The applicant testified that Seleima was always physically and mentally fit except for the occasional flu which was uncommon and far between. He said that Seleima was able to move around, walk to the road, weed the grass at her garden, and enjoyed her Samoan tobacco of which she was very fond. So Seleima was always in a physically and mentally fit condition in spite of her old age. It was not until the week before she died that Seleima again had the flu and then went into a coma from which she did not recover until she died on 24 March 1966 at the age of 88 years.
    
62. Perhaps I should mention here that more time was spent in cross-examination concerning Seleima's physical and mental condition than it was necessary. Even though in the exceptional case the physical and mental condition of the deceased may be relevant to the question of whether he or she actually made a will, the testamentary capacity of the deceased is not one of the specified requirements to be established in proceedings to prove a lost will: see Cahill v Rhodes [2002] NSWSC 561 at para 55; Palmer v Smedley [1974] 1 NZLR 751 at p. 753.
    

Oral testimony by the respondent Tusa Mose Vii

63. The respondent Tusa Mose Vii ("Tusa") gave evidence on behalf of the respondents. As earlier pointed out, Tusa is a grandson of Melape who was one of Seleima's sisters. Much of the evidence given by Tusa was directed at Seleima's physical and mental condition. His evidence is directly in conflict with the evidence given by the applicant and the witness Paul about Seleima's physical and mental condition. Tusa testified that even though he did not live in the same house as Seleima or stayed permanently at Lotopa, there were numerous times over the years that he visited Seleima. In 1959, he noticed that Seleima's strength had started to wane. Later on, Seleima became bedridden and needed assistance to sit her up. Her mental condition also deteriorated. She became forgetful and most of the time her responses to questions did not make sense. Her eyesight was also not so good. There were also times when Seleima said to him that she could see a dead male relative coming to her wearing a red lavalava but he, Tusa, could not see any such man.
    
64. Tusa also said in his affidavit of 10 March 2009 and in his oral testimony that when Seleima died there was never any mention of a will. Their extended family have also had discussions many times about the lands of Mose the father of Seleima but there was never any mention by the applicant of a will of Seleima. It was not until about 1998 that the existence of a will by Seleima surfaced by which time the older generation of the family had passed on.
    

Discussion

65. I have found the evidence for the applicant unconvincing and difficult to believe. For the witness Paul to say that he never told his wife about Seleima's will and that she is one of the beneficiaries in the will for no acceptable reason at all is somewhat inconsistent with reality and human nature. If it is true as Paul said that he was present when Seleima made her will on 25 December 1965 and Seleima had read out her will in the presence of himself, May, and Pesaleli Leaisi before they witnessed her will, then I find it difficult to believe that Paul never told his wife about the will up to 1970 when they separated or anytime thereafter. Paul also said he very often read the bible containing Seleima's will and every time he read the bible he would never miss to read the will. Yet up to 1968 when he and his wife left Lotopa he never told his wife about the will. I also find it difficult to accept Paul's evidence that when he wanted to read the bible containing the will he would send his wife to May for the bible and then after he had read the bible he would send his wife to return the bible to May. This is notwithstanding the fact that they were staying in the same open Samoan house. This part of Paul's evidence is unrealistic.
    
66. Likewise, I find the applicant's evidence that he first became aware of Seleima's will in 1976 when his aunty May gave him the bible containing the will about a month before she died to be unconvincing and inconsistent with reality and human nature. If it is true that Seleima had made a will in 1965 and then gave the bible containing the will to May to look after, I would have thought that May at some time well before 1976 would have told the applicant about the will and that he is one of the beneficiaries in the will. But the applicant's evidence clearly suggests that that never happened even though the applicant and May were staying in the same house doing what a Samoan family would normally do together. I find this alleged silence on May's part difficult to believe.
    
67. So Paul never told the applicant about Seleima's will and neither did May. But no reason or explanation was given for this alleged silence on the part of Paul and May. I find this difficult to believe if in fact Seleima had made a will as claimed by Paul and the applicant. It does not inspire confidence in the credibility and reliability of the evidence given by Paul and the applicant.
    
68. There is also the evidence given by the respondent Tusa that when Seleima died there was never any mention of a will by her. During the many discussions held by the extended family about the lands of Mose after Seleima had died the applicant never mentioned a will by Seleima. It was not until about 1998 that the will surfaced by which time the older generation of the family had passed.
    
69. The evidence given by the applicant and the witness Paul that Seleima was always physically and mentally fit in spite of her old age was not unopposed. It was strongly opposed by the respondent Tusa who said Seleima, because of her old age, was bedridden and needed assistance to sit up. Seleima also became forgetful and most of the time her responses to questions did not make sense.
    
70. Given this state of the evidence, I am not satisfied on the balance of probabilities that there is clear and convincing proof that Seleima actually made a will claimed by the applicant to have been lost: In the Estate of Ralston (supra). In saying that, I also bear in mind that "the Court must be vigilant, being fully cognisant of the dangers of error and fraud, and the gravity of the consequences flowing from any finding made": Payton v Perpetual Trustee Company [2005] NSWSC 345 at para 92. So the first requirement to be established in proceedings to prove a lost will, namely, that such a will existed, has not been established.
    

Conclusions

71. (a) Having carefully considered the evidence and the submissions by counsel, I am not satisfied on the balance of probabilities that there is clear and convincing proof that Seleima deceased had made a will as claimed by the applicant.

(b) Accordingly, the motion by the applicant for a declaratory order that the said will is valid and for an order to set aside the respondents caveat is refused.

(c) As the conclusion I have reached on the alleged will of Seleima has been primarily influenced by the evidence, I will award costs of $2,000 to the respondents, even though this is in the nature of a test case.

CHIEF JUSTICE

Solicitor
Meredith & Ainuu for Applicant
Drake & Co. Law Firm for Respondent