Abraham v Sunia [2011] WSSC 133 (22 November 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

ANN MARIE ABRAHAM of Wellington, New Zealand
as Executrix and Trustee of the Estate of Valerie Wells
Plaintiff

AND:

LEILANI SUNIA, also known as
LIELIE GALUEGA, AUFAI VILI, TAUSAGA SU,
SONNY SUNIA, PALOTA NIUPULUSU, FUI AUFAI VILI,
all of Alamagoto
Defendants

Counsel: Ms. Kirstin Drake for Plaintiff
Ms. Tima Leavai for Defendants

Hearing: 28 July 2011

Decision: 22 November 2011

DECISION OF THE COURT

Introduction

1. Valerie Wells (the deceased) who died on or about 31st March 2002 at Auckland, New Zealand where she spent the rest of her life after migrating from Samoa was the registered owner of certain lands (estate land) in Samoa which she disposed of in her will probated at Auckland New Zealand and exemplification of probate resealed in Samoa.
   
2. The will appointed the plaintiff as executor and trustee. She is directed under the will to hold on trust one half of the estate land for the deceased's two half sisters and half brother (the beneficiaries) equally, and the remaining half share to be sold and form part of the deceased's residuary estate.
   
3. All the three beneficiaries and their families were living on the estate land during the deceased's lifetime. The half brother pre-deceased the deceased but left children who by the terms of the will are entitled to their father's share. The other two beneficiaries have also since passed away.
   
4. The deceased and the three beneficiaries have the same mother but different fathers. The deceased inherited the land from her father.
   
5. The plaintiff who lives and resides in New Zealand has since 2002 been attempting to administer the estate; more particularly she wanted to divide the estate land into two halves as the will provided. But the families of the beneficiaries are scattered all over the estate land.
   
6. A scheme and a sub division plan of the estate land have been completed. The plaintiff wants the half intended for the residuary estate to be vacated. She has requested the defendants to vacate the land earmarked for the residuary estate.
   
   7. As the defendants have refused to move, the plaintiff seeks orders for vacant possession.
      

The Estate Land

8. The estate land situated at Alamagoto near Apia consists of parcels 66 and 67. Parcel 67 is to west side of the main road and parcel 66 is on the east bordering the hills at the rear. Both parcels are registered in Volume, Folio 37.
   
9. Parcel 67 which comprises of about 2 acres is occupied by the families of the beneficiaries. To minimize inconvenience, it was considered that all of parcel 67 be given to the three beneficiaries which means that parcel 66 comprising of some six acres has to be divided to make up the half share of the beneficiaries and the remaining half for the residuary estate. Houses and graves of the families of the beneficiaries are also scattered over parcel 66.
   

Attempts to resolve Administration of the Estate

10. As the plaintiff resides in New Zealand, a firm of solicitors in Samoa was instructed to negotiate with the surviving beneficiaries and family of the deceased beneficiary the best amicable way to effect the terms of the will.
    
11. A registered surveyor was also commissioned to redefine the boundaries of both parcels 66 and 67 and to advise on the most practical way to divide parcel 66.
    
12. The solicitor met twice with the beneficiaries and their representatives. The first meeting on the 12th July 2002 was attended by the two surviving beneficiaries, the descendants of the deceased beneficiary and other family members. Concerns were raised about relocation of the houses as a consequence of the intended division of parcel 66 after the content of the will was read and explained.
    
13. It was also voiced by the solicitor that a surveyor will be engaged to determine the layout of all the fixtures on the land to assist in determining the most appropriate way to divide parcel 66.
    
14. As the beneficiaries requested time to ponder over the estate matters raised, a second meeting was re-scheduled for the following week.
    
15. Before the second meeting, the solicitor received from the surviving beneficiary Matalena, and from the children of the deceased beneficiary Simeti Key, letters confirming their co-operation in the intended division of the land as provided in the will.
    
16. At the second meeting the other surviving beneficiary Peto who was then 80 years old voiced her objection to the beneficiary of the residuary estate, Elizabeth, who was not a member of the family. She objected to any division of the land. She believed the land belongs to her mother.
    

The intended sub-division of parcel 66

17. As the rear of parcel 66 slope up towards the hills it was considered by the surveyor that the residuary estate and the beneficiaries land should both share the rear sloping boundary; which means that 4 acres commencing from the rear will be divided into half by an access road from the main road. One half will be given to the beneficiaries to make up their total half share of the estate land whilst the other half and the balance of parcel 66 which fronts onto the road makes up the residuary estate.
    
18. A scheme plan 2857 dividing the 4 acres at the rear into two halves by an access road and a subdivision of the balance of parcel 66 which fronts the main road into parcels 1373, 1374 and 1375 was prepared and approved. Lot 1 is to be given for the three beneficiaries whilst lot 2, parcels 1373, 1374 and 1375 comprises the residuary estate.
    
19. Parcels 1373, 1374 and 1375 were first offered at very reduced prices to the families of the three beneficiaries to purchase. One of the descendants of Peti Key purchased parcel 1373. The other two parcels are occupied by some of the defendants who are not interested or unable to purchase. Parts of lot 2 is also occupied by some of the defendants.
    
20. Letters were sent by the Solicitors to the families of the three beneficiaries enclosing copies of the sub-division and telling those on the land allocated to the residuary estate to relocate.
    

The Defendants

21. The defendants are some of the children and grandchildren of the beneficiary of Peko Su.
    
22. Since the two meetings in 2002 two caveats were lodged by some of them against the title of the estate land. The second caveat was removed by Order of this Court dated 1st April 2009.
    
23. A challenge was also lodged in this Court by one of Peko Su's son alleging that the deceased prior to the execution of her will suffered from a severe form of dementia and therefore could not possess the requisite capacity to execute the will. The medical evidence which supposedly confirmed the mental incapacity of the deceased was never produced. By decision dated the 7th September 2008 the application was struck out.
    
24. Restraining orders were also issued by this Court in February 2005 against the defendant Aufai Vili and his family from interfering with surveyors engaged by the estate solicitors to carry out and complete survey work on the land.
    
25. Two of the defendant filed affidavits; they also testified. Aufai Vili the son of Peko Su lives with his family on lot 2 is 66 years. He referred to the deceased as his aunty. He recalled receiving letters from a lawyer in 2005 but it was in the English language and did not bother to read them. When put to him under cross examination that the letters also had Samoan translations he replied (unconvincingly) that he was a reluctant letter reader. He has lived on the land all his life and his older brother is buried infront of his house. His mother is buried on parcel 1374 where she lived. His son also has a small shack on the land.
    
26. Aufai Vili objects to the subdivision for the reasons he stated at paragraph 11, 12 and 13 of his affidavit:
    

11. That my sister Leilani and I with our families have never been informed of how the division of the land was determined.

12. That we now know from our lawyer that the area they want to leave for the estate includes the area my family and I are staying on. It is shocking to know that we will have to move away from where we have been staying from time immemorial.

13. I am too old and do not have the strength financially and physically to build a new house or move the house to another location. It is just too much at my age; and I do not have the money to carry out such undertaking.

27. More significantly Aufai Vili objects to the plaintiff, a stranger to the family, in doing the subdivision without consulting the family.
    
28. Leilani Sunia, the sister of Aufai Vili, built and lived on parcel 1375 since 1961. Two of her children are buried on the land. She is 71 years old. For the same reasons given by Aufai Vili she objected to the subdivision of the estate land. She did concede that upon receipt of one of the letters from estate solicitor in 2005 she and two of her daughters saw the estate solicitor.
    

Discussion

29. The families of defendant Leilani Sunia are on parcel 375 whilst defendant Aufai Vili and his families are on part of Lot 2. They have been asked to relocate to lot 1. Parcel 1375 was offered for sale to the families at a much reduced price, so were parcels 1374 and 1373. Simeti Key a descendant of the beneficiary Simeki Key bought parcel 1373.
    
30. The doctrine of adverse possession was not raised and does not therefore arise for discussion. It is difficult to ignore however that over the years the defendants Leilani Sunia and Aufai Vili and their families have constructed permanent homes and buried their dead siblings and children on the land without objection or caution from anyone. The frustrations raised by their mother Peko Su when she was confronted by the solicitor and told of the status of the land and of the contents of the will of Valerie Wells, were therefore quite logical.
    
31. However it appears from the responses of the other two beneficiaries Matalena and Simeti and their families that it was common knowledge that the land was that of the deceased. What is quite obvious is that there has been and still is a bitter relationship amongst the families of the three beneficiaries over the settlement of the estate land. The division of the land allocated to them into three parts will undoubtedly be another pending battle.
    
32. It cannot be doubted that the division of parcel 66 suggested by the surveyor and delineated on scheme plan 2857 was the most fair and practical one to both the beneficiaries and the residuary estate.
    
33. The suggestion by the defendants that part of lot 1 should be given to the residuary estate to compensate for parts of lot 1 and parcel 1374 and 1375 occupied by the defendants is misleading and illogical. The only area of lot 1 which is vacant is the rear sloping up to the hills. It also means a relocation of some of those families living towards the rear of lot 1. Indeed the defendants cannot, in the absence of any agreement from the other two beneficiaries offer to exchange part of the land given to the three beneficiaries in three undivided shares.
    
34. What is equally misleading is the submission by counsel for the defendants that the plaintiff through her lawyer sub-divided the land without consulting the defendants and the plaintiff remote-controlled everything from overseas and took a very impersonal attitude towards her duties as executor. The evidence is overwhelming to the contrary. The estate solicitor in 2002 held two meetings with the beneficiaries and their families, the plaintiff herself met with some of them when visited Samoa in 2003. A surveyor was hired to advise on the best way to split parcel 66 as it was plain common sense to give parcel 67 to the beneficiaries as they and their families have occupied that parcel. After parcel 66 was sub-divided further letters were sent to the beneficiaries.
    
35. But the defendants and their late mother did not want to hear about any sub-division, more particularly they resisted the beneficiary of the residuary estate. Unlike the other two beneficiaries they decided to make things difficult. Caveats were lodged and the validity of the will challenged. Restraining orders were issued against some of them to facilitate the administration of the estate.
    
36. Whatever way parcel 66 was to be divided some of the occupants have to be relocated. Unfortunately they happen to be the defendants, the families of the defendants Leilani Sunia and Aufai Vili.
    
37. But the warning bells have been ringing since 2002 which the defendants and their late mother decided to defy and challenged. They responded negatively by resisting the efforts of the plaintiff to carry out the wishes of the deceased and caused unnecessary and costly delays through flimsy court proceedings and endangering the safety of the surveyors necessity the issue of restraining orders by the Court.
    

Orders

1. The defendants, their siblings, children, family members, agents and servants are ordered to vacate and give up possession of parcels 1374 and 1375 and lot 2 delineated on scheme plan 2857 being part of the land of the estate of the late Valerie Wells, situated at Alamagoto and registered in Volume 1 Folio 37.
   
2. Vacant possession shall be given within three months, from today, more specifically no later 4 o'clock in the afternoon of the 21st February, by which date the defendants should relocate their houses, graves and other structures and shall not re-enter the said parcels of land after that date.
   
3. The plaintiff is entitled to costs including travel and accommodation costs. If costs are not agreed to within 14 days. Counsel for the plaintiff to file memorandum of costs and counsel for the defendants to respond within 7 days after receipt of plaintiff's costs.
   

JUSTICE VAAI