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Farani v Public Trustee [2018] WSSC 117 (20 November 2018)

SUPREME COURT OF SAMOA
Farani v The Public Trustee [2018] WSSC 117

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
of section 56 of the Administration Act 1952 (NZ).

BETWEEN:

ALOFA FARANI (nee Coffin) of 12 Trinidad Place, Blockhouse Bay, Auckland, New Zealand, housewife and ULUATA ETUALE UTA’I, of 5 Haig Avenue, Mt. Roskill, Auckland, New Zealand and also Magiagi, Samoa, housewife.
Plaintiffs

AND:

THE PUBLIC TRUSTEE, as the Administrator of the ESTATE OF ATIMALALA ATIMALALA, Magiagi, Samoa
First Defendant

AND:

THE PUBLIC TRUSTEE, as the Administrator of the ESTATE OF SUAFA SUAFA, Magiagi, Samoa.
Second Defendant

AND:

THE PUBLIC TRUSTEE, as the Administrator of the ESTATE OF ATIMALALA ATIMALALA JUNIOR, Magiagi, Samoa.
Third Defendant

Counsel:
I Sapolu and F J Sapolu for plaintiffs
S Leung Wai for defendants

Hearing: 15 August 2018

Submissions: 30 August 2018

Decision: 20 November 2018

DECISION OF NELSON J

Background

1. The late Atimalala Falanaipupu of Magiagi, Samoan Medical Practitioner (“the intestate”) was at the date of his death the registered owner of certain freehold land described as Parcel 34, Flur IX, District of Tuamasaga registered in Volume 6 Folio 75 of the Samoa Land Register. The land comprises some 83 acres more or less at Lanoto’o, and is now described as Lot 1193 on Plan 4487.
2. The deceased died intestate on 26 November 1953 and was survived by his widow Lole Atimalala and their eight (8) children:

3. By letter dated 07 August 1956 Lole Atimalala requested the Samoan Public Trustee to administer her husbands estate: copy attached as “Appendix 1” to this judgment.
4. In a subsequent handwritten letter dated 09 August 1956 to Mr B.L Clare the then Samoan Public Trustee, Lole requested on behalf of herself and her children that Atimalalas land be transferred to her sons Suafa and Atimalala: refer “Appendix 2”.

The name of the son Hans is for reasons unknown missing from that correspondence.

5. On the right bottom side of the letter is what appears to be a handwritten instruction from the Public Trustee saying:

“Obtain an undertaking.

Get her to sign that she has received competent and independent advice and is fully aware of the instructions which she has authorized.

CONVEYANCE BY DIRECTION.”

6. Lole confirmed her instructions to the Samoan Public Trustee in a Statutory Declaration dated 26 September 1956 confirming that after discussion with family members it was her wish to convey Parcel 34 to Suafa and Atimalala: see “Appendix 3”. The Declaration also records in paragraph 4 that for their part, Suafa and Atimalala “who have been charged with the affairs of the family” have agreed to meet “all testamentary expenses, fees, duties, debts and other charges” in respect of Atimalalas estate.
7. In pursuance of these arrangements, the Public Trustee filed with the High Court of Western Samoa an Election to Administer which was granted on 25 September 1956. Supporting that Election was an affidavit from Lole dated 14 August 1956: refer “Appendix 4”.
8. On 27 September 1956, the then Chief Surveyor wrote to the Public Trustee detailing the physical specifications of Parcel 34 and because of those valuing the land at Twenty Pounds (£20): refer “Appendix 5”. A key document.
9. By Deed dated 22 February 1957 the Public Trustee transferred Parcel 34 to Suafa and Atimalala. The Deed is signed by both the Public Trustee and Lole: copy attached as “Appendix 6”. Annexed to the Deed is a Consent to Alienation of Samoan Freehold Land as required by the then law, duly executed by the Acting High Commissioner of Western Samoa on 22 February 1957. The land thereupon became registered to Suafa and Atimalala as tenants in common in equal shares.
10. The Deed recites Parcel 34 as comprising “83 acres more or less” although the certified copy thereof held by the Land Registry Office has a penciled-in figure of “84” acres. I also note “Appendix 5” refers to an acreage of “approximately 90 acres”. These differences may be due to the inclusion of a piece of land at Malie which the plaintiffs say also formed part of Atimalalas Estate. However there was no evidence adduced as to the actual location, size or the registered title over such land or as to its value. The variations in acerage are immaterial to present purposes.

The Claim

11. By Amended Statement of Claim dated 12 March 2018 which reads more like Submissions than proper pleadings of fact, the plaintiffs who are the children of Faasavaliga and Pala challenge this testamentary distribution. The first ground of challenge is that the Public Trustee erred in law in devolving Atimalalas Estate solely to his widow, who thereupon transferred it to only two of her children.
12. This ground turns upon a proper interpretation of the then applicable s.56(1)(a) of the Administration Act 1952 (NZ) which relevantly provides:

“56. (1) Where any person dies intestate as to any real or personal estate, that estate shall be distributed in the manner or be held on the trusts mentioned in this section, namely:-

If the intestate leaves a husband or wife, the surviving husband or wife shall take the personal chattels absolutely, and, in addition, the residue of the estate shall stand charged with the payment of a sum of one thousand pounds to the surviving husband or wife with interest thereon from the date of the death at the rate of four per cent per annum until paid or appropriated, and, subject to providing for that sum and the interest thereon, the residue of the estate shall be held -

If the intestate leaves issue, in trust as to one-third for the surviving husband or wife absolutely, and as to the other two-thirds on the statutory trusts for the issue of the intestate:

If the intestate leaves no issue ..........

If the intestate leaves no issue or parent .........”

13. The second ground of the challenge is the documents or some of them are forgeries or cannot be accepted as authentic and the relevant transfers were therefore fraudulent.

Administration Act, s.56(1)(a)

14. It is not in dispute that the intestate Atimalala was survived by his wife and accordingly s.56(1)(a) applies. The contest concerns construction of s.56(1)(a) and in particular whether s.56(1)(a)(i) comes into play.
15. The defendants argue s.56(1)(a) establishes a £1,000 plus interest widows entitlement that must first be satisfied before s.56(1)(a)(i) comes into effect and the children qualify for inheritance. If the estate value does not meet this threshold, the surviving spouse takes the residue of the estate, in this case the land, absolutely. And she would be free to deal with the land howsoever she chooses.
16. The plaintiffs say that the issue of the Estate value was not properly determined. They reject the valuation by the Chief Surveyor in its own right and because their fathers estate also included land at Malie not taken into account by the Chief Surveyor. They submit this affects the value of the Estate lands but did not adduce any evidence as to location size or title of the Malie land or as to its value as at the date of the intestates death.
17. They also reject the Chief Surveyors valuation because “Appendix 5” is unsigned. They do not accept that the word ‘copy’ in the top left hand corner of the document establishes that it is a file copy of the original.
18. The plaintiffs second argument focuses on the words “stand charged” in s.56(1)(a). They say this means the estate land or lands stand charged with payment of the threshold sum but must nevertheless be divided into the statutory trusts of one-third for the surviving wife and two-thirds for the issue of the marriage.

Discussion

19. Section 56(1)(a) provides for the wife taking the intestates “personal chattels absolutely” and for the residue of the estate - which in this case comprises the real estate or land of the intestate - to “stand charged with the payment” to the surviving widow of £1,000 plus interest at 4% per annum from the date of the testators death until “paid or appropriated”. Then comes for present purposes the key phrase: “subject to providing for that sum and the interest thereon” (my emphasis), the residue of the estate then devolves one-third to the widow and two-thirds to the children.
20. The meaning of s.56(1)(a) is in my view clear. The widows entitlement must first be adequately provided for before any division of the estate residue into one-third/two-thirds.
21. The intent of s.56(1)(a) is obviously to ensure a surviving spouse is provided for from the deceaseds estate by way of a financial benefit. Such becomes a first charge over the residue of the Estate. Only after catering for that interest does the section then direct that the residue be split one-third for the survivor spouse and two-thirds for the children. The interests of the survivor spouse are given statutory priority and consistent with this objective, the devolution to the children pursuant to 56(1)(a)(i) is made expressly “subject to” provision being made for the entitlement. The inevitable result is that no one-third/two-thirds devolution can occur until the widows entitlement is provided for.
22. The scheme of 56(1)(a)(i) continues on in the present Administration Act 1975, s.44. The language is virtually identical. Recent examples of the New Zealand equivalent of the section at work in practice are the cases cited by defence counsel: Brummer v Murrel [2015] NZHC 1036 at paragraph 12 and Stuart v Pieters [2014] NZHC 1760 at paragraph 7.
23. There do not appear to be any Samoan authorities on point but the Deputy Public Trustee who gave evidence at the hearing confirmed that they follow the New Zealand practice.

Valuation

24. I am unable to accept the plaintiffs arguments. I have no reason based on the evidence adduced to doubt the authenticity of the only record before me as to the value of Parcel 34, viz. “Appendix 5”. It indicates a valuation based on ariel photographs of uninhabited and uncultivated land “on a steep slope” bounded by the Fuluasou River on the west and comprising four sharp “razor back spurs separated by deep gullies”. This is consistent with the topography of the Lake Lanoto’o area which in the 1950’s would have been largely uncleared bush.
25. I am also satisfied from the records on the Public Trust Office file that “Appendix 5” is a file copy of the original letter. The photocopy does not clearly show that there is an initialed file note dated 28 November 1956 at the bottom of the letter reading “Original filed with Form L”, a reference to the Form sent by the Public Trust Office to the Treasury Department for the purpose of assessment of death duty. Form L states the value of the Estate land to be £20.
26. I accept that in 1997 part of these lands were sold by Suafa and Atimalala for several thousands of tala but that was some 44 years after Atimalalas death and no doubt land values and the topography would have by then changed. The pertinent value date as shown by authorities such as Re Martin [2014] NZHC 2829 cited by plaintiffs counsel is the date of death of the intestate, a matter not in issue in the instant case.
27. The court accordingly accepts that as at the date of Atimalalas death, the land described as Parcel 34 in respect of which he was registered owner, had a value of £20. Furthermore there is no reliable evidence that the deceased was registered proprietor of any additional land whether in Malie or elsewhere or as to the value of any such lands. The end result is the value of the deceaseds estate at his death was £20, a sum considerably less than the widows entitlement under s.56(1)(a).
28. I am also of the view that in such cases s.56(1)(a)(i) does not come into operation until the widows entitlement is adequately provided for either by way of payment or appropriation as required by s.56(1)(a). To accept the plaintiffs argument that a devolution under 56(1)(a)(i) should nevertheless occur would frustrate the clear objective of the section and lead to the absurd result that the Estate would become frozen and inactive until such time as the widows entitlement could somehow be satisfied. Parliament could not have intended such a consequence. It was in my view therefore open to the Public Trustee to take the action he took and accept the direction of the widow to convey Parcel 34 not to her in partial satisfaction of her entitlement, but to Suafa and Atimalala who had agreed to be liable for the Estates expenses in accordance with the family arrangement agreed upon with all the Estate beneficiaries bar one.

Fraud

29. As to the plaintiffs arguments concerning fraud, it is well established principle that he who asserts fraud must prove it; and as stated in the leading authority on the subject of Three Rivers District Council et al v Bank of England (No.3) [2001] UKHL 16; [2001] 2 All ER 513 by Lord Hobhouse at page 569:

“The law quite rightly requires that questions of dishonesty be approached more rigorously than other questions of fault. The burden of proof remains the civil burden – the balance of probabilities – but the assessment of the evidence has to take account of the seriousness of the allegations and, if that be the case, any unlikelihood that the person accused of dishonesty would have acted in that way. Dishonesty is not to be inferred from evidence which is equally consistent with mere negligence.”

Lord Millet put it thus at page 578:

“..... an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient.

..... It is not open to the court to infer dishonesty from facts which are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved” (emphasis mine).

30. The plaintiffs have questioned various aspects of the documentary evidence in this case but their misgivings in my respectful view fail to meet the above tests. They do not establish any dishonest or fraudulent intent on the part of the defendants which is what is required by law.
31. I will deal with the plaintiffs queries in the order listed in the Amended Statement of Claim. Firstly Loles statutory declaration (“Appendix 3”). The plaintiffs say this document was inadequately witnessed by “B L Bridger” an officer somehow connected with the defendants. Firstly I do not agree it was inadequately witnessed. Granted the witness may not have spelt out his/her name but this is relatively speaking a recent innovation amongst lawyers, particularly in this jurisdiction. Furthermore even if it is the actual signature of “B L Bridger” there is nothing in the evidence to suggest a connection between this person and the defendants other than he was a witness to some of the documentation.
32. What is significant is not only paragraph 5 of the Declaration but the fact that the signature of Lole in this document matches her signature in all the other documents she purportedly signed, down to the distinctive full-stop between her first and last name. Copies of documents produced at trial may not be clear but the originals on the Public Trust Office file I inspected and plaintiffs counsel should have inspected are in fairly pristine condition.
33. I also have no reason to doubt the document was translated into Samoan for Loles benefit as certified. There is no substance in the plaintiffs concerns about “Appendix 3”.
34. As to Loles handwritten letter of 09 August 1956 (“Appendix 2”), the plaintiffs make much of the fact that this document is not signed by all of the eight (8) children. In particular Aviti who was blind from birth. The plaintiffs also appear not to understand the significance of the notation on the bottom right side of the document.
35. Firstly I do not accept the document contains the signatures of the five (5) children listed. It seems to me when one considers the style of writing in particular the individual letters, that the names in the column at bottom left or at least the first four names were written by the same person who penned the letter, viz. Lole. Secondly the document is more a record of what was agreed upon by those persons listed which for unknown reasons excludes Hans. That only five of the eight children are mentioned is not surprising since the other two children Suafa and Atimalala are already in the body of the letter. Being the transferees, one would not expect their names to be included in the list of other beneficiaries consenting to the transfer.
36. As for the right side notation, the reasonable inference is it is a direction from the Public Trustee to his staff as to the process to be followed in the matter. Nothing earth shattering or remotely fraudulent or dishonest about any of this.
37. In respect of Loles letter to the Samoan Public Trustee dated 07 August 1956 (“Appendix 1”), the plain and ordinary interpretation of this document is it was prepared by the Public Trust Office and signed by Lole as an authority for the Samoan Public Trustee to act. Nothing sinister in this and no reason as suggested by the plaintiffs why it would need to be translated for Loles benefit into Samoan, a language I venture to suggest Mr B L Clare did not speak.
38. Loles affidavit (“Appendix 4”) - the plaintiffs are again concerned about the propriety of the translation and the validity of the witnessing signature. Again I have no basis for questioning the accuracy or otherwise of the Certification and neither do I see any impropriety in the witness correcting his title and initialing the change. This is in the words of the Bard “much ado about nothing.”
39. Loles signature on the above four documents according to the plaintiffs differs from document to document. I do not agree. As observed earlier they appear identical to me. No-one with specialist expertise in such matters was called by the plaintiffs.
40. The Deed of Conveyance (“Appendix 6”) – I do accept that on this document Loles signature is different. The reason for that is simple: this is not the original document but is merely a copy. As we are all aware photocopies are a modern innovation and such machines did not exist in 1950s Samoa or indeed anywhere else. I take judicial notice of the fact that copies were then produced by either retyping the whole original or on the carbon copy thereof by physically inserting the details from the original. Thus it is with “Appendix 6”.
41. I further take judicial notice as confirmed by the plaintiffs own witness Mr Sau Tuaena of the Land Registry Office of the previous practice under the Deeds system of registration that the signed original Deed of Conveyance is released to the registered owner with the Registry retaining a copy or a certified copy thereof. And that in respect of this matter there is only the Deed of Conveyance certified copy in their possession. The original would have been released to Suafa and Atimalala or one of them. No reason for the Public Trustee to possess the signed original, a copy would have been sufficient for his purposes. Again nothing startling unusual dishonest or fraudulent about this state of affairs.

Decision

42. The onus is on the plaintiffs to prove their case. They have not established error or fraud on the part of the defendants, their claim must fail.
43. Costs would normally be awarded to the successful party but in this case, important issues of statutory duty and interpretation on the part of the defendants have been clarified. To that extent, the defendants office has benefited. There will be no order as to costs.
    

JUSTICE NELSON