IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LEAULA LOPA SU
of Alamagoto, Unemployed
Plaintiff

AND:

ANN MARIE ABRAHAM
of Wellington, New Zealand, Area Manager
Defendant

Counsel:	Ms Papalii for plaintiff
Ms Drake for defendant

Judgment:	7 November 2008

JUDGMENT BY JUSTICE VAAI

Background

1.	The late Valerie Wells who lived and resided in New Zealand during her lifetime died at Auckland New Zealand on the 31st March 2002. She left a Will naming the defendant as the executrix and trustee. The Will was probated in the High Court of New Zealand at Auckland Registry on the 2nd July 2002 and Exemplification of Probate was resealed in the Supreme Court of Samoa on the 22nd August 2002.

2.	The Will disposed of her land property in Samoa by gifting half of her land to her two half sisters and a half brother, whilst the other half was directed to be sold to form part of the residuary which was gifted to one Elizabeth Abraham.

3.	The plaintiff is the son of one of the half sisters who benefited under the Will. He claims to be the Administrator of the estate of his deceased mother. He has challenged the grant of probate of the Will and New Zealand and the resealing of that grant in the Supreme Court of Samoa.

The Plaintiff’s Claim

4. 	By statement of claim dated the 1st February 2007 the plaintiff alleged that prior to the execution of the Will on the 18th May 1992, Valerie Wells (the deceased) had already been diagnosed in 1991 to be suffering from a severe form of dementia and could not therefore possess the requisite mental capacity to execute a will.

5. 	The plaintiff prays for orders:

(i)	in validating the Will and exemplification of probate;
(ii)	directing the defendant to restore the deceased’s estate to its original status;
(iii)	invalidating any subsequent transactions or actions of whatsoever nature affecting the deceased’s estate;
(iv)	by way of injunction restraining the defendant or anyone acting under her instructions or authority from in any way interfering with the estate of the deceased both here abroad;
(v)	Costs including Solicitor’s Costs;
(vi)	Such further or other relief as the Honourable Court deems just.

Response by the Defendant

6. 	The defendant protests the jurisdiction of the court to entertain the challenge of the Will of a New Zealand resident, probate of which was granted by the High Court of New Zealand. The defendant seeks an order to strike out the Statement of Claim.

Commencement of Proceedings 

7. 	Pursuant to rules 10, 11 and 12 of the Supreme Court (Civil Procedure) Rules 1980 the correct form of proceedings should be by way of motion, and rule 188 provides that every proceeding not required to be commenced by way of action may be commenced by way of motion supported by affidavit.

8. 	By Notice of Motion dated 18th March 2008 the plaintiff sought orders:

(a)	staying the grant of probate of the Will made by the High Court of New Zealand and the Resealed Exemplification of Probate granted by this Court;

(b)	that the grant of probate of the Will be reheard.

(c)	Declaring the Will null and void and of no effect;

(d)	Declaring that the deceased died intestate;

(e)	Directing the defendant to restore all estate properties dealt with by her.

The grounds upon which the orders are sought are:

(i)	There is reason to believe that the deceased was diagnosed on or about 5th February 1991 as having suffered from a severe form of dementia, most probably of the Alzheimer’s type, and, could not have had the requisite mental capacity to have enabled her to execute the alleged Will dated 18th May 1992 and the Court granting probate may not have taken this relevant factor into account;

(ii)	That the original grant in New Zealand and the subsequent Resealing of Exemplification of Probate in Samoa were made without knowledge of the plaintiff;

(iii)	That the medical evidence upon which the plaintiff relies have only just recently been discovered in New Zealand;

(iv)	That the plaintiff’s mother is a half sister of the aforesaid deceased, and, therefore, a beneficiary under the aforesaid deceased’s estate;

(v)	That the plaintiff’s action is brought within the 12 year limitation period provided for under Section 20 Limitation Act 1975.

(vi)	That it would be in the interests of justice for the Honourable Court to review the grant of probate and resealing of exemplification of probate, and that this Honourable Court has jurisdiction to review such grant pursuant to rule 141 Supreme Court (Civil Procedure) Rules 1980 under its inherent jurisdiction AND UPON THE FURTHER GROUNDS appearing in the Statement of Claim and affidavit filed herein.

9. 	No affidavit was filed in support of the motion and none has been received so as to comply with rule 188. The affidavit in support of the motion would have exhibited the medical report relied upon, supporting the allegation that the deceased immediately prior to the execution of the will was diagnosed as suffering from a severe form of dementia, and her then mental condition would render her incapable of appreciating and understanding the nature of the document she was executing.

10. 	Non-compliance with the rules do not necessarily render the proceedings void. Pursuant to rule 202 the proceedings may be set aside as irregular, amended, or otherwise dealt with in such manner and on such terms as the court may deem just.

Jurisdiction to Entertain the Application

11.	It is common ground that pursuant to section 5 Administration Act 1975 the court has jurisdiction to grant and revoke grants of probate. Section 39 also provides for resealing of probate granted by any competent Court in any other country and shall after resealing have the like force and effect as if probate was granted in Samoa.

12.	Counsel for the plaintiff in propounding the argument that this court has jurisdiction to grant the orders sought rely on Rule 141 (1) Supreme Court (Civil Procedure) Rules 1980 which provides:

141 (1) The Court shall in every proceeding have the power to order a rehearing to be had upon such terms as it thinks reasonable, and, in the meantime to stay proceedings:

Provided that a rehearing shall not be granted on an application made more than fourteen days after the judgment or order, unless the court is satisfied that the application could not reasonably be made sooner.

13.	Counsel also rely on two unreported decisions of this court in Alfred Hunt v. Attorney General (1994) CP 351/93 and William Keil v. Land Board & others (21/12/2000) as authorities for the proposition that the failure to take into account a relevant factor, or the taking into account of an irrelevant factor is an independent ground for judicial review. He developed the argument that the deceased’s mental capacity at the time of the execution of the Will was a relevant factor which the Court should have taken into account and since section 39 (2) Administration Act 1975 empowers the Court to make an independent grant of administration, counsel argued that section 39 (2) gives the Court the power to review an overseas grant of probate.

14. 	The defendant maintained that the Court has no jurisdiction to challenge the grant of probate made by the High Court of New Zealand in the Will of the deceased who left Samoa for New Zealand 1950 where she has lived until her death in 2002.

Discussion

15. 	If rule 141 Supreme Court (Civil Procedure) Rules has any relevance to the present proceedings it does not in my opinion assist the plaintiff at all. 

In the first place rule 141 (2) specifically provides that the application for a rehearing shall state the grounds thereof which shall be verified by affidavit. As previously stated no affidavit was filed in support of the motion; the non-compliance is in my view fatal to the application.

Secondly in considering an application under rule 141 the rules do not provide any indication as to how the discretion of the Court should be exercised. Some guidelines are provided by New Zealand cases which considered similar application under the identical New Zealand High Court Rules. In Paterson v Wellington Free Kindergarten Association Inc (1966) NZLR 975 the court in approaching such application said that it is not limited in the consideration to which it may have regard, but these have been long considered of dominant important:

(i)	That the defendant has a substantial ground of defence.
(ii)	That the delay is reasonably explained.
(iii)	That the plaintiff will not suffer irreparable injury if the judgment is set aside.

In Russel v. Cox (1983) NZLR 654 and Equity Finance Group Ltd v Cheah (1989) 3NZLR 1 both decisions of the NZ Court of Appeal cited by Vui J in Samoa National Provident Fund v Toiaivao Lauano (unreported) 28/8/08 it was emphasised that what the court said in Paterson v Wellington Free Kindergarten Association Inc should be taken as doing no more than highlighting factors which on any application to set aside may generally be regarded as relevant to an inquiry which will determine where the justice of the case will lie.

I have already touched on the failure of the plaintiff to substantiate a defence or a claim of some substance against the defendant by way of affidavit. But the touchstone, in my view, for determining whether it is just in all the circumstances to grant the application is, the comity of nations, which neither counsel addressed.

Comity of Nations

16.	It is defined in the Shorter Oxford English Dictionary 3rd edition as:

"The courteous and friendly understanding by which each nation respect the laws usages of every other, so far as may be without prejudice to its own rights and interests."

Section 39 Administration Act 1975 which provides for the resealing of probates granted abroad recognise the comity of nations and such probates after resealing in this country shall have the like force and effect in Samoa. But Mr Toailoa for the plaintiff argued that subsection 2 of section 39 which provides:

"Nothing in this section shall prevent the Court from making an independent grant of administration in Samoa." 

gives the court the power to review an overseas grant of probate, and if necessary, can order an independent grant of probate.

It must be remembered that the purpose of section 39 Administration Act 1975 is to facilitate the administration and disposition of properties in Samoa of those people who were domiciled and died overseas and had their wills probated abroad. In a comparable question of private international law Viscount Simonds said in National Bank of Greece and Athens S.A. v Metliss (1958) AC 509 at 525:

"But, my Lords, in the end and in the absence of authority binding this House, the question is simply: What does justice demand in such a case as this?"

I think there can be no doubt that the proper law regulating the disposition of property in a situation such as this is the law of the country where the property is situated (lex situs) and not the law of the deceased’s domicile: see In re Moses (1908) 2 Ch 235. But if the disposition intended by the will is not one which is permitted or recognised by the lex situs, it cannot be given effect: see In re Miller (1914) 1 Ch 511. Section 39 (2) grants the court the power to make an independent grant of administration (my emphasis) not an independent grant of probate so that it was never intended that the section gives the court the power to disturb or review the grant of probate made overseas. On the other hand, the court may, provided sufficient grounds are advanced make an independent grant as to the administration of the estate assets. 

17. Ms Drake for the defendant placed reliance on the decision of the High Court of New Zealand in McComan v Hawilet (2007) 1 NZLR 120 and quoted from paragraphs 29 and 36 of judgment of Asher J:

[29]	It is stated in Halsbury’s Laws of England (4th edition) volume 8 (3) paragraph 453:

"Prima facie, a will of immovables must be construed according to the law of the testator’s domicile at the date of execution of the will, but this presumption may be rebutted by a sufficient indication that the testator intended to refer to some other law …"

[36]	However, this rule does not in any way mean that the will should be construed in a manner contrary to the testator’s intention by applying the laws of a foreign jurisdiction to the will because it refers in whole or in part to immovables in that foreign jurisdiction. This will should still be interpreted in accordance with New Zealand law, excepting that the administration of the United Kingdom assets will be governed by the law of the United Kingdom.

Although the judgment of Asher J was concerned with the construction of the will probated in New Zealand and resealed in England it is a persuasive authority for the proposition that the law by which the validity of the will should be challenged is the law of the place where the deceased was domiciled, so that section 39 (2) Administration Act 1975 (discussed in paragraph 16) does not give this court power to review probate granted abroad.

But since the land property named in the will is situated in Samoa the succession to that property is regulated by the lex situs and section 39 (2) Administration Act 1975 empowers the court to make the appropriate administration order if necessary.

Order

(1)	The Statement of Claim and the Notice of Motion are struck out.
(2)	Plaintiff is ordered to pay costs of $500.

JUSTICE VAAI