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McBride v Public Trustee [2010] WSSC 79 (6 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of the Estate of EVELYN KRUSE late of Vasigano, Deceased

BETWEEN:

LUCY McBRIDE
of Auckland, New Zealand, Married Woman,
MARIE ANGELA FEIL
of Ma'alauli, Home Executive and
CHRISTINE KRUSE
of Pago Pago, Retired Teacher
Applicants

AND:

THE PUBLIC TRUSTEE
as the Administrator of the Estate of the said
EVELYN KRUSE, Deceased
First Defendant

AND:

HANS KRUSE,
sole beneficiary of the Estate of the said
EVELYN KRUSE, Deceased
Second Defendant

Presiding Judge: Justice Slicer

Counsel: R Drake for the Applicants
F Vaai-Hoglund for the First Defendant
A Roma for the Second Defendant

Hearing: 27 May 2010
Judgment: 6 July 2010

JUDGMENT OF SLICER J

1. The applicants seek the revocation of Letters of Administration granted by this Court on 1 September 1995 and declarations that the deceased's will is invalid and that the deceased died intestate.
   
2. Evelyn Kruse by her will dated 31 April 1970, bequeathed to her son Hans Kruse her interest in the estates of Arthur Francis Young, her grandfather and Steve Francis Young, her father. She directed that her 'Trustees or Administrators...carry out (her italics) bequest'. She did not name or appoint an executor or trustee to her estate. On 22 August 1999, Hans Kruse formally consented to a Motion filed in the Supreme Court 'to enable the Public Trustee to administer the estate' of his mother. Letters of Administration were granted to the Public Trustee on 1 September 1995. On 10 April 1996, the Public Trustee conveyed land at Tuamagaga to Hans Kruse as the beneficiary of the estate.
   
3. The applicants seek declarations or orders revoking those Letters of Administration and declaring the will to be invalid on the grounds that:
   

"a. ....the document propounded was not the original Will of the deceased;

1. No proof was provided as to the fate of the original Will;
   
2. No proof or insufficient proof was provided as to the existence and execution of the original Will;
   
3. No proof or insufficient proof was provided that the substance or contents of the original Will were contained in the documents alleged to be a true copy of the original Will;
   
4. No proof was provided that the original Will was not revoked;
   
5. No proof was provided that the deceased knew and approved of the contents of the original Will at the time she purportedly signed it;
   
6. That the Defendant should have sought probate in solemn form and the applicants served with the Defendant's application for the Court Order.
   

"b. OF undue influence by the sole beneficiary and/or;

"c. WANT of testamentary capacity on the part of the deceased."

4. In an earlier application dated 23 April 2007, the applicants sought orders directing that provision be made from the estate for their benefit. The grounds relied on in support of that application were:
   

"1. THE Applicants were not aware of the existence of the Will of the deceased until well after the expiry of the Limitation period in Section 48 of the Administration Act 1975;

"2. THE deceased has failed to make provision for her daughters, the Applicants;

"3. THE deceased has failed to recognize each of the Applicants as a valued family member;

"4. THE deceased on many occasions had expressly stated that the land and house (comprising her estate) was for all of the deceased's children."

5. Evelyn Kruse had married the applicants' father but the couple had divorced in 1946. She had never remarried. On her death, she left four surviving children, the applicants and Hans Kruse. She made no provision in her will for the applicants who live in New Zealand, Samoa and Pago Pago respectively.
   
6. The Court accepts the general history of the parties as to their relationship with their parents. But it is required to consider the validity of the will and whether the failure of the testatrix to provide for the applicants who were at the relevant dates established adults.
   

VALIDITY OF THE WILL

7. The original will was not proved. A copy was provided which had not been signed by the testatrix. In support of validity an affidavit dated 28 June 1995 was provided from Lanuola Isaac who was employed as a legal secretary in 1970 with the firm Phillips and Loe. She knew Evelyn Kruse and attested that she had been present when the will had been signed and that she had been a witness to its making. She confirmed, on oath that the will presented for probate was;
   

'...a true copy of the original of the...will and testament of the late Evelyn Kruse.'

8. Gavin Loe, a solicitor practising with the firm in 1970 deposed that his writing appearing on the will was a copy 'of the signatures to the document' which he handed 'to the client if it was intended that the original document was to be kept in the office of the client'. He had no recollection of witnessing the will or its making but confirmed that L R Isaac was employed at the relevant time as a managing clerk and that it was his belief that it was;
   

'...probable that Rachel Isaac, as L R Isaac was generally known, drew up this will.'

9. He further disposed that he 'always ensured that the testator understood the effect of the will to be signed'.
   
10. Evelyn Kruse died on 12 September 1973 and prior to probate letters were sent on or about 5 April 1994 to law firms in Apia enquiring whether any firms held 'any testamentary dispositions of the Deceased'. There were no replies to the inquiry. In a letter written to his sisters, the second defendant stated that he had made inquiries of the location of the original will but had been told by the solicitors that it had been lost.
    
11. The terms of the will did not provide for the appointment of an executor or trustee. But it did assume the existence of a trustee or administrator and any deficiency was made good by the appointment of the Public Trustee.
    
12. The Wills Act 1975 section 5 provides for the form of the will. The section requires the will to be in writing and to be signed by or at the direction of the testator in the presence of at least 2 witnesses who shall sign their names in the presence of the testator and each other at the same time. The Administration Act 1975 ("The Act") provides for a grant of probate or administration of wills with or without a will annexed. Wide powers are provided to the Court in the hearing and determination of proceedings relating to testamentary matters and estates (The Act ss.5, 27, 29). In this case, the will did not provide for the appointment of an executor or trustee and the Public Trustee was appointed. The original will was lost. The Public Trustee followed his practice and required sworn proof of attestation by Lanuola, one of the witnesses. That proof was accepted and Letters of Administration granted by the Chief Justice. This Court has a further advantage in that it has received an affidavit of Gavin Loe who was the senior partner of the firm which drew up the will. He deposed that the copy will contained his writing replicating the signatures of the testatrix and his own and one of his management staff as attesting witnesses.
    
13. The general rule is that, absent fraud, the fact that a will has been read over to a capable testator at the time of its execution, together with that execution, is conclusive evidence that he or she knew and approved of its contents (Donnelly v Broughton [1891] UKLawRpAC 25; [1891] AC 435). The Court accepts that the second defendant was not present when the testatrix executed her will. This is not a case involving a dispute as to whether probate should be granted but one where the parties seek to set aside a grant made many years ago. Tests of probity identified by the author of Probate & Administration Practice 3rd ed. Dobbie are relevant to a grant of probate. Revocation of a grant already made requires cogent and compelling evidence of irregularity.
    
14. This Court has no reason to revoke the grant of probate or Letters of Administration or to declare the will to be invalid.
    
15. The will was validly proved and the Grant of Probate made in accordance with law.
    

CONVEYANCE

16. The defendant became the registered proprietor of the land as executor by virtue of transmission 255Z registered in the Lands Registry on 16 April 1996. The land possessed by the deceased was that as registered in Volume 1 Folio 73 of the Register identified on Plan 5922.
    

CAPACITY AND UNDUE INFLUENCE

17. There is no evidence that the will was made as a result of undue influence or while the testatrix lacked testamentary capacity. The will was witnessed by a senior legal practitioner and a senior clerk of the practice. The Court accepts that the second defendant was not present at the time of its execution.
    
18. A will, rational on its face, executed and attested as prescribed by law is presumed, in the absence of contrary evidence, to have been made by a person of competent understanding (In Re White (deceased), Brown v Free [1950] NZGazLawRp 66; [1951] NZLR 393). Here there was no contrary evidence. The attesting solicitor had no reason to doubt testamentary competence. There was no evidence from family members that the testatrix showed signs of senility or incapacity at or near the time of the making of her will.
    
19. There was no evidence of inappropriate conduct which caused the testatrix to do something which she did not mean or intend (In Re O'Brien [1932] NZLR 43). The will was executed in April 1970. The testatrix visited and stayed with her children in New Zealand (November 1970 to June 1971), American Samoa (1971) and the United States (July 1973). She had ample opportunity to relate any unfairness, pressure or improper influence by her son in the making of the will.
    

LIMITATION AND LACHES

20. Evelyn Kruse died in 1973 and these proceedings not commenced until 2007. The Administration Act 1975 section 48 provides:
    

"Time for making application – Application for relief under this Part of this Act shall be made by way of motion in accordance with the rules of the Court and shall be made within 12 months after the grant of probate in Samoa:

"PROVIDED THAT the Court may on special grounds give leave to make an application for relief any time after the expiration of the said period."

21. Thirty-four years have elapsed since Evelyn's death. No claim or challenge was made to the estate during that period. Probate was granted in 1995, and the transfer executed in the following year. The applicants were aware of the death of their mother and the respondent had no legal duty to disclose to them the terms of the will. The estate has been wound up. On 16 April 1996, the land was transferred to the second respondent by Deed of Conveyance No. 9300C, following which the first respondent completed his role as executor of the will. The applicants are precluded by statute and laches from their maintenance of their claim.
    

ENTITLEMENT OF APPLICANTS

22. The applicants are mature adults who own property and have made their own way in life. Hans Kruse, the named beneficiary had reclaimed the land at Vaisigano and later built a home on that land. The testatrix lived with the beneficiary, Hans Kruse, from 1961 at which times the applicants had moved overseas. While the testatrix traveled to members of her family, her permanent home was with the second defendant. The terms of the will were but recognition of her son's care and commitment and no reflection of any lack love for her daughters. They had been successful in their own lives and there was no need for their mother to make special provisions for them in her will. Her sole assets in realty were the two allotments identified in the Schedules of the Deed dated 10 April 1996. She bequeathed them to the second defendant in recognition of his occupancy and care which he provided.
    
23. The Act section 47 permits the Court to grant relief to immediate members of the deceased's family. The section provides:
    

"The Court may grant to any widow, widower, parent, child, or grandchild of a deceased person who has died leaving estate in Samoa, such relief thereout as to it seems just, if the Court is satisfied (having regard to all the circumstances of the case) that such widow, widower, parent, child, or grandchild is insufficiently provided for."

24. Application for relief shall be made within 12 months after the Grant of Probate unless there are special grounds. The applicants have shown no special grounds. They were not dependent on the testatrix at the time of her death, or the making of the will and are not bereft of property or income. The test is 'insufficient provision' not simply family entitlement.
    
25. In 1970 and 1973, each applicant was in employment. They had left home and commenced their own way in life. They were not dependent on their mother. As at the date of hearing, each owned property in their own right. They do not seek a provision based on the value of the asset as at 1970 but on its value at sale in 2006 and there is no evidence of the value of the estate at that time. The applicants relied on a decision of the Court of Appeal in Re The Estate of Carruthers [1992] WSSC 6; [1980-1993] WSLR 529 May 1992 in support of their claims. However, that case involved a claim by the widow of the deceased whom he had married in 1966 and who had lived in the family home until the parties separated in 1980. The widow had received maintenance through a Court order which ceased upon the husband's death in 1987. The testator had left the bulk of his estate to the children of his last two marriages and made no provision for his wife. The primary and appellate Judges had approached the case on the basis that 'it was virtually common ground...that the testator should have made some provision in his will for his widow'. At the time of death, the widow was aged 47 and the mother of two of his children, one of whom was then aged 15. There were special reasons why she could not remain living on family land and any provision required an award of a capital sum. Carruthers was clearly a case involving a 'breach of moral duty'.
    
26. In Carruthers (supra), the Court applied the principles of 'moral claims' in the light of 'changing social attitudes' as stated in Little v Angus [1981] 1 NZLR 126. In that case the Court stated that the question of breach of duty ought be:
    

'...judged by the standards of a wise and just testator or testatrix'

and if so

'what is appropriate to remedy that breach?'

27. The breach was to be determined as at the date of the making of the will and/or death and remedy required regard to later events.
    
28. The testatrix in making her will was aware that the second defendant had done much of the work in reclaiming and improving the land in the mid to late 1950's. The Court accepts that it was Kruse who had built the home in which they lived The Court does not accept the applicants' assertion that another member of the family had built the house. She was aware that the applicants had left Samoa and began to live their lives in their own right. She was aware that they had employment and begun their own families. She retired from work in 1964. Although she visited her children abroad, her home remained with the second defendant.
    
29. Bequests to each of her children would require the sale of the land on which the second defendant lives. Her decision was not that of an unwise or unjust testatrix. Relevant to that decision is not the appreciated value of the land as at 2006 but the circumstances existing as at the date of the will and her date of death (Re Harrison (deceased) [1962] NZLR 61).
    
30. Here the estate has been wound up and there remains no part or parts of the estate which could bear the amount or extent of any relief (The Act s.49). It would be neither just nor equitable to 'follow the assets' i.e. the money derived from the sale of the land.
    
31. No order will be made pursuant to The Act Part IV. Probate was granted on 1 September 1995. The applicants made no enquiries concerning the estate or question of intestacy until after they learnt that the property had been sold for a considerable amount.
    

ORDERS

1. The applications seeking the setting aside of the Grant of Probate and/or declaring the will to be invalid are dismissed.
   
2. The application for an extension of time is dismissed.
   
3. The application for provision is dismissed.
   

JUSTICE SLICER