Every person over the age of 18 should have a Will, as without one, a person dies in a state of intestacy, meaning that where the deceased person’s property goes must be determined by the State in accordance with legal principles related to intestacy.

A well drafted Will is a legal document that enables a person (known as the Testator) to ensure that his or her wishes are respected after death with regard to how property owned by the Testator is distributed.

In Fiji, to be a valid Will it must comply with the Wills Act, 1972 which includes the requirement that the Testator’s intentions must be witnessed by two witnesses who are not beneficiaries of the Will. The strict legal formalities that lead to the formation of a valid Will are why it is advisable to seek a lawyer’s advice before the Will is prepared. The engagement of a private lawyer is not necessary, as the Legal Aid Commission may also provide competent advice in this regard, although before engaging any lawyer (public or private) it is important to understand what charges may apply to administer the estate via what is known as a grant of probate. Probate is the process by which the appointed executors of the Will are appointed by the High Court of Fiji to execute the Will of the Testator in favour of the persons who will benefit from the Testator’s wishes (Beneficiaries).

In this commercial law update we provide some general guidance (not legal advice) on how to minimise the chances of a Will being challenged and overturned by the Court.

There are certain formalities to be complied with in executing a Will, and these are set out in section 6 of the Wills Act, and the failure to properly comply with the formalities could result in a Will being declared defective and invalid by a Court of law.

Many legal disputes arise because parties to any commercial or personal undertaking do not give sufficient thought to the clarity of the language used, and a Will is no exception. The reading of a  Will before an assembled family has been the source of much television and film drama and there is a good reason for this as it may deliver good or disappointing news. In cinematic interpretations, the reading of the Will is usually played out as an aged lawyer with reading glasses perched on his nose delivers dramatic and crushing news in clipped tones from his leather bound chair before aghast and feuding family members. In reality, there is no reason why a Will must be retained by a lawyer rather than relevant family members, although some lawyers are happy to perform this service. There is also no reason that the contents of a Will must be kept secret, unless the Testator wishes it to be. Indeed, a well drafted Will the contents of which are known and understood by all family members may reduce the risk of surprise and dispute later.

This update briefly considers how a Will may be challenged and while this is not legal advice, it is hoped that this update provides some basic guidance on some important considerations for those contemplating making their Wills to avoid, to the extent possible, a family dispute.

A Will should be clear and unambiguous

The basic rule is that when a Will is interpreted, as far as possible, the Testator’s wishes are followed. To follow the Testator’s wishes the language used to express those wishes must be unambiguous. Ambiguity in a Will can lead to unforeseen problems as it may require the language to be interpreted in accordance with what can be complex legal rules of law and evidence. In short, while the wording should be accorded its plain and ordinary meaning whenever possible, where that does not assist in making the Testator’s intentions clear, then evidence may be admitted to assist with the interpretation, but that evidence cannot contradict a clear intention of the Will.

The short point is that to avoid the chance of dispute a Testator should record his or her intentions as clearly as possible and seek advice in this regard, where necessary.

Issues where problems arise interpreting Wills include leaving the Testator’s property to trustees without stating who the property ultimately goes to, in what shares and when it will be distributed, and leaving a particular asset to a beneficiary when that asset is not owned or is no longer owned by the Testator.

The person making the Will should be in a sound state of mind

Wills may be changed, and the general rule is that the last in time Will of the Testator is the one that will take precedence, hence the language, “This is the last Will and Testament of…”. However, each Will may begin with these portentous words, so it is important that the correct Will is identified and relied upon for the grant of Probate.

A common ground of challenge to a Will, particularly where Wills are changed and earlier versions revoked, is that a later Will was not made when the Testator was of “sound mind”. Because a Will is supposed to reflect the true intentions of the Testator, it is possible that evidence to show that the Testator was not of “sound mind” at the time the Will was made may lead a Court to set it aside as an invalid document in favour of an earlier (in time) and valid Will or intestacy.

However, the question of whether a Testator is of sound mind at the time of execution of a will is often confused with with whether the Testator suffered from physical frailties or poor health generally, or was elderly. But these go to the physical condition, not necessarily the mental condition, of the Testator, and do not necessarily mean the Testator is not of sound mind.

If there is any doubt as to whether a Testator is of sound mind, the Testator should be examined by an appropriately qualified doctor and certified as being of sound mind prior to signing any will.

In the absence of a doctor’s certificate, evidence as to the Testator’s behaviour and understanding, particularly speech, in the days before signing the Will, would be required to establish testamentary capacity if this was challenged.

Another ground of challenge is that of undue influence - meaning that the Will is not really the Testator’s voluntary act but was obtained through unfair pressure placed on the Testator by the beneficiary of the Will.

A Will must not be forged

To be valid a Will must reflect the true intentions of the Testator and a forged Will is invalid because it does not reflect the Testator’s intentions.

The High Court may, after careful consideration of the evidence to show forgery, declare a Will to be forged.

Fortunately, in Fiji we have recently been honoured to have a learned bench of the Court of Appeal examine this area of the law with the leading judgment delivered by Hon. Madam Justice Farzana Jameel in the case of John Jacob Steiner Jnr V Ernie Steiner Civil Appeal No. ABU 0091 of 2015 (Calanchini P, Jameel, JA, Kumar, JA) on appeal from the High Court of Labasa Civil Action No HPP 07 of 2013 where Mr Justice Lyone Seneviratne presided in the High Court.

The Court of Appeal unanimously overturned the High Court judgment on numerous grounds that included, but was not limited to, the High Court Judge's erroneous finding that a Will dated 26 December 1969 was forged.

Forgery is a serious allegation and the Court of Appeal's judgment shows it is an allegation that should be approached and investigated carefully by the Court. The Court of Appeal found that the High Court made a number of errors in its approach to the evidence presented to it that led to its erroneous finding that a Will that had been executed in 1969, and upon which probate had been granted, had been signed with a thumbprint of someone other than the Testator.

Amongst other things, the Court of Appeal pointed out that the High Court had failed to recognise the contradictory evidence of the witnesses claiming a forgery and had wrongly disregarded evidence of a witness to the challenged Will that appeared in the High Court record that the thumbprint of the Testator had been affixed in his presence.

In her learned opinion, Madam Justice Jameel pointed to a number of incorrect factual findings, evidential errors, and errors of law in both probate and land law in the High Court judgment under appeal and this led to the conclusion that the approach of the High Court was of concern. This included, but was not limited to, the significant time that had passed and the effect of the Limitation Act. At paragraph 30, Madam Justice Jameel of the Court of Appeal explained:

“... it is of concern that the High Court did not consider it prudent or even relevant from an evidentiary point of view to probe into whether it was safe to act on the extremely belated, and contradictory evidence of the Respondent and his witness as against the evidence of the Appellant, whose evidence was reflected in the contents of the Will that had been admitted to Probate. ”

The Court of Appeal judgment in Steiner has provided valuable guidance on both the law in relation to the Torrens Title system and in relation to Wills and Probate. Amongst other things, this has also included guidance in relation to an amendment to the Wills Act that provides in sections 6(a) and 6(b) that it is not necessary for a Will to be signed by the Testator but that the two witnesses must be present at the time and be satisfied that the Testator’s true intentions are reflected by the Will. This also enables a Testator who cannot sign to direct another person to sign on his or her behalf. This also explains why a thumbprint may be acceptable and taken to be the Testator’s mark of approval and this is supported by well-known case authorities, that Fiji based practitioners and Judges should be aware of.

Effect of setting aside a Will

If a Will is set aside after a finding of the relevant Court then if there is an earlier Will that is valid that will come into effect, or if there is no Will then the Testator will be declared to have died intestate and the State will determine how that person’s property should be distributed in accordance with the rules of intestacy that generally result in the property in question going to the closest living relatives of the Testator regardless of what the Testator’s wishes may have been.

Amendment to the Law

In 2004 the Wills Act was amended to add a new ‘saving’ provision as section 6A, which provides:

“6A.-(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements under section 6, constitutes a will of the deceased person if the Court is satisfied that the deceased person intended the document to constitute his or her will.

(2) The Court may, in forming its view, have regard, in addition to the document, to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence, whether admissible before or after the commencement of this section, of statements made by the deceased person.

(3) A party that seeks a declaration under this section has the onus of proof."

Thus, even if a document intended to be a Will does not meet the technical requirements of the Wills Act (such as the Testator’s signature being witnessed by two witnesses present at the same time), if there is sufficient evidence that the Testator intended the document to be his/her will, the document may still be accepted as the Testator’s will by the Court if there is sufficient evidence placed before the Court that this was the Testator’s intention.

However, we caution that it is always better to comply with the formal requirements for a valid Will, to avoid uncertainty.

Concluding remarks

Challenges to Wills can driven by emotions arising from personal disappointment and it is important to seek clear legal advice on the evidence and merits of a challenge before instructing lawyers to take the challenge to Court.

An experienced Judge will consider and weigh the evidence brought before her and will also take into account factors like delay and the Limitation Act. As the Court of Appeal has also made clear, Judges must have sufficient knowledge of the law to be capable of probing the evidence and Counsel must prepare accordingly.

It should also be remembered that due principally to lawyer fees challenges are also expensive and may lead to further disappointment, and for this reason Testators should prepare clear and unambiguous Wills that meet the requirements of the Wills Act.

Please note:

This commercial law update is provided for general information purposes only and it is not, and should not be relied on as, legal advice.

For more information on Fiji's Torrens Title system and how the Court of Appeal judgment in John Jacob Steiner Jnr V Ernie Steiner Civil Appeal No. ABU 0091 of 2015 upheld the principles of Fiji's State guaranteed Title system please see our earlier commercial law update that can be found: here (The High Court had also erred when it set aside later transfers of the Land in question in contravention of Fiji's land law system that provides that the State guarantees title to land.) 

If you want a copy of the Court of Appeal judgment in John Jacob Steiner Jnr V Ernie Steiner Civil Appeal No. ABU 0091 of 2015, please contact:

james@sas.com.fj or mary@sas.com.fj