Estate of Miah
[2019] NZHC 1278
•7 June 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-611762
[2019] NZHC 1278
IN THE MATTER OF the Administration Act 1969 AND
IN THE MATTER OF
An application to reseal a grant of probate in the Estate of AFROUZA AKTER MIAH
Hearing: 9 May 2019 Appearances:
R J Hooker for Applicant
B A Scott and S Kettani for AMP Life Limited
Judgment:
7 June 2019
JUDGMENT OF COOKE J
Table of Contents
Background facts[2]
Mrs Miah’s wills and her death[4]
Mr Miah makes claim against AMP[7]
Probate proceedings[11]
Issues raised on affidavits[14]
Other matters[20]
Relevant principles[24]
Does AMP have a caveatable interest?[27]
The recognition of foreign court documents[37]
Should the order nisi be made absolute?[41]
Should probate proceed in solemn form?[44]
Factors in favour of solemn form hearing[45]
Practical consequences of future proceedings[51]
Conclusion[62]
[1] The applicant, Abdur Miah seeks an order under s 71 of the Administration Act 1969 (the Act) recognising an order made by the District Court of Dhaka, Bangladesh
ESTATE OF MIAH [2018] NZHC 1278 [7 June 2019]
granting probate to Mr Miah to administer the estate of his wife, Afrouza Miah. This will mean the foreign probate order will be effective in New Zealand. A caveat has been lodged by AMP Life Limited (AMP) under s 60 of the Act challenging the grant of probate. An order nisi — in effect a temporary order granting probate — was made by the Registrar on 2 October 2018. The terms of that order require the caveator to show cause for its caveat under s 61(a)(ii). In other words AMP has been asked to show why the temporary order should not be made permanent. Mr Miah now asks that the caveat be discharged, and the order nisi be made absolute. AMP asks that the order nisi be discharged, with the effect that the probate order of the Bangladesh Court is not recognised in New Zealand.
Background facts
[2]The background facts are complex.
[3] In June 2006 Abdur and Afrouza Miah both entered into a life insurance policy covering the life of Mrs Miah with National Mutual Life Association of New Zealand Ltd, now AMP (the Policy). The Policy provided a life insurance benefit of $2 million payable on the death of Mrs Miah. It is proceeds of that Policy that are ultimately in issue in this case.
Mrs Miah’s wills and her death
[4] During 2007 Mr Miah faced financial difficulties, and proceedings were brought to make him bankrupt. He was adjudicated bankrupt in April 2007.
[5] Mr Miah says that on 21 April 2007 Mrs Miah left New Zealand for Bangladesh. He says that he stayed in New Zealand to look after their children who were then aged 12 and 7. On 25 April Mr Miah, acting in accordance with a Power of Attorney given to him by Mrs Miah some years earlier, executed what is said to be a will of Mrs Miah appointing him executor and leaving $1,540,000 proceeds from the Policy to the children, with the balance to certain other identified persons, many of whom appear to be creditors. On 5 May 2007 a second will is said to have been executed by Mrs Miah herself in Bangladesh revoking her previous will, appointing Mr Miah her executor, identifying her half share interest in the Policy as her estate,
and leaving it to her children. On 11 May 2007 she is said to have made a third will in Bangladesh appointing Mr Miah her executor, and directing the executor to distribute the proceeds of the insurance “to my family and my creditors”, with the creditors then identified. Copies of all three wills have been put before the Court in evidence. Affidavits have also been provided from those who apparently witnessed the last will.
[6] A few days after apparently executing this third will, on 22 May 2007, it is said that Mrs Miah died in Bangladesh. Mr Miah has put in evidence a copy of what he says is her death certificate. The certificate itself is said to have been issued on 14 June 2010. Mr Miah also says that his wife was murdered. In a memorandum subsequently filed in the Court in relation to probate, his counsel attaches a document purporting to be a translation of Court orders of the District Court in Dhaka identifying that Mr Miah himself had been acquitted of her murder in absentia, but that another person, Billal Hossain, had been found guilty. Counsel for AMP say that this person is Mr Miah’s brother. The verdicts are said to have been entered on 26 November 2009. Mr Miah does not actually mention these matters in his affidavits, however.
Mr Miah makes claim against AMP
[7] On 5 July 2007 Mr Miah submitted a claim under the Policy. AMP did not pay out under the Policy, and after receiving further information avoided the Policy on 19 March 2012 on the ground of material non-disclosure or misstatement of financial information when it was first entered. The Official Assignee appointed under Mr Miah’s bankruptcy assessed the position and concluded that AMP has correctly avoided the Policy, and accordingly no steps were taken to recover the insurance proceeds.
[8] Mr Miah was discharged for bankruptcy in August 2011. On 16 and 17 May he asked the Official Assignee to assign his interest in the Policy to him, but the Official Assignee was only prepared to do so on certain conditions that were not acceptable to Mr Miah. On 21 May 2013 he nevertheless filed proceedings against AMP seeking payment out under the Policy. They were not served until March 2014.
In the meantime Mr Miah unsuccessfully sought to challenge the Official Assignee’s decision.1
[9] On 23 May 2014 AMP applied for summary judgment in the proceeding brought by Mr Miah on the basis that Mr Miah had no standing as his interest in the Policy vested with the Official Assignee on his bankruptcy. Before this was heard Mr Miah amended his claim to add a cause of action to advance a claim in his capacity as executor of his wife’s estate. The summary judgment application was adjourned part-heard in March 2015. AMP had advised they could find no evidence of probate being granted over Mrs Miah’s estate. On 23 July 2015 Mr Miah then disclosed Mrs Miah’s wills of 5 and 8 May 2007. On 24 July 2015 the summary judgment application was resumed, and the High Court granted summary judgment in AMP’s favour on 1 September 2015.2
[10] This judgment was appealed to the Court of Appeal. By judgment dated 8 December 2016 the Court concluded that the interests of Mr and Mrs Miah in the Policy were severable, and that they severed on Mr Miah’s bankruptcy, and that the claim relating to Mrs Miah’s share should accordingly not have been struck out.3 The effect was Mr Miah’s interest had vested with the Official Assignee and any action on that interest would need to have been advanced by the Official Assignee. But the interest of Mrs Miah, which would be vested in her executor, could continue to be advanced in the proceedings.
Probate proceedings
[11] AMP lodged a caveat against probate being granted on Mrs Miah’s will in New Zealand on or about 23 August 2017. Counsel for AMP say that the parties had anticipated that the issue of probate would then be dealt with by the New Zealand Court. But on 25 June 2018 counsel for Mr Miah applied to reseal the order said to have been earlier made by the Bangladesh Court granting Mr Miah probate. It is this memoranda that made reference to the proceedings in Bangladesh in which Mr Miah
1 Miah v Official Assignee [2013] NZHC 2726.
2 Miah v The National Life Mutual Life Association of Australasia Ltd [2015] NZHC 993, [2015] 18 ANZ Insurance Cases 62-083.
3 Miah v The National Life Mutual Life Association of Australasia Ltd [2016] NZCA 590, [2017] 2 NZLR 241.
had been acquitted of murder, although some of those matters had also been referred to in the earlier proceedings in which Mr Miah had sought to challenge the decision of the Official Assignee.4
[12] On 2 July 2018 the High Court in Auckland considered an application by AMP in the proceedings brought against it that the original of the will be sent to the Police handwriting examination section for analysis. The Court declined to make the order as it considered the issue of Mr Miah’s status as executor and the validity of the will would be decided in separate probate proceedings.5
[13] There were exchanges between the High Court Registry and Mr Miah’s counsel which advised, inter alia, that a sealed copy of Mrs Miah’s will needed to be provided to the Court before the Court would reseal the probate order of the Bangladesh Court under s 71. In any event, by application dated 7 September 2018 Mr Miah applied for an order nisi requiring AMP to show cause for the caveat. The Registrar made that order on 2 October 2018. These are the matters that are now before me.
Issues raised on affidavits
[14] A number of affidavits have been filed by the parties. In his first affidavit affirmed on 6 September 2018 Mr Miah describes what had happened to his wife, and annexed copies of the will and the Order of the Court in Bangladesh.
[15] AMP then filed affidavit evidence, including from two advocates enrolled to practice law in Bangladesh. Mr Mizanur Rahman says in his affidavit of 23 October 2018 that his searches at the Dhaka District Court could not find any record of any application concerning the estate of Mrs Miah or the orders in question, and that the documents were not in a familiar format. Mr Moin Ghani also says in his affidavit dated 23 November 2018 that there is a lack of any record of the probate after searches were undertaken, and raises further points about the documents produced — he says that the numbering used on the document is not used in the Court numbering system,
4 Miah v Official Assignee, above n 1.
5 Miah v AMP Life Ltd [2018] NZHC 1634.
that the incorrect paper was used, and that the Judge who would have issued such orders is a different Judge from that suggested. Both these deponents say that they do not believe the orders of the Bangladesh Court filed by Mr Miah are authentic.
[16] A second affidavit of Mr Miah affirmed 20 February 2019 was then filed. This produced a minute from District Judge Islam recording that he had indeed made the order. It also attaches an affidavit from Mr Abdul Bashir who acted as Mr Miah’s advocate in applying for the probate order. That affidavit confirms that he attended the Court and obtained the order of probate.
[17] This was responded to by AMP, including by way of an affidavit from Mr Ismail Tanzeer Khan. Mr Khan explains that he conducted searches of the Court file to identify the Minute of Judge Aminul Islam, which could not be found. In this affidavit Mr Khan says that on discussing the position with the court officers at the District Court in Dhaka he was advised that there was no such Judge called Aminul Islam, and in his view the relevant documents are a forgery. He also says that he has sought to find a record of the advocate, Mr Abdul Bashir, by searching the records at the Bangladesh Bar Council. He says he could find no enrolment of such a person. He also says he tried to contact that person through the phone number he had been provided and that the phone number was unreachable.
[18] Mr Miah then filed a third affidavit in reply dated 7 May 2019. It attaches a further original affidavit of yet another Bangladesh lawyer, Mr Sayed Mohiuddin dated 24 April 2019. Mr Mohiuddin says that he has interviewed Mr Abdul Bashir and that he is satisfied that he is properly enrolled as a Barrister of the Supreme Court of Bangladesh. He also confirms that there is a District Court Judge called Aminul Islam. Mr Miah himself says in his affidavit that he had no reason to doubt that Mr Bashir was an advocate in Bangladesh.
[19] Adding further complexity, at the hearing counsel for AMP passed up an affidavit attaching correspondence that AMP’s solicitors had been provided from Mr Khan. In the letter Mr Khan says that Mr Mohiuddin has been interviewed and had stated that he merely signed the affidavit which had been pre-prepared on
instructions from an agent of Mr Miah, and had said that he did not want to get in any trouble for doing so. The suggestion is that Mr Mohiuddin’s affidavit is not true.
Other matters
[20]There are two further background facts of significance.
[21] First AMP has been seeking that the relevant documents from Bangladesh be forensically examined but Mr Miah through his counsel has indicated that he is not prepared to give permission for this.
[22]Secondly r 1.22 of the High Court Rules 2016 provides:
1.22 Communication with foreign court
(1)This rule applies if, and to the extent that, the court is required, or wishes, to seek the co-operation of a court in another country when dealing with an application under these rules.
(2)The court is entitled to communicate with the foreign court if—
(a)the parties consent; and
(b)the communication is not prohibited by the law of the other country.
(3)When the court acts under subclause (2) it must give the parties to the proceeding an opportunity to be heard on the form of the communication.
(4)The communication and any reply must be treated as part of the record of the proceeding or interlocutory application.
[23] AMP wishes the Court to exercise this power. Counsel for Mr Miah indicates that Mr Miah will not consent to that course. In a minute of 8 April 2019 Churchman J said in this respect:
[10] There is no doubt that the Court, under HCR 1.22, can only act when both parties consent. There is therefore no jurisdiction to make a unilateral order and in the face of the unequivocal communication from Mr Hooker, no point in holding a teleconference.
[11] However, central to these proceedings is the validity of the grant of probate. As the evidence filed on behalf of AMP raises serious questions as to the authenticity of the purported Bangladesh probate, the Court may well draw inferences from the refusal of the applicant to consent to the Court
exercising its powers under HCR 1.22 in circumstances where the Court is likely to derive a considerable assistance from that happening.
[12] The applicant may therefore wish to reflect on the wisdom of continuing to withhold consent to consent to a process, which he would not have any basis to fear if the Bangladesh probate was genuine.
Relevant principles
[24] Against the above background I address the applications before me. Section 61 of the Administration Act 1969 relevantly provides as follows:
61 Where a caveat lodged, court may grant order nisi
…
(c) if before the day named in the order nisi or the day to which the order is enlarged the caveat is withdrawn, the order nisi may be made absolute at any time thereafter:
(d) in any case to which paragraph (c) does not apply, if on the day named in the order nisi, or on the day to which the order is enlarged, the caveator does not appear, the order nisi may be made absolute, upon an affidavit of service; but if the caveator appears, the hearing shall be conducted in the same manner as nearly as may be as in an ordinary action, and the court may order—
(i)that the order nisi be made absolute or discharged; or
(ii)that the application for administration be made in solemn form,—
and any order made under subparagraph (i) or subparagraph (ii) may be with or without costs, as may be just, and, if the court so directs, those costs may be paid out of the estate:
[25] As can be seen by the wording of s 61(d) the Court on the present application is required to do one of three things: order that the order nisi be made absolute; order that the application for administration be made in solemn form; or order that the order nisi be discharged. The reference that the application for administration be made “in solemn form” essentially means that the application should proceed to a full trial with viva voce evidence and cross examination.
[26] The relevant principles involved in the s 61(d) determination were summarised by Katz J in Jurisich v Harris in the following way:6
6 Jurisich v Harris [2016] NZHC 525, [2016] NZAR 754.
[6] If a caveator does not raise sufficient grounds at a s 61(d) “show cause” hearing to establish that a full inquiry should be made into the matters raised by the caveator, then the order nisi will usually be made absolute (final).
[7] On the other hand, if the caveator does raise sufficient grounds to establish that a full inquiry is appropriate, the usual course will be an order that the application for letters of administration be made in solemn form. It is well established that the “show cause” hearing under s 61 will not generally be the appropriate forum for resolving disputed factual issues.7 Rather, if a caveator meets the fairly low threshold8 of satisfying the court that there are sufficient grounds for a full inquiry into the matters that have been raised, the appropriate order is that the application proceed by way of solemn form.9 Such a process requires formal pleadings and a full contested hearing.
Does AMP have a caveatable interest?
[27] The first issue raised by Mr Hooker on behalf of Mr Miah is that AMP does not have a caveatable interest allowing it to oppose the order recognising probate, and that its caveat should be discharged. In advancing that argument Mr Hooker accepts that the Court will need to consider the matters raised by AMP as a matter of substance given that the Court is now aware of them. But he says that AMP has no recognisable interest in the grant of probate allowing it to lodge a caveat and participate in the probate proceeding. Mr Scott for AMP contends that AMP does have a proper interest.
[28] There is nothing in the statutory provisions themselves that identify when a person may legitimately claim an interest that may be protected by a caveat. Section 60 simply states that a person may lodge a caveat. Section 61(a) then says that the Registrar may discharge that caveat if it has or may have been lodged “vexatiously or frivolously”, or alternatively set a time and place “for showing cause against” the grant of administration. Those provisions contemplate that the caveator must establish a reason why the person seeking the order should not administer the estate. But it does not address what standing the caveator must have to do so.
7 van der Kapp v Wilson CA 97/04, 14 June 2005 at [34] and [35]. See also John Earles and others Dobbies’s Probate and Administration Practice (6th ed, Wellington, LexisNexis, 2014) at [49.4.5].
8 Re van der Kaap HC Whangarei CIV-2013-488-579, 21 April 2004; and Re Payne (1989) 2 PRNZ 432 (HC).
9 Earles and others, above n 7, at [49.4.4], citing Re Nissenbaum (Deceased) [1939] NZLR 94 (SC); and Re Payne (1989) 2 PRNZ 432 (HC). See also Re Sweeney (deceased) HC Auckland P2120/88, 9 July 1991.
[29] Mr Hooker relied on a series of decisions from England, Wales, Ireland and the states of Australia addressed to that issue in relation to similar statutory provisions. They date back at least to the decision of the Prerogative Court of England and Wales in Menzies v Pulbrook and Kerr identifying that the caveator must have an interest in the estate itself, and that a person who is a creditor of the estate does not have such an interest.10
[30] Mr Hooker argues that AMP, like a creditor, has no such interest. He contends that AMP is a debtor of the estate, and not even a creditor. It is not a beneficiary, or prospective beneficiary of the estate and has no real interest in the probate issues. The position can be contrasted with a person who would have been entitled to inherit property but for the will in relation to which probate is sought. If probate is sought on that will, the person loses the interest in the estate that they would otherwise have. Such a person has a legitimate interest.
[31] This line of authority recognises the importance of the circumstances of the case in determining whether an interest is sufficient. In Randall v Randall the English and Welsh Court of Appeal more recently distinguished the position of the creditor of a beneficiary, and a creditor of the estate. Lord Dyson MR said:11
… There is no doubt that a creditor of an estate does not have sufficient interest in an estate to bring a probate claim and that Menzies is still good law. But the interests of the two types of creditor are fundamentally different. The interest of the credit or of a beneficiary is to ensure that the beneficiary receives what is due to him or her under the will or on an intestacy. The interest of a creditor of an estate is to ensure that there is due administration of the estate. The creditor of the estate is not interested in which beneficiary receives what.
[32] In O’Brien v Seagrave the English and Welsh High Court recognised a person who would not have a claim under the will, or under intestacy, but who could mount a claim under the inheritance legislation had a legitimate interest. When doing so the Court said:12
10 Menzies v Pulbrook and Kerr (1841) 2 Curt 846; Re Estate of Donal Brendon O’Connell [2014] IESC 55, [2014] 7 JIC 3117; Poulos v Pellicer in the Estate of Coulina [2004] NZWSC 504; and Mataska v Brown [2013] VSC 62.
11 Randall v Randall [2016] EWCA Civ 494, [2017] CH 77 at [22].
12 O’Brien v Seagrave [2007] EWHC 788 (Ch), [2007] 1 WLR 2002 at [9].
… it seems to me that the answer to the question whether she would be recognised as having a sufficient interest so as to be able to seek a declaration would be “yes of course”. I do not accept that a construction of “interest” to include an interest under the Act would open the flood- gates, as [counsel] submits it might. The facts of this case are unusual but if there were others like it, this would merely emphasise the importance of removing a potentially unjust obstacle. There is a further practical reason why one should construe, “interest” to include a potential Inheritance Act claim. If this action could not proceed but the Claimant’s claim under the Act went ahead, then the judge, when considering all the circumstances, might well feel considerable unease about proceeding on a possibly false assumption about the validity of the will. That might in turn lead to Section 121 being invoked and to further delay, uncertainty and expense for this small Estate.
[33] For similar reasons I do not think this question should be approached in an overly technically way. Previous New Zealand authority suggests the question will depend on the circumstances.13 Issues concerning standing are important to prevent people who have no real interest from participating in proceedings. Here the Registrar is already able to control persons who so participate, as he or she can dismiss actions by caveators that are taken vexatiously or frivolously (s 61(a)(i)). The ultimate question is whether AMP has a sufficient interest to allow them to show cause why probate should not be granted. It seems to me that the line of cases I have referred to recognise that there is an interest when the caveator’s financial position is affected by the order sought. Here AMP’s interest arises from the fact that the person seeking to become executor of the estate will by doing so be able to continue with substantial proceedings against AMP that are already commenced. Under those proceedings a substantial amount is claimed against AMP. That claim, or chose of action, can only be advanced by Mr Miah successfully obtains an order that he be the executor. That seems to me to be a legitimate interest that AMP has in contending that Mr Miah should not be allowed to be executor. AMP’s position is analogous to a person who’s entitlements may be removed, or obtained by the grant of probate.
[34] This approach seems to me to be consistent with the purpose of the caveat procedure, which has been described in the following terms:14
[7] … The caveat device, which has both significance and value, is to avoid an ex parte grant of probate in situations where there may be some question about the validity of the will, the testamentary capacity of a testator, or where
13 St Heliers Bay Coffee Lounge Ltd v Klass HC Auckland CP407/87, 8 September 1987 at 9.
14 As cited in Mueller v Hendren (2009) 19 PRNZ 432 at [8] per Priestly J.
undue influence may be operative. The caveat procedure is normally the first step along the path where an executor would have to seek an order nisi and/or seek a grant of probate in solemn form. Those procedural mechanisms enable the issues to which I have just referred to be examined by the Court.
[35] I see it relevant to consider what matters the person is raising to contest probate. The ground of objection to the grant of probate should relate to the relevant interest the person has. Here AMP contends that Mr Miah should not be appointed executor under the will because it says the documents relating to this probate are all forgeries, and that the whole course of events involves the perpetration of a fraud against AMP. It would be extraordinary if AMP had no right to argue that Mr Miah should not be approved as executor in those circumstances. Mr Hooker’s concession that the Court will need to address the issues raised by AMP in any event effectively illustrates this point.
[36] For these reasons I do not accept Mr Hooker’s argument, and conclude that AMP does have a sufficient interest.
The recognition of foreign court documents
[37] There is a second preliminary point that affects the decision to be made under s 61(d). Here the key question is whether the order of the Bangladesh Court provided for the New Zealand Court for resealing is authentic. On that question Mr Hooker relies on the provisions in the Evidence Act 2006, particularly the following provision:
143 Presumptions as to New Zealand and foreign official seals and signatures
(1)Subsection (4) applies to the imprint of a seal that appears on a document and purports to be the imprint of the Seal of New Zealand, or the former Public Seal of New Zealand, or 1 of the seals of the United Kingdom on a document relating to New Zealand, or the seal of a foreign country.
(2)Subsection (4) applies to the imprint of a seal that appears on a document and purports to be the imprint of the seal of a body (including a court or tribunal) exercising a function of a public nature under the law of New Zealand or the law of a foreign country.
(3)Subsection (4) applies to the imprint of a seal that appears on a document and purports to be the imprint of the seal of a person holding a public office or exercising a function of a public nature under the law of New Zealand or the law of a foreign country.
(4)If this subsection applies to the imprint of a seal that appears on a document, the imprint is presumed, unless the Judge decides otherwise, to be the imprint of that seal and the document is presumed, unless the contrary is proved, to have been sealed as it purports to have been sealed.
(5)A document that purports to have been signed by a person as the holder of a public office or in the exercise of a function of a public nature under the law of New Zealand, or the law of a foreign country, is presumed, unless the contrary is proved, to have been signed by that person acting in an official capacity.
[38]There are other related provisions in ss 141 and 142.
[39] There is an issue as to the inter-relationship of sections such as s 143 and the decision that the Court is presently making under s 61(d) of the Act. To some extent the decision to be made under s 61(d) is a procedural one — should the matter proceed to a full hearing, including a full hearing to determine the question concerning the validity of the foreign documentation. It seems to me that the presumption in s 143 does not prevent the Court deciding that there is sufficient uncertainty about the authenticity of documents to justify such a full hearing. Section 143 of the Evidence Act 2006, and s 61 of the Administration Act 1969 need to be interpreted so that they work together in a manner that Parliament must have intended.
[40] But the s 61(d) decision can also be a substantive one. I accept that it would not be appropriate for the order nisi to be completely discharged under s 61(d) on the basis that the order of the foreign court is not authentic unless the presumption in s 143 is rebutted.
Should the order nisi be made absolute?
[41] AMP put forward a number of matters to suggest that the foreign court order, and potentially the other documents relied upon by Mr Miah, are not authentic documents. Mr Scott argued that the matters AMP have raised meant that the order nisi should be discharged in its entirely, and that there was no need for probate to proceed in solemn form. Mr Hooker argued that AMP had failed to discharge the presumption in s 143 and that the order nisi should be made absolute.
[42] The matters relied upon by AMP satisfy me that the order nisi should clearly not be made absolute. I reach that conclusion for the following main reasons:
(a)The circumstances in which the foreign court order was apparently made, and the suggested course of events more generally, are highly suspicious. Mrs Miah supposedly travelled to Bangladesh just as Mr Miah was being made bankrupt. She has then made three wills in short succession in which she left the proceeds of the Policy to Mr Miah and their children. She has apparently then been murdered at the hands of her brother-in-law a matter of days later. This suggested course of events is of itself highly unusual, and raises a legitimate question as to whether improper behaviour is taking place in order that Mr Miah can recover under the Policy (whether it be murder, or fraud). These events all occurred in April and May 2007. The existence of wills making Mr Miah the executor are only revealed by Mr Miah some eight years later, and only after the Official Assignee has declined to assign Mr Miah’s own interest in the Policy on terms acceptable to Mr Miah, and after AMP has applied to strike out his proceeding on the basis that his interest is held by the Official Assignee. The order of the Bangladesh Court granting probate is then only revealed a further year later without Mr Miah giving any indication that he was seeking that probate be granted in Bangladesh rather than in New Zealand.
(b)The second point is that Mr Miah’s affidavits have not addressed the circumstances in a full or transparent way. In his first affidavit he simply stated that his wife had died. He did not say that his wife had apparently been murdered, let alone that she had been murdered by his brother, let alone that he had also been charged with her murder. If there really has been a series of most unfortunate events, I would have expected Mr Miah to fully and frankly reveal them in his evidence. Rather than doing so, information or explanation is provided in an incremental fashion seemingly responding to points as they arise.
(c)Thirdly, the affidavit evidence filed by AMP from three Bangladesh lawyers raises significant issues about the authenticity of the suggested Court documents, and even the existence of the Judge and the lawyer said to have been involved in the grant of probate in Bangladesh. There are affidavits in response from Mr Bashir and Mr Mohiuddin, but they do not clearly resolve that evidential contest in favour of Mr Miah. Given that issues were squarely raised in the affidavits filed by AMP, I would have expected a more compelling response if it were indeed true that the orders are authentic. I recognise that Mr Miah has put forward some material, including a minute apparently from the Judge, but there must be formal documents recognising the existence of both judicial officers and lawyers practicing in Bangladesh that could have been provided if they existed.
(d)The next significant factor related to the nature of the probate order itself. The affidavits of Mr Ghani and Mr Rahman suggest that it is not in the usual form, it is not on the normal paper, or with the normal number that would be expected from the District Court at Dhaka. One of the features referred to is particularly striking in my view. That is that the intituling on the order of the District Court at Dhaka follows the form of intituling that would be followed in the New Zealand High Court. By itself that might be seen as a coincidence, but it also uses the form of court identification number that is used by the New Zealand High Court — the number on the Bangladesh order is CIV-2018-000- 107922. In terms of the numbering system used in the New Zealand High Court, the initials “CIV” indicate that this is a civil claim, “2018” indicates the year in which the proceeding is commenced, the next three digits indicate the Registry of the Court that is in issue (here “000”), and the last digits are the number of the proceeding in that Registry. It would be very surprising if the mode of identification of proceedings by number in the District Court at Dhaka was exactly the same in all respects as that used by the High Court of New Zealand (and used in the proceedings in New Zealand that Mr Miah was already involved in).
(e)Finally there is the feature that Mr Miah will not consent to the original documents being forensically examined, or for the High Court to make enquiries of the Bangladesh District Court at Dhaka under r 1.22 of the High Court Rules 2016. Mr Hooker argued that lack of reliability surrounding administrative and other systems in Bangladesh meant that any such enquiry of the Bangladesh Court would simply create more uncertainty and complexity rather than resolving the issue. I can see how that might be true, but that does not explain why Mr Miah will not consent to this being attempted at least. Mr Hooker made a similar argument concerning the lack of certainty arising from any forensic examination of the documents, but I do not see that as a persuasive response to this request. Both the above matters suggest that Mr Miah is not prepared to allow steps to be taken that would potentially significantly clarify the position. In the case of communication with the Bangladesh Court, this is so notwithstanding the very clear warning Churchman J has given.
[43] Mr Hooker’s argument was that s 143 presumed that the orders were authentic, and accordingly that the orders should be made absolute. As I have indicated, in my view it is consistent with s 143 for the Court to conclude that the application should proceed in solemn form, given there is a legitimate debate about authenticity. But in any event I have reached the conclusion that the s 143 presumption is rebutted for the purpose of the proceeding presently before me. On the basis of the materials I have, I conclude that it more likely than not that these documents are not authentic. That conclusion is based on the evidence placed before me at the present stage, and without the advantage of a further procedure involving viva voce evidence and cross examination. So it does not conclusively determine the question of authenticity. It simply means for the purpose of the proceeding before me the presumption of validity has been displaced.
Should probate proceed in solemn form?
[44] The next question is whether there should now be a trial to resolve these issues (probate in solemn form) or whether the application to recognise the foreign order should be completely dismissed (dismissal of the order nisi) as AMP seek.
Factors in favour of solemn form hearing
[45] The matters outlined in [42] above are compelling and suggest that there are grounds for the Court to conclude that a full hearing is not required. But there are two features of the case that cause me to hesitate in making orders completely discharging the order nisi, and thereby effectively discharging the application to recognise the foreign probate order.
[46] First, the suggestion that these foreign documents have been created as part of an elaborate fraud committed by Mr Miah to preserve his ability to sue AMP does not fully make sense. Under the rules of intestacy that operate in New Zealand, the interest that Mrs Miah had in the Policy passes as to one-third to Mr Miah, and as to two-thirds to their children (s 77 of the Act). Mr Miah would also receive a prescribed initial amount of money under this provision. Furthermore, under r 27.35 of the High Court Rules 2016 Mr Miah would be entitled to be the executor, subject to the normal jurisdiction of the Court to determine otherwise which also applies when recognising the foreign order (s 6 of the Act). This effectively means that an elaborate plan to falsify wills and orders of probate in Bangladesh would seem to be largely pointless. Mr Miah could have achieved all he wished to achieve simply by applying for letters of administration under the rules controlling intestacy in New Zealand.
[47] When I asked Mr Scott what the point of such an elaborate plan could be, he contended that by taking these steps overseas, the potential for forensic examination of the materials was avoided. I do not accept that. All the original documents have now been filed in the New Zealand Court. And in any event Mr Miah would inherit Mrs Miah’s interest under the Policy, and be the executor allowing him to sue, even if there was no will, and no order of the Bangladesh Court.
[48] Nevertheless the fact that the elaborate fraud does not make sense is not a complete answer to the allegations. It is not unusual for persons acting dishonestly to do so on a misconceived basis. But it is a factor to consider in assessing whether AMP has proved that the documents are forgeries.
[49] The next factor that seems to me to be of significance is to consider the position of Mr Miah’s children. If it is indeed true that their mother has been killed at the hands of their uncle (with their father also charged), and that their father has created forged documents in order to advance his financial position, they may have been victims. Assuming that their mother is dead, they are entitled to share in the proceeds of the Policy. The administrator of their mother’s estate should be able to bring proceedings if there is a legitimate claim under the Policy against AMP.
[50] Mr Hooker also made the point that Mr Miah had no reason to doubt that Mr Bashir was who he said he was (a lawyer practising in Bangladesh) or that the order he apparently obtained was a proper order of the District Court at Dhaka. What Mr Hooker was suggesting, although he did not say so directly, was that there is a possibility that Mr Miah has been a victim of some fraudulent actions by a person pretending to be a lawyer in Bangladesh obtaining official court orders. In other words the fact that the documents were forgeries might mean that Mr Miah himself has been the victim of some dishonesty.
Practical consequences of future proceedings
[51] In assessing the significance of the arguments for and against proceeding to a solemn form hearing, it is important to consider the consequences of such a step and whether there are any alternative ways forward. Discharging the order nisi, and thereby finally determining the application to reseal the Bangladesh orders, would not be the end of the road for Mr Miah. He can proceed through either seeking probate of the will in New Zealand, or in the event of intestacy, seek appointment as executor under s 6 of the Act. Both of these options, as I will explain, still raise difficulties, however.
[52] Discharging the order nisi would not prevent Mr Miah applying to the New Zealand Court seeking probate of the same will in New Zealand (as he has in fact
done). It simply removes the question concerning the authenticity of the order apparently made by the District Court at Dhaka from the issues before the court. For the reasons I have already outlined at [46], that debate seems to me to be a distraction, and would involve a further round of arguments at considerable cost and expense for little real benefit.
[53] If Mr Miah were to proceed with his application for probate in New Zealand, the same issues will arise about the authenticity of Mrs Miah’s will. AMP will no doubt contest the authenticity of that will, and the other wills. I see little real point in that argument being addressed. The will only does two things of significance — it appoints Mr Miah the executor, and it directs that the proceeds of the Policy go to Mr Miah and the children. But that is essentially what happens under the intestacy rules in any event.
[54] The only material difference appears to be that under the intestacy rules, the amounts that go to Mr Miah and his children are subject to explicit sums and percentages. The wills are silent on the exact distributions to Mr Miah and his children, although it may be correct (as Mr Scott submitted) that those would be the appropriate divisions under the exercise of discretionary powers under the will. I note Mr Miah’s application dated 7 September 2018 filed in New Zealand not only seeks probate on the last will, but also letters of administration in the alternative.
[55] The identification of Mr Miah as executor either through the wills, or under s 6 of the Act in the event of intestacy, gives rise to a further issue. In Jurisich v Harris Katz J dealt with a decision under s 61(d) in circumstances where the person who had been identified as the temporary executor in the order nisi had not only been previously adjudicated bankrupt, but the Court was satisfied he had acted inappropriately after the order nisi had been granted.15 In those circumstances Katz J held:
[43] As I have noted at [20] above, based solely on the evidence filed prior to the hearing I would have ordered Mr Harris to make his application for letters of administration in solemn form. The difficulty with proceeding down that route, however, is that Mr Harris would necessarily remain as administrator, pursuant to the order nisi, until that application is determined. That is likely to be many months away.
15 Jurisich v Harris, above n 6.
[44] Based on the additional evidence now before the Court, however, it is my view that it is no longer appropriate for Mr Harris to continue in the role of administrator, even on a provisional or interim basis. It is not necessary for me to resolve any disputed factual issues in order to reach that conclusion, as it is based on undisputed evidence including in particular that set out in Mr Harris’s affidavits of 24 and 25 February 2016.
[56] For that reason Katz J discharged the order nisi and appointed the Public Trust as temporary administrator.
[57] For similar reasons it seems to me that Mr Miah should not be appointed executor, and that some other person should be appointed executor under s 6 of the Act. I see the power to be exercised in s 6 to be similar to that arising under s 21 where the Court has indicated that it has a reasonably broad role in deciding whether an executor should be removed.16 This may involve interpreting the discretion more broadly than has been historically applied, but that may be justified in light of the more recent approach to the Court’s supervision of wills and other trusts, and its powers of removal and appointment of trustees.17 The wording of ss 6 and 21 is similar. Section 6 is different from s 21 in that s 6 requires there to be “special circumstances”, but they plainly arise in the present case. Even on what I understand to be Mr Miah’s own version of events his wife was murdered by his brother, and he was acquitted, shortly after Mr Miah was made bankrupt. There is clearly a potential conflict of interest between his personal interests, and those of his children, who are also beneficiaries. In those circumstances it would be more appropriate for another person, such as a professional solicitor known to the Court, to be the executor.
[58] Mr Hooker was strongly opposed to that course when I raised it during the hearing. He said that it would bring to an end Mr Miah’s claims against AMP. I do not see how that can be so. Mr Miah has already gone through very extensive, and presumably expensive, litigation about this matter. The costs that may be involved in a solicitor to act as trustee do not strike me as adding a substantial additional layer of cost. In any event the circumstances alone justify the need for that kind of expenditure. I accept that such a person may decide the claim should not be pursued, just as the
16 Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 144 at [21]–[23].
17 Compare the approach in Tod with In Re Hunter (deceased) [1932] NZLR 911 (CA).
Official Assignee has. But having an impartial person consider that question is the very reason for their appointment.
[59] Unlike the situation in Jurisich v Harris, however, there is no need to appoint an alternative temporary administrator now.18 That is because the only asset that the estate is said to hold is the claim against AMP. Accordingly there does not appear to be any need to preserve the assets of the estate in some way and I do not appoint such a person at this stage.
[60] If a proposal was made for a professional executor to be appointed under letter of administration, this would reduce the contentious issues. I recognise, however, that even with such an application the matter may still need to proceed in solemn form. That is because the only evidence that is available that Mrs Miah is actually deceased is Mr Miah’s affidavit evidence to that effect, and the copy of the death certificate from Bangladesh. AMP has not admitted that Mrs Miah is dead. One potential version of the events is that she has not died at all, but is in Bangladesh, and the possible fraud extends to falsifying her death. Applying for letters of administration may not, therefore, mean that a hearing in solemn form can be avoided.
[61] The prospect of a hearing in solemn form being avoided would be increased if Mr Miah allowed the disputed documents — and particularly the death certificate, and the formal result of the trial in Bangladesh — to be forensically examined. Mr Miah could also consent to the Court communicating with the Bangladesh Court (particularly about the death, and trial for Mrs Miah’s murder) under r 1.22. I accept Mr Hooker’s point that such communication may not necessarily be definitive, and could give rise to further issues about the reliability of information. But that is not a reason for it not to be attempted. If an application is to proceed in solemn form these measures may be appropriate in any event. But to potentially avoid that requirement it would seem to me that such steps should be taken.
18 Jurisich v Harris, above n 6.
Conclusion
[62] I am satisfied that any remaining legitimate matters can properly be addressed in subsequent proceedings, including the application already filed by Mr Miah, and that it is appropriate in all the circumstances for me to discharge the order nisi. What steps will now be taken are accordingly in Mr Miah’s hands.
[63] In his submissions Mr Hooker invited me to grant probate on the formal application that Mr Miah has already filed for the grant of probate or letters of administration dated 7 September 2018. That application was not strictly before the Court at the hearing, and apart from making the observations relevant to the application above I do not think it appropriate to do so.
[64] Given that Mr Miah has been unsuccessful in the orders that he has sought, and AMP have been successful in the orders that it sought, AMP is entitled to costs. My provisional view is that there should be an award of costs on a 2B basis. I will receive memorandum from counsel if costs cannot be agreed. AMP is to file such a memoranda within 10 working days (10 page maximum) and Mr Miah’s response within five working days thereafter (10 page maximum).
Cooke J
Solicitors:
Vallant Hooker & Partners, Auckland Chapman Tripp, Wellington
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