Estate of Miah

• Jurisdiction: New Zealand
• Judge: Cooke J
• Judgment Date: 07 June 2019
• Neutral Citation: [2019] NZHC 1278
• Court: High Court
• Docket Number: CIV-2017-485-611762
• Date: 07 June 2019

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

[2019] NZHC 1278

CIV-2017-485-611762

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Family, Insurance Property — authenticity of probate granted by Court in Bangladesh — caveat lodged by life insurance company — temporary order granting probate — deceased's husband's adjudicated bankrupt — caveatable interest — Administration Act 1969 — Evidence Act 2006

Appearances:

R J Hooker for Applicant

B A Scott and S Kettani for AMP Life Limited

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 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

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,

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...