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Supreme Court of Victoria |
Last Updated: 23 May 2024
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
IN THE MATTER of 54.02 of the
Supreme Court (General Civil Procedure) Rules 2015
-and-
IN
THE MATTER of the Will and Estate of AROTI GHOSH,
deceased
-and-
IN THE MATTER of the GHOSH SUPERANNUATION
FUND
-and-
IN THE MATTER of GHOSH ENTERPRISES PTY LTD ACN 070 687
679
-and-
IN THE MATTER of ss 236(1)(a), 237(1), 247A of the
Corporations Act 2001
BETWEEN:
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-and-
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GHOSH ENTERPRISES PTY LTD (ACN 070 687 679)
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Second Defendant
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GREENHAVEN FUNERALS PTY LTD (ACN 159 798 964)
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Third Defendant
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S PRB 2022 21557
IN THE MATTER of the deceased estate of Aroti Ghosh
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ANABAN GHOSH
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Plaintiff
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NEELANJAN GHOSH
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Defendant
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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ADMINISTRATION AND PROBATE – Plaintiff and first defendant are
brothers – Father passed away in February 2012 and mother
passed away in
June 2022 – First defendant resides in family home in Glen Waverley
– Credit and reliability of witnesses,
particularly the plaintiff and
first defendant – Application by plaintiff for probate of a copy of a will
of the mother dated
in October 2011 – Principles relating to probate in
respect of a lost or copy will – Presumption of revocation animo
revocandi – First defendant seeks that an earlier draft will be
admitted to probate – Principles relating to probate in respect
of
informal wills – Draft will not admitted to probate – Requirements
in respect of lost or copy wills satisfied –Presumption
of revocation
rebutted or overcome – Copy will admitted to probate – Even if copy
will were not admitted to probate,
intestacy rules would apply to an effect
similar to that of the copy will admitted to probate – Whether plaintiff
or first
defendant should be passed over as executor of will – Whether
special or exceptional circumstances shown – Plaintiff
not passed over as
executor – First defendant passed over as executor – Whether first
defendant should be required to
produce documents relating to the estate, Ghosh
Enterprises Pty Ltd and the Ghosh Superannuation Fund – Whether plaintiff,
as executor, should be permitted to inspect the books of Ghosh Enterprises Pty
Ltd – Demediuk v Demediuk [2019] VSCA 79, Ulman v Mom [2022]
VSC 186, Wills Act 1997 (Vic), ss 7 and 9, Corporations Act 2001
(Cth), ss 231, 236, 237 and 247A – Judgment for the plaintiff –
Orders made.
---
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Shiff & Company Lawyers
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For the First Defendant
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For the Second Defendant
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For the Third Defendant
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A. Introduction
1 Even among the cases in the Trust,
Equity and Probate List of the Court, the circumstances of the present case are
lamentable.
2 The principal protagonists are
brothers. Their parents, Biswanath and Aroti Ghosh, passed away on 14 February
2012 and 9 June 2022
respectively.
3 During the
trial, the first defendant, who appeared in person, took issue with a great
number of facts, documents and events, including
aspects of that to which I have
already referred.
4 In that regard, among a
significant number of other things, the first defendant disputed or
‘queried’ –
(a) the plaintiff’s parentage;[1]
(b) the circumstances of his father’s death – in particular, aspects of a death certificate which certifies that Biswanath Ghosh died in Kolkata, India on 14 February 2012 at the age of 70 years;[2]
(c) the circumstances of his mother’s death – among other things, aspects of a death certificate which certifies that Aroti Ghosh died at Monash Medical Centre on 9 June 2022 at the age of 75 years;[3] and
(d) the subsequent findings of a Coroner concerning the death of his mother, including that she died of natural causes on a background of immunosuppression in the context of a complex and significant medical history.[4]
5 The first defendant also gave evidence
that his mother’s body had been ‘mutilated’ after her death.
When asked
what he meant, he referred to ‘extensive mutilation’ and
‘medical technicalities’, but avoided any clear
explanation.[5] Earlier in the
proceedings he seems to have been claiming that his mother was
‘murdered’.[6]
6 Much
of that to which I have referred presented as bizarre and lacking in much in the
way of proportion or reality.
7 Nonetheless, at
trial it came to be common ground that in early 2011 the father consulted
solicitors, Sharrock Pitman Legal (‘Sharrock Pitman’), with a
view to wills and related documents being prepared for both the father and
mother. The documents were never finalised,
and the father later had a dispute
with the solicitors concerning fees. In any event, in April 2011 draft wills
for the father and
mother were drawn and provided to the father and mother by a
solicitor from Sharrock Pitman named Shubha Rau. Late in the trial,
the first
defendant sought and obtained leave to seek a grant of probate in respect of the
draft will prepared in respect of the
mother (‘mother’s draft
will’).
8 The plaintiff deposed that in
late 2011 or early 2012 his father gave him a copy of his will, and that in
mid-2012 his mother gave
him a copy of her
will.[7] The copy wills of the mother
and father are both dated 18 October 2011 and, as I will later explain in some
detail, they are very
similar in
form.[8] The copy wills are also in
some ways similar to the draft wills prepared by Shubha Rau, but there are
differences; including that
neither copy will appears to have been drawn by a
solicitor. The plaintiff deposed that his father said that the draft wills had
been used as templates to make the copy
wills.[9] The plaintiff presently
seeks probate of the copy will of the mother (‘mother’s copy
will’).
9 In response, the first
defendant broadly asserted that –
(a) the plaintiff was not close to the father or mother;
(b) the mother’s copy will is a ‘completely fraudulent document’[10] that had been ‘manufactured’ by the plaintiff or an (unidentified) ‘related party’;[11]
(c) much or perhaps all of what might be thought to be assets in the estate of the mother are, in fact, ‘mine and ... will eventually devolve to me’[12] – particularly, the family home at 18 Hallows Street, Glen Waverley (the ‘Property’), a company named Ghosh Enterprises Pty Ltd (‘Ghosh Enterprises’) as well as some ‘overseas assets’;
(d) in that regard, the first defendant was properly in control of and able to access his mother’s bank accounts;
(e) a self-managed superannuation fund, the Ghosh Superannuation Fund, is not within the ambit of the proceedings or the estate; and
(f) in light of the above, the plaintiff’s proceedings are ‘totally frivolous’.[13]
10 In that general connection, the first defendant sought to advance a range of serious allegations, a significant number of which were directed at the plaintiff. Among other things, the first defendant asserted that –
(a) the plaintiff is a ‘serial fraudster’;[14]
(b) the plaintiff targeted ‘single, vulnerable mothers with assets’;[15]
(c) the plaintiff is connected with ‘animal poaching syndicates’;[16]
(d) the plaintiff transported ‘expired veterinarian medication’ across international boundaries for profit;[17]
(e) the plaintiff tried to ‘fix’ a ‘fraud immigration marriage’;[18] and
(f) the plaintiff threatened the owner of a veterinary clinic.[19]
11 In opening, the first defendant
intimated that relevant witnesses and/or ‘additional evidence’ would
or might be presented.
However, no witnesses were ultimately called, other than
the first defendant himself, and such documentary evidence as was produced
and
tendered went nowhere near establishing the exceptionally serious allegations
made.
12 To the extent that such accusations were
put to the plaintiff in cross-examination, he essentially denied
them.
13 To me, the entire exercise raised a lot
more questions about the first defendant than it did about the plaintiff. I
accept the
plaintiff’s denials of the serious and scandalous allegations
levelled at him by the first defendant during the course of the
trial.
14 In that context, the plaintiff is 50 years
of age and has practised for some years as a
veterinarian.
15 The first defendant is nearly seven
years older than the plaintiff; although when I asked the plaintiff about the
difference in
their ages, the first defendant asked that the response be deleted
from the
transcript.[20]
16 In
any event, in opening the first defendant described himself as a mechanical
engineer with an additional qualification in computer
engineering.[21]
17 Later, in evidence, the first defendant said
that he is not currently working as a mechanical engineer and that he had been
working
in ‘software development’ for ‘a long time’.
He described it as ‘contract work’, performed
‘hourly’,
and said that ‘a lot of it is
online’.[22] It was not clear
how regularly the first defendant actually performs any such
work.
18 The first defendant said that prior to his
father’s death they had worked together in the business of Ghosh
Enterprises.
He described it as an ‘engineering
consultancy’.[23] It seemed
to be common ground that his father had been a civil
engineer.[24] The first defendant
described himself as having performed ‘the software development side of
things for the
company’.[25]
19 The
first defendant suggested that it had been expected that his work with Ghosh
Enterprises would continue.[26]
However, he also gave evidence that by the time of trial the company had not
done any business for ‘a very long
time’.[27] In that regard, he
said that Ghosh Enterprises had no earnings, no bank account and had not
recently filed any tax returns.[28]
It was not clear how any of that was to be reconciled with his evidence
concerning his current work in software
development.
20 In any event, the records of the
Australian Securities and Investments Commission (‘ASIC’)
disclose that –
(a) the Property is the registered office and principal place of business of Ghosh Enterprises – which, during his evidence, the first defendant rather defiantly described as where he lived ‘whether you like it or not’;[29]
(b) for a period of about 10 years and until after her death on 9 June 2022, the mother was registered as the sole director and shareholder of Ghosh Enterprises; and
(c) on 15 July 2022, ASIC received and processed one or more change to company details forms by which the first defendant came to be added as a director of Ghosh Enterprises and substituted as sole shareholder in place of his deceased mother.[30]
21 At trial, the first defendant’s
position was that he owned Ghosh Enterprises and that he had always been
intended to own
it.[31]
22 In
an affidavit affirmed on 20 July 2022, the first defendant deposed that the
shares in Ghosh Enterprises had been owned by him
‘beneficially ... for a
long time now’ and purported to exhibit ‘relevant documents ...
proving this’.[32] In fact,
the affidavit exhibited only the cover page of a copy ‘change to company
details’ form purportedly signed by
the mother on 6 May
2012.[33]
23 In a subsequent affidavit affirmed on 24 July
2022, the first defendant purported to exhibit ‘all pages’ of that
form.[34] However, in oral evidence
the first defendant acknowledged that the exhibited copy document was still
missing a
page.[35]
24 In
another affidavit affirmed on the same day, the first defendant exhibited a
different copy ‘change to company details’
form purportedly signed
by his mother on 18 October
2012.[36] The affidavit described
the form as appointing the first defendant as a director of Ghosh
Enterprises.[37] However, the form
also purported to record a transfer of shares and beneficial ownership, albeit
that changes of that kind had also
been recorded in the copy form purportedly
signed by the mother earlier on 6 May 2012.
25 At
trial, in evidence in chief, the first defendant referred to a third form which
he described as a ‘re-executed transfer’
of Ghosh Enterprises
shares. The third form was seemingly different to the two copy forms which he
had earlier produced (which,
as I have noted, were also different to each
other). Initially, he said that he wanted to rely upon the third form, but then
said
that he needed to find it. He then sought to suggest that the document
fell outside the ambit of the proceedings. Ultimately, he
said that he did not
want to rely upon it and so did not produce
it.[38]
26 In
cross-examination, the first defendant was taken to the forms purportedly dated
6 May 2012 and 18 October 2012 and essentially
acknowledged that neither
had been lodged with ASIC during his mother’s lifetime. He sought to
explain that it had not been
necessary to do so because the company had not been
earning any income or entering into contracts. At the same time, he maintained
that shortly prior to her death his mother had given him instructions to lodge
the documents.[39]
27 In final address, however, the first defendant
proffered a further and seemingly different explanation and said that the shares
had been transferred because of ‘high end enduring contracts’ and
‘trade
secrets’.[40]
28 To
me, the various proffered explanations were in significant tension and none of
it satisfactorily explained why it was that having
apparently not needed to
lodge any such transfer form with ASIC in 2012, or at any time in the
intervening period of about 10 years,
it had become necessary to do so shortly
after the mother’s death and immediately prior to the commencement of
proceedings
by the plaintiff. At that point, on the first defendant’s
account, the company had not done any business for more than 10
years and was
said by him to have ‘zero’ money or
operations.[41]
29 Further,
the first defendant’s oral evidence left it quite unclear as to whether
either of the two forms received into evidence
had been lodged with ASIC on 15
July 2022. Neither was stamped to that effect and, of course, there seemed to
be a third form which
the first defendant chose not to produce to the
Court.[42]
30 It
will be evident that there were real tensions (and, I tend to think, great
improbabilities) in the first defendant’s evidence
concerning the alleged
changes in beneficial ownership of the shares of Ghosh Enterprises and the
ultimate registration by ASIC of
changes in company ownership. While he sought
to advance various purported explanations, I was not satisfied that any of it
would
allow me to safely conclude that the company had ever been
‘his’; beneficially or
otherwise.[43]
31 In
the circumstances, I do not conclude that the first defendant has owned the
shares in Ghosh Enterprises beneficially since 2012,
or that the purported
changes in ownership of that company were properly notified to ASIC on 15 July
2022.
32 Since about 1990, the first defendant has
resided at the Property. Throughout the trial he was apt to describe it as
‘my
property’.[44]
33 It
was common ground that on 23 August 1990, together with his father and mother,
the first defendant was recorded on the title
as a joint proprietor of the
Property.[45]
34 However,
a more recent title search discloses that a transfer of land was lodged on
26 September 2002 and that the registered proprietors
of the Property have
since been only the father and mother (and not the first
defendant).[46]
35 In
opening, the first defendant essentially acknowledged the form of the title, but
referred to one page of a copy document purporting
to be dated 4 May 2012 and to
bear the signatures of the first defendant, his mother and a
witness.[47] The first defendant
described the document as a ‘transfer ... that wasn’t
registered’ and said that the effect
of it had been to transfer the
‘house’ back to him.[48]
36 Shortly thereafter, the first defendant said
–
I will provide additional evidence, in terms of documents that establishes [sic] that I have always owned the property since 1990. The ... name was taken of [sic: off] the title, and transfer documents were executed, transferring the documents back to me, and I will provide evidence ... that ... my mother made statutory declarations, which indicate the existence of a declaration of trust over the house, and she was holding the residential property as a bare trustee for me.[49]
37 The first defendant returned to the issue a little later and said –
I will now be obviously forced to submit some additional documents which will clearly state my mother and father’s intentions as well as documents that declare a trust over some of these assets with me named as a sole beneficiary of that trust, and these are clear documents, Your Honour.
There’s no issue with the signature, the original documents. Even the colour of the pen can be identified. So there’s no issue with the witness stamps. Nothing at all. So [these are] pristine documents. Obviously, I’ll be producing all of them, and the plaintiff will not have a claim to any of the inventory [he has] listed.[50]
38 Two days later, during his evidence in chief, the first defendant produced a transfer of land purporting to have been signed by the first defendant, his mother and a (different) witness and dated 25 May 2015.[51] Albeit that he had referred to producing ‘original’ and ‘pristine’ documents in which ‘even the colour of the pen can be identified’ –
(a) the purported transfer was a copy, not an original; and
(b) the purported signatures were also photocopied and, accordingly, no particular ‘colour of the pen’ could be discerned.
39 In any event, the first defendant
described the copy transfer as having given him ‘sole
proprietorship’ of the Property
in
2015.[52] That said, he also
described it as
‘redundant’.[53]
40 At
the same time, albeit that he had earlier referred to ‘statutory
declarations which indicate the existence of a declaration
of trust over the
house’,[54] in evidence the
first defendant referred to a document described as a ‘declaration of
trust’ which he said had been executed
by his mother on 27 June
2013.[55] Ultimately, however, he
‘refrain[ed]’ from producing that
document.[56]
41 The
reason proffered by the first defendant for refraining to produce the
‘declaration of trust’ was said to be the
prospect that it would
disclose account numbers.[57] In
that, however –
(a) he appeared to me to calculate (internally) that disclosing such numbers might lead to assets being included within his mother’s estate that had hitherto been shielded from view; and
(b) in those circumstances, he appeared to resolve (internally) that it would be more likely to be in his interest to seek to advance assertions concerning the purported effect of the document without actually producing it.[58]
42 All of the above was fertile ground for the cross-examination that followed. In that connection –
(a) the first defendant said that the ‘transfer[s]’ that he had produced were ‘original documents’ and that ‘witnesses exist with original print signature[s]’[59] – but did not produce the original documents, or call any of the witnesses to give evidence;
(b) the first defendant set about advancing a theory that his parents had not been in Australia at the time of the transaction in September 2002 and that they had subsequently sought to remedy it by executing the transfers[60] – albeit that both purported transfers post-dated the death of the father in 2012, neither purported to bear the signatures of both parents and, if the dates of execution borne by those document were to be believed, both were executed many years after the transfer registered in September 2002;
(c) similarly, if that theory was intended to embrace the so-called ‘declaration of trust’,[61] the first defendant had earlier described that document as having been executed by his ‘mother’,[62] not his ‘parents’,[63] and even then it was said to have been dated many years after the transfer registered in September 2002;
(d) as to the curiosity of the circumstances whereby one purported transfer had been executed in May 2012 and a second in May 2015, the first defendant sought to explain that there had been no ‘rush’ to lodge the first transfer and that the ‘years passed by’ following which it had been ‘felt that maybe just re-execute just ... because stamp duties have to be paid and one needs to go to the Land Titles Office and everything’[64] – which made no real sense if, as the first defendant had sought to contend at the outset, the first transfer had been effective;
(e) in any event, no steps seem to have been taken to lodge the second transfer in or after May 2015 even though it was said that the first defendant and his mother had gone to the trouble to ‘re-execute’ it;
(f) in that regard, the first defendant’s explanation for not having produced the second transfer at any earlier time was unconvincing; as was his explanation of the rationale for the making of a ‘declaration of trust’ in June 2013 (when, according to him, a valid and effective transfer had been executed in May 2012);[65]
(g) further, if an equally efficacious ‘declaration of trust’ had been made in June 2013, that made it even harder to understand why it was said to have been thought necessary to ‘re-execute’ a second transfer in May 2015; and
(h) in any event, of course, the first defendant had ‘refrain[ed]’ from producing the terms of the purported ‘declaration of trust’ for examination.[66]
43 After the plaintiff completed his oral
evidence, he applied for an adjournment in order to assemble evidence with a
view to demonstrating,
among other things, that his parents had been out of the
country in September 2002.[67] That
application was allowed, but no such documents were later
produced.
44 The first defendant did, however,
produce and tender several other documents including a copy transfer relating to
the transaction
registered in September
2002.[68] Unlike the documents to
which I have earlier referred, that document appeared to have been executed by
both parents, as well as
the first defendant and two witnesses, one of which was
the plaintiff.
45 Upon that foundation, the first
defendant applied to strike out the proceedings on the basis of the following
quite extraordinary
theory –
... the main application I want to make is in respect of the transfer document relating to 2002 which I’m astonished to find that the transfer was actually fraudulently effected by the plaintiff himself and himself planting as a witness to the transfer. I hadn’t seen that document before. I retrieved that document from the Land Titles Office ... and I saw it for the first time, and I realised what happened in 2002, which is, as I said your Honour. I haven’t determined the exact dates my parents and I were present or not present, but in 2002 it was the year of the Sydney Olympics and my parents were living in Singapore and I was travelling extensively overseas as well. In the month of September and October are the month of Indian Hindu festivities and we generally, me and my parents would go overseas back to India for those particular months.[69]
46 Putting aside the fact that the Sydney
Olympics took place in 2000, not 2002, a further element of the first
defendant’s
theory seems to have been that the plaintiff had claimed not
to know ‘anything about anything’ and that he had been the
‘sole beneficiary’ of the
transfer.[70]
47 I
do not accept that it is accurate to characterise the plaintiff’s evidence
as amounting to a claim that he did not know
‘anything about
anything’. It is also not easy to see how it could be realistic to
describe the plaintiff as having
been any kind of ‘beneficiary’ of
the transaction in 2002 (after all, it occurred about 10 years prior to the
death
of the father and nearly 20 years prior to the death of the
mother).
48 In any event, all of this was, of
course, to accuse the plaintiff of yet another fraud in circumstances in which
the specific allegation
had not been put to the plaintiff in cross-examination
(albeit that many others had).
49 The accusation was
also not obviously supported by the document said to give rise to it. In
particular –
(a) the document appears to bear the signatures of the parents, the first defendant and two witnesses, only one of which was the plaintiff;
(b) the mere signature of the plaintiff as one of the witnesses does not obviously support any contention that the plaintiff had ‘fraudulently effected’ the transaction ‘himself’;
(c) in fact, the document describes the transaction as ‘PURSUANT TO AN AGREEMENT BETWEEN B, A & N GHOSH’ – that is, an agreement made between the father, mother and first defendant; and
(d) consistently with the above, the document identifies the ‘LODGING PARTY’ as having been ‘N. GHOSH’ – namely, the first defendant.
50 Notwithstanding all of the above, it
will be apparent that this further theory (which also came to be advanced in
final address)[71] was materially
different to the position adopted by the first defendant when the case had been
opened only a few days before.
51 There seem to me
to be major questions arising in respect of the relevant evidence and positions
presented by the first defendant.
In the circumstances –
(a) I cannot accept the first defendant’s various assertions that he has ‘always’ owned the Property or that it is currently ‘his’; either beneficially or legally;
(b) as I have indicated, I also cannot accept the first defendant’s various assertions to the effect that he ‘owns’ and has long been beneficially entitled to own Ghosh Enterprises; and
(c) in that connection, I feel no sense of confidence in the various copy documents proffered by the first defendant and do not accept that they are authentic or efficacious.
52 In the context described, it will be evident that upon the mother’s death on 9 June 2022, a dispute of an evolving and multi-faceted kind developed between the plaintiff and first defendant. In general terms, issues arose concerning –
(a) the mother’s funeral and any cremation of her body;
(b) whether the mother’s copy will could or should be probated;
(c) if not, whether the mother’s draft will should be probated or, alternatively, the mother should be determined to have died intestate;
(d) in any event, whether the plaintiff and/or first defendant should be executors (or administrators) of the mother’s estate;
(e) in that context, the existence of and access to documents relating to the mother’s estate and, thus, indirectly –
(i) the identity of any potential assets of the mother’s estate (which, among other things, gave rise to the various assertions of the first defendant that, for example, Ghosh Enterprises and the Property were ‘his’ and the Ghosh Superannuation Fund was irrelevant);
(ii) the first defendant’s actions to alter the register of Ghosh Enterprises after his mother’s death and, potentially, to deal with any assets of the company; and
(iii) the first defendant’s use of the parents’ bank accounts before and after their deaths (which the first defendant claimed occurred with the permission of his mother).
(a) the plaintiff came to commence the present proceedings; and
(b) some but not all of the above issues came to require determination at trial.
B. The proceedings
54 By originating motion dated 18 July
2022, the plaintiff commenced proceeding S ECI 2022 02700. At trial, that was
referred to
as the ‘passing over
proceeding’.
55 Relevantly, the originating
motion sought the following relief –
9.1 Amending the company register; or
9.2 Dealing with the company’s assets.
- An order that the defendant pay the plaintiff’s costs of and incidental to this proceeding, alternatively, the plaintiff’s costs of and incidental to this proceeding be paid and retained out of the estate of the deceased.
11. ... .
56 It will be evident that urgent issues
arose, particularly in respect of the mother’s body, the assets of Ghosh
Enterprises,
the first defendant’s use of the bank accounts and the
prospect that the first defendant might deal with the
Property.
57 The matter came before Gorton J in the
Practice Court on 19 July 2022. His Honour granted interim relief in respect of
the bank
accounts, the Property and the assets of Ghosh Enterprises and
otherwise adjourned the matter to 22 July 2022.
58 On 22 July 2022, his Honour published reasons
and made further orders, including in respect of the mother’s
body.[72] The first defendant was
ordered to pay the plaintiff’s costs of the
application.
59 The first defendant applied to the
Court of Appeal for leave to appeal from the orders of Gorton J and also sought
a stay.
60 On 2 August 2022, the first defendant
applied by summons seeking to vary or lift the orders made by Gorton J in
respect of the
Property, Ghosh Enterprises and the bank accounts. That
application was heard by Moore J on 4 August 2022 and dismissed with
costs.
61 Various orders of a procedural and
timetabling nature were made by Keith JR on 16 September 2022. His Honour
noted that no application
for probate had been filed and that no application for
a grant of representation had been made.
62 On 25
October 2022, the plaintiff commenced proceeding S PRB 2022 21557. At trial,
that was referred to as the ‘probate
proceeding’.
63 The following day, the plaintiff filed an
affidavit of due execution sworn or affirmed by Leading Senior Constable Robert
Hansen,
who was one of the subscribing witnesses to the mother’s copy
will. The other subscribing witness was a Justice of the Peace
named Thi
Phan.
64 On 7 November 2022, the plaintiff filed an
amended originating motion seeking probate of the mother’s copy
will.
65 On 8 December 2022, the first defendant
filed grounds of objection. Among other things, there came to be an issue
concerning the
presumption of revocation animo revocandi. In Welch v
Phillips (‘Welch’), Lord Wensleydale described the
substance of the presumption as follows –
... if a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it.[73]
66 Both proceedings came before Keith JR
on 3 February 2023. Among other things, his Honour ordered that the proceedings
be listed
for hearing together and that evidence in one proceeding be evidence
in the other, subject to any further order. In the passing
over proceeding, his
Honour also ordered that evidence in chief be given by affidavit, subject to any
order of the trial judge, and
made other orders preparatory to
trial.
67 On 10 February 2023, the first defendant
filed a notice of appeal seeking that the orders made by Keith JR be vacated and
that,
in substance –
(a) the two proceedings be heard separately;
(b) the evidence in one proceeding not be used in the other; and
(c) evidence be given orally in both proceedings.
68 On 24 March 2023, J Forrest AJA heard
the first defendant’s applications for leave to appeal from the orders of
Gorton J
and a stay. On 19 April 2023, his Honour determined that the
applications should be
dismissed.[74]
69 The
first defendant subsequently sought special leave to appeal from the High Court
of Australia. That application was dismissed
on the
papers.[75]
70 On
14 September 2023, John Dixon J heard the first defendant’s de novo
appeal from the orders of Keith JR. As his Honour observed, the orders
concerned were in the nature of case management. For reasons
delivered ex
tempore, his Honour essentially remade the orders concerned and made further
orders relevant to the preparation of the proceedings for trial
to commence on
19 March 2024.
71 The first defendant subsequently
applied to the Court of Appeal for leave to appeal from the orders of John Dixon
J and a stay.
Neither application was brought on for hearing prior to the
commencement of the trial.
72 On 22 February 2024,
Barrett AsJ heard applications by the first defendant for various relief,
including that the trial date be
vacated. Among other things, the first
defendant relied upon the fact that his applications to the Court of Appeal had
not yet been
determined. He also sought that the plaintiff’s proceedings
be struck out or summarily dismissed because of what he described
as
‘fraudulent conduct’ and, perhaps alternatively, sought that various
further persons be joined as parties.
73 On 27
February 2024, his Honour delivered reasons for dismissing the first
defendant’s applications.[76]
Among other things, his Honour noted that it would not be appropriate to vacate
the trial date as it would be ‘effectively
... to stay the proceedings
pending the hearing of the application for leave to appeal’ in
circumstances in which r 64.39 of
the Supreme Court (General Civil Procedure)
Rules 2015 confers such a power upon the Court of
Appeal.[77]
74 In that regard, of course, r 64.39 also provides
that except so far as the Court of Appeal otherwise orders ‘an application
for leave to appeal or appeal shall not operate as a stay of execution or of
proceedings under the decision appealed
from’.
75 On 7 March 2024, Goulden AsJ heard
an application by the first defendant seeking the setting aside of a witness
subpoena addressed
to LSC Hansen. The first defendant again asserted fraud, and
also asserted that the proposed evidence would be irrelevant. That
said, it
seems to have emerged that the first defendant proposed to cross examine LSC
Hansen at trial (and, in fact, later did so).
For reasons delivered ex
tempore, her Honour described the application as ‘without merit’
and dismissed it with
costs.[78]
76 During
the trial, the first defendant made various further applications. Many had
echoes of the applications made by him during
the interlocutory stages of the
proceedings. All were determined for reasons given ex tempore and most
were dismissed. That said, as I have earlier noted –
(a) a belated application by the first defendant seeking time in order to assemble further evidence was allowed; and
(b) another belated application by the first defendant made with a view to submitting that the mother’s draft will should be granted probate was also allowed.
77 In the context described, the issues at trial were –
(a) the credit and reliability of the witnesses, particularly the plaintiff and first defendant;
(b) whether the mother’s copy will should be granted probate and, in particular, whether the presumption of revocation animo revocandi has been repelled or overcome;
(c) alternatively, whether the mother’s draft will should be granted probate;[79]
(d) whether the first defendant and/or plaintiff should be passed over as an executor (or administrator) of the deceased’s estate;[80] and
(e) depending upon aspects of the above –
(i) whether the first defendant should be ordered to provide to the plaintiff, as executor, any documents in his possession, custody or control relating to the assets and liabilities of the mother’s estate;
(ii) in that connection, whether the first defendant should be directed to provide to the plaintiff, as executor, any documents in his possession, custody or control relating to Ghosh Enterprises and/or the Ghosh Superannuation Fund, particularly any documents pertaining to the identity of the trustee of that fund and any binding death benefit nomination; and
(iii) whether the plaintiff, as executor, should be authorised to inspect the books of Ghosh Enterprises.
C. The witnesses and other evidence
78 The plaintiff called three witnesses, namely –
(a) himself;
(b) LSC Hansen; and
(c) Michelle Butler, a solicitor formerly employed by the plaintiff’s solicitors, Shiff & Company Lawyers.
79 Each swore or affirmed one or more
affidavits received as their
evidence-in-chief.[81]
80 Several
further documents were also received into evidence in the course of the
plaintiff’s
case.[82]
81 For
his part, as I have noted, the first defendant called only himself to give oral
evidence and otherwise tendered documentary
materials including a large number
of affidavits.[83]
Plaintiff
82 The plaintiff was extensively
cross-examined by the first defendant who, as I have noted, appeared in person.
83 Notwithstanding his evident experience of court
processes and reading of a great number of authorities, the first
defendant’s
cross-examination of the plaintiff was, to say the least, a
lengthy and difficult process. He had great difficulty asking questions
in a
proper form. Commonly his questions were a mixture of lengthy and tendentious
statements covering more than one topic which
were much more likely to provoke
either misunderstanding or an argument than to elicit any kind of responsive
answer. Some of his
questions were astounding; others were insulting.
84 In the circumstances, I was required to lend
some assistance to the first defendant in order that his questions might be in a
form
that the plaintiff could answer. Nonetheless, the process was not terribly
illuminating and the overall style of the first defendant’s
questioning
tended to suggest that it could have gone on for as long as might have been
allowed. For that reason, I ultimately imposed
a time limit. Thereafter, the
first defendant appeared to endeavour to complete his cross-examination within
the time. In the end,
he completed it slightly beyond
time.
85 The difficult circumstances to which I have
referred were exacerbated significantly by what might be described as the family
dynamics.
Albeit that they are each now adults, the fact remains that the older
brother was extensively cross-examining his younger brother
and seeking to
suggest or insinuate that, for example, the younger sibling was not
‘close’ to his parents and not a ‘natural
born son’ of
his parents. As I have earlier noted, the process also involved several
exceptionally serious allegations being
put to the plaintiff; the foundation for
almost all of which seems to have been threadbare, at
best.
86 In my view, the plaintiff did his best
patiently to answer most of the questions asked. His answers were generally
sensible and
he made some reasonable
concessions.[84] To me, that
suggested that he was substantially a witness of
truth.
87 That said, there were a few moments well
into the cross examination in which it might be thought that the plaintiff took
some liberties.[85] However, the
overall circumstances to which I have referred would have been apt to fray the
nerves of the most tranquil witness
and do not regard those relatively isolated
incidents as displacing the likely truth in the overall substance of his
evidence.
LSC Hansen
88 To some extent, the difficulties to
which I have referred were also evident in the cross-examination of LSC
Hansen.
89 LSC Hansen gave evidence concerning his
witnessing of the mother’s original will (of which the mother’s copy
will is
a copy). The first defendant engaged in various explorations in cross
examination, including some preparatory to a suggestion that
LSC Hansen had been
involved in a fraud.[86]
90 The frank responses of LSC Hansen were telling,
and, to me, showed up the first defendant’s intended claims as
baseless.[87]
91 More generally, LSC Hansen presented as a plain
witness of truth.
Michelle Butler
92 As I have earlier noted, Ms Butler is
a solicitor formerly employed by Shiff & Company Lawyers, the solicitors for
the plaintiff.
She gave evidence concerning, among other things, the steps she
took with a view to locating the other subscribing witness to the
original will,
Ms Phan; particularly, Ms Butler’s contact with Aiden Tran, who was said
to be the son of Ms Phan.
93 Early in the trial the
first defendant accused the plaintiff’s solicitors, including
Ms Butler, of concealing information
from him, and the
Court.[88]
94 As with the other witnesses for the plaintiff,
the cross-examination of Ms Butler by the first defendant was not without its
difficulty.
However, she presented in straightforward manner and I accept her
as a witness of truth.
First defendant
95 Notwithstanding his various objections
and appeals in respect of the order that evidence-in-chief be given by
affidavit, the first
defendant affirmed and tendered at trial no less than 24
separate affidavits, many of which exhibited a range of
documents.[89]
96 He
also tendered several further documents in evidence, particularly as the
complexion of his various contentions
developed.[90]
97 It
will be evident from the introduction and history of the proceedings that the
first defendant’s behaviour at trial was
at times quite extreme and
sometimes downright illogical. Whether or not his evidence was untruthful or
simply unreliable, it will
be evident that much of what he was asserting was
simply unpersuasive and cannot be accepted.
98 In
that regard, I have already referred to –
(a) the extreme nature of many of the allegations he sought to advance and the absence of any real corroboration for most or all of them;
(b) the circumstances pertaining to the various copy documents produced and not produced by him over time, including during the trial;
(c) his evident calculations in respect of whether it might be more advantageous to him to produce certain relevant documents or not; and
(d) the shift in his contentions relating to the transaction concerning the Property registered in September 2002.
99 However, that is not sufficient to
completely capture the feeling of unease created by the first defendant’s
conduct during
the trial; particularly during his
evidence.
100 Throughout the trial, he was apt to
seize upon documents and events as supportive of his extreme contentions.
However, that invariably
proceeded upon a jaundiced and wholly unlikely
interpretation of the relevant document or event.
101 For example, in opening, and more than once
during the course of the trial, the first defendant sought to suggest that the
orders
of Gorton J and/or paragraphs [28] and [36] of his Honour’s reasons
dated 22 July 2022[91] meant that
the he was not prevented from ‘registering a previous dealing’ with
the Property and that he ‘could
get that order
varied’.[92]
102 However,
the orders said nothing of the sort, and the paragraphs of his Honour’s
reasons said no more than if there was
a ‘pressing need’ the first
defendant could make application to vary the orders. Whether the orders would
be varied,
of course, would depend upon whether a ‘pressing need’
was demonstrated; it was plainly not an automatic process, and
was not suggested
by Gorton J to be one.
103 In addition, the first
defendant had evidently relied upon those paragraphs of reasoning when applying
to Moore J for the orders
to be varied, but his application had been dismissed
with costs.
104 Notwithstanding all of the above,
however, he continued broadly to suggest that the orders did not relevantly
restrain him and
that he could simply get them varied if he
wished.
105 Similarly, I have already referred to
the first defendant’s bizarre contention that the belatedly produced
transfer of land
dated 26 September 2002 – which, as I have noted, was
signed more than once by the first defendant and specifically identified
him as
having been the ‘lodging party’ – was apt to demonstrate that
the transaction had, in fact, been ‘fraudulently
effected’ by the
plaintiff.
106 Further, Ms Butler gave evidence
concerning emails said to have been sent by her to Aiden Tran in September 2022
and said that
she had not received a response to one of
them.[93] An issue thereafter arose
concerning whether her email account at Shiff & Company could now be
accessed.[94] Ms Butler had earlier
given evidence that she left Shiff & Company in April
2023,[95] after 15 years of
employment there, and it was plain enough that she was not in a position to say
whether or not her email account
at Shiff & Company was now
accessible.[96]
107 Counsel
for the plaintiff later provided an affidavit in which Geoffrey Shiff, a member
of the firm Shiff & Company, deposed
to whether emails of Ms Butler
‘while she was employed as a legal practitioner by Shiff & Company in
2022’ could
now be
accessed.[97]
108 In
that regard, Mr Shiff exhibited emails between a solicitor at Shiff &
Company and Mr Paul Flynn, an information technology
consultant responsible for
the firm’s computer systems and email software. Mr Flynn’s email
referred to the removal
of ‘Michelle’s account ... some time ago
(2022?)’ and confirmed that ‘[w]e no longer have access to her
emails’.
109 With reference to those emails,
the first defendant subsequently applied for summary dismissal of the
plaintiff’s claims.
In that regard, he submitted that the email of
Mr Flynn ‘confirmed’ that Ms Butler’s email account had
been ‘removed
in 2022’, which was said to mean, as I apprehended it,
that she could not have received any email in 2022 from Mr Tran. It
was said
that the fact that Mr Flynn referred to 2022 and that the solicitor concerned
did not subsequently correct him meant that
Ms Butler’s email account
should be taken to have been removed in 2022, not after she left the firm in
April
2023.[98]
110 However,
nothing about that contention was remotely realistic, or persuasive. In that
regard –
(a) it was plain from Mr Flynn’s email that he was not purporting to state precisely when Ms Butler had left the firm – after all, he used the words ‘some time ago’ and put a question mark after ‘2022’;
(b) the real point was whether Ms Butler’s emails could now be accessed, and it was clear from Mr Flynn’s email that they could not; and
(c) the whole idea that Ms Butler – who, as I have earlier indicated, was a straightforward and plainly honest witness – had practiced at Shiff & Company for something like six months after September 2022 until leaving in April 2023, but without any email account during that period, was wholly fanciful.
111 In addition to the above, much of the
first defendant’s behaviour during the case was troublingly argumentative
and evasive,
particularly during his evidence. Many examples could be given,
however the following should be sufficient in order to demonstrate
the
point.
112 At the commencement of cross-examination
of the first defendant, counsel for the plaintiff asked him whether his father
had died
‘in around 2012’, to which he initially replied ‘is
that relevant’, and then said ‘sometime around
that
time’.[99]
113 He was then asked about the death of his
mother, and spoke to his litigation in VCAT concerning her death certificate.
When he
was asked whether his mother had died ‘in June 2022’, he
said that because he was disputing her death certificate he
‘wouldn’t be able to say anything at this
time’.[100]
114 He
was then asked about his brother, the plaintiff, and said –
Well, yes, but there may be more to it. I’m not sure. I can say only from what my mother and father told me.[101]
115 The first defendant then said that he
‘may be ... the natural-born older
son’.[102]
116 The
first defendant confirmed that he had lived with his parents and that he had
been close to them. But when he was asked whether
he had cared for his parents,
the first defendant said that he was ‘not sure’, and asked what
counsel meant by ‘support’.
He then took an objection to being
asked about his mother’s health, as he said it was ‘not an
issue’. When I
directed him to answer the question, he asked counsel to
‘specify the health issues’. When that occurred, he again took
objection. I explained that I had already ruled on the objection and he then
said that he was unable to confirm the date of his
mother’s kidney
transplant ‘off the top of my head, ah, ah, at this
time’.[103]
117 Further
questions ensued concerning the mother’s health, after which the first
defendant was asked whether he had been present
when his mother died and replied
as follows –
Ah, not sure of that either at this time, because, ah, there were some issues there, as I said, with the date and time so – and, ah, the - - -[104]
118 When I confirmed that he was merely being asked whether he was there when his mother died, he replied –
I was in and out, ... . Ah, at that particular moment, was I there? I don’t know. I – but I was in and out because I was the only one handling things. So I was in and out all the time. Ah, so, ah, not particularly sure whether – at the time.[105]
119 A contemporaneous exchange of
WhatsApp messages between the plaintiff and first defendant suggests that the
first defendant was
present at or shortly after the moment of his mother’s
death.[106]
120 Later,
the first defendant was asked whether he had searched the Property for the
mother’s copy will. Initially he said
that there was ‘no need to
search’. He then said that he had searched, but that if you searched
‘each and every
brick in my house for this document you wouldn’t get
it because it simply doesn’t
exist’.[107]
121 When
later asked how many times he had searched, the first defendant said that he
‘wouldn’t know’. He then
said that ‘there’s no
such document, and if there were ... my parents would have told me ... and I
would have a copy
as
well’.[108]
122 When
asked about whether his parents had kept important documents at the Property,
the first defendant replied ‘[w]hat important
documents?’. When
counsel referred to the copy documents that he had produced in the proceedings,
he said ‘[n]o, not
always’. When asked about any other locations
for such documents, he speculated about ‘bank accounts in
India’.[109]
123 Shortly
thereafter, the first defendant was again asked about where he had found the
copy documents produced by him in the proceedings
and said that
‘many’ of them were ‘with’ him, ‘because ... I own
the property’. When asked whether
that meant that the documents had been
‘with you in the property’, he said ‘[n]ot necessarily in the
property’.
When directly asked where he had found them, he replied
‘[a]t this time the – this copy will hasn’t been
established’.[110]
124 Later,
he was asked about his use of his parents’ bank
accounts.[111] In that regard, he
initially referred to the ‘cultural context’, which he said was
‘difficult to understand’,
but ultimately confirmed they were
‘household accounts’ which he said that he had used for
‘household purchase[s]
and
groceries’.[112]
125 When
then directed to the account statements, he said that they had been
‘improperly obtained on the basis of this alleged
copy will which
hasn’t been proven to be a valid
document’[113] and confirmed
that in his view it would necessary to run the case and get a judgment before
access to the bank statements could be
obtained.[114]
126 When
reminded that his point had been ruled against earlier in the case, the first
defendant sought to say that the transactions
after the death of his mother had
been effected ‘for the purpose of the
household’.[115] In
particular, in respect of various transfers made to his personal account at the
National Australia Bank, the first defendant
said –
Well there were expenses and as I said that’s what would happen – this is why the accounts existed. And I said that I continue to have a joint account with my mother and because it’s a joint account that operates that way. So yeah, yes, those are the accounts that were operated on a household basis.[116]
127 When then asked about transactions totalling, by counsel’s calculations, over $40,000, he replied –
I haven’t – they were for various purposes, as I said, in relation to the household in terms of paying bills and also in terms of the exigencies that existed in terms of the cremation and for other issues, including perhaps for filing the coroner’s appeal. So they were for legitimate purposes – reasons which my mother and both my father would have approved of for me to do. They weren’t for any recreational purpose or I kept – I was appealing to the Court of Appeal and I was – they were for legitimate reasons, but yeah. And they haven’t always been – not today, these are not recent accounts. These are accounts to which have been applied for household uses for 33 years or more now, 33 years or more.[117]
128 However, those answers are not easy
to reconcile with the regularity and total sum of the transfers and do not
really explain
why it was necessary for the first defendant to have made
transfers to his personal account rather than simply to use the accounts
concerned to pay any such ‘household expenses’
directly.
129 In addition, noting that the death
certificate records the mother’s date of death as 9 June 2022, it
does seem rather difficult
to accept that eight separate debits from the
mother’s Westpac Choice account on 13 June 2022 in connection with
purchases
at McDonald’s Clayton and McDonald’s Glen Waverley might
fall within the description ‘in relation to the household
in terms of
paying bills and also in terms of the exigencies in terms of the cremation and
for other issues’.
130 Finally, when asked
about the Ghosh Superannuation Fund, the first defendant replied that it was
‘not part of the wills
and probate jurisdiction’ and essentially
confirmed that he would not answer any such
questions.[118]
131 When later asked about whether there were
documents relating to the Ghosh Superannuation Fund at the Property he said
‘no’
and then said that it was ‘clearly established that a
superannuation fund will not be within the ambit of probate’.
Thereafter,
he said –
In terms of the specific question, whether the documentation exists, no, superannuation funds are obviously very, quite technical, and so, no, not in the house, no.[119]
132 When his objection was ruled against,
the first defendant continued to avoid the direct questioning of counsel and
purported to
‘recuse’ himself from
answering.[120]
133 I
perceived much of that to which I have referred and, indeed, much of the first
defendant’s evidence generally, as amounting
to him seeking to avoid
giving any clear answer – even when directed to do so – lest it in
some way stand to undermine
his preferred
narrative.
134 As I have endeavoured to indicate,
that narrative seems to me to have been an altogether unlikely one created via
the warped interpretation
of documents and events together with the selective
production and non-production of documents of dubious provenance and which was
tenaciously sought to be guarded via a screen of exaggeration, omission,
non-answers and attempted misdirection.
135 In light
of the above, I regret to say that I have formed the view that significant parts
of the first defendant’s evidence
are probably untrue, and all of it is
unreliable. I am unable to say exactly where the untruthfulness ends and the
unreliability
begins, although I formed the view that much of his evidence about
transactions and transfers was probably untrue, as was his evidence
about
searches undertaken at the Property for the original wills and any other
documents.
136 It follows that –
(a) I do not believe that any of the first defendant’s written and oral evidence can be relied upon as true without reliable corroboration; and
(b) that extends to many of the documents proffered and sought to be relied upon by him in the course of his evidence.
137 In the sense explained, I do not consider the first defendant to have been a witness of truth.
D. Applicable principles
The mother’s copy will and the presumption of destruction or revocation animo revocandi
138 Where an original will is lost or
unavailable, a copy may be admitted to probate if the court is satisfied that it
is a true copy
and that the original was duly executed.
139 In that regard, in Ulman v Mom
(‘Ulman’), Moore J confirmed that the propounder must
establish that –
(a) the will existed;
(b) the will revoked all previous wills;
(c) the presumption of destruction by the deceased animo revocandi is overcome;
(d) there is evidence of the terms of the will; and
(e) there is evidence of due execution of the will.[121]
140 In respect of the presumption of destruction, in Demediuk v Demediuk, Kaye JA, TM Forrest JA and Champion JA referred to the following passage from the reasoning of Parke B in Welch[122] –
... if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary.
The onus of proof of such circumstances is undoubtedly on the party propounding the will.[123]
141 In that regard, their Honours confirmed that –
(a) the nature and contents of the copy will are of particular importance;[124]
(b) the strength of the presumption may depend on the nature of the testator’s custody over the missing document;[125] and
(c) the Court should take into account all relevant circumstances, including circumstances that existed before and at the time of the making of the missing will.[126]
142 Further, in Ulman, Moore J referred to several relevant principles distilled by Campbell J in Cahill v Rhodes,[127] including the following –
where the Will makes a careful, and complete, disposition of the testator’s property, and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist...[128]
143 In that regard, his Honour referred
evocatively to observations that such presumptions are ‘like bats of the
law, flitting
in the twilight, but disappearing in the sunshine of actual
facts’.[129]
144 I
should, perhaps, add that it is evident in other authorities, including the
reasoning of McMillan J in Re Moschoudis, that the extent of the
enquiries made with a view to locating a missing will can be relevant to whether
or not the presumption of
revocation or destruction is found to have been
overcome. In that instance, for example, the plaintiff made ‘extensive
searches’
for the original will, including at the home of the deceased.
The extent of the searches made, and the fact that they had all been
unproductive, fortified her Honour in concluding that the presumption of
destruction had not been rebutted and, indeed, that the
original will ‘was
probably destroyed by the deceased in his
lifetime’.[130]
The admission of an informal will to probate
145 As I have noted, the first defendant
belatedly applied for and obtained leave to seek that the mother’s draft
will be admitted
to probate. Among other things, that document is unsigned and
not witnessed.
146 The formal requirements for
execution of a testamentary document are stated in s 7 of the Wills Act 1997
(Vic) (‘Wills Act’), and include that –
(a) it is in writing, and signed by the testator or some other person, in the presence of, and at the direction of the testator; and
(b) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time.
147 Notwithstanding the above, s 9(1) of
the Wills Act provides that the Court may admit to probate a document
that has not been executed as required if ‘satisfied that the person
intended the document to be his or her
will’.[131]
148 In that connection, s 9(3)(b) of the Wills
Act states that the Court may have regard to ‘any evidence of the
testamentary intentions of the testator, including evidence of
statements made
by the testator’.
149 In that regard,
contemplation by the testator of a further document that he or she intended
would be a will tends to negative
any assumption that the earlier document could
constitute a will.[132]
Intestacy
150 If neither the mother’s copy
will nor the mother’s draft will can be admitted to probate, it seemed
ultimately not
to be in issue that the intestacy provisions would
apply.[133]
151 In
that regard, s 70ZG(1) of the Administration and Probate Act 1958 (Vic)
(‘A&P Act’) provides that –
If an intestate leaves no partner but leaves a child or children, the residuary estate is to be distributed to the surviving child, and if more than one, in equal shares if none of the intestate’s child or children predeceased the intestate leaving issue of that child who survived the intestate.
Passing over
152 Generally speaking, a named executor is entitled to a grant of probate. It follows that –
(a) the jurisdiction to pass over an executor will only be exercised in special or exceptional circumstances;
(b) in that connection, the Court will have regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate; and
(c) sufficient circumstances may be present when the particular executor has a conflict of interest and/or the relationship between named executors is such that there is ‘no realistic expectation that they will be able to work together in the interests of the estate’.[134]
153 The plaintiff submitted, and I accept, that essentially the same principles apply to whether an administrator should be removed or, in practical terms, passed over.[135]
Entitlement to assets and documents
154 As I have noted, if appointed
executor or administrator, the plaintiff seeks that the first defendant be
directed to provide him
with such documents relating to the assets or
liabilities of the deceased’s estate as are in his possession, custody or
control,
including any documents relating to the Ghosh Superannuation Fund, any
binding death nomination form and/or pertaining to the identity
of the trustee.
155 In that general connection, the plaintiff
relies upon s 13(1) of the A&P Act, which provides that –
Upon the Court granting probate of the will or administration of the estate of any deceased person, then subject to any limitations expressed in the grant all the hereditaments or all the hereditaments then unadministered of such person, whether held by him beneficially or in trust, such vest as from the death of such person in the executor or administrator to whom such probate or administration is granted (as the case may be) for all the estate therein of such person ... .
156 For his part, the first defendant submitted that nothing within or relating to the Ghosh Superannuation Fund could be an asset of the estate.[136]
157 As I have noted, if appointed
executor or administrator, pursuant to certain provisions of the Corporations
Act 2001 (Cth), the plaintiff also seeks that he be authorised to inspect
the books of Ghosh Enterprises.
158 Those provisions
state relevantly as follows –
231 Membership of a company
A person is a member of a company if they:
(a) are a member of the company on its registration; or(b) agree to become a member of the company after its registration and their name is entered on the register of members; or(c) become a member of the company under section 167 (membership arising from conversion of a company from one limited by guarantee to one limited by shares).
...
236 Bringing, or intervening in, proceedings on behalf of a company
(1) A person may bring proceedings on behalf of a company, or intervene in any proceedings to which the company is a party for the purpose of taking responsibility on behalf of the company for those proceedings, or for a particular step in those proceedings (for example, compromising or settling them), if:
(a) the person is:(i) a member, former member, or person entitled to be registered as a member, of the company or of a related body corporate; or
(ii) an officer or former officer of the company; and(b) the person is acting with leave granted under section 237.
237 Applying for and granting leave
(1) A person referred to in paragraph 236(1)(a) may apply to the Court for leave to bring, or to intervene in, proceedings.
(2) The Court must grant the application if it is satisfied that:(a) it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them; and(b) the applicant is acting in good faith; and
(c) it is in the best interests of the company that the applicant be granted leave; and
(d) if the applicant is applying for leave to bring proceedings—there is a serious question to be tried; and
(e) either:(i) at least 14 days before making the application, the applicant gave written notice to the company of the intention to apply for leave and of the reasons for applying; or(ii) it is appropriate to grant leave even though subparagraph (i) is not satisfied.
(3) A rebuttable presumption that granting leave is not in the best interests of the company arises if it is established that:(a) the proceedings are:
(i) by the company against a third party; or
(ii) by a third party against the company; and
(b) the company has decided:
(i) not to bring the proceedings; or
(ii) not to defend the proceedings; or(iii) to discontinue, settle or compromise the proceedings; and
(c) all of the directors who participated in that decision:
(i) acted in good faith for a proper purpose; and(ii) did not have a material personal interest in the decision; and(iii) informed themselves about the subject matter of the decision to the extent they reasonably believed to be appropriate; and
(iv) rationally believed that the decision was in the best interests of the company.
The director’s belief that the decision was in the best interests of the company is a rational one unless the belief is one that no reasonable person in their position would hold.
(4) For the purposes of subsection (3):
(a) a person is a third party if:(i) the company is a public company and the person is not a related party of the company; or(ii) the company is not a public company and the person would not be a related party of the company if the company were a public company; and
(b) proceedings by or against the company include any appeal from a decision made in proceedings by or against the company.
247A Order for inspection of books of company or registered scheme
(1) On application by a member of a company or registered scheme, the Court may make an order:(a) authorising the applicant to inspect books of the company or scheme; or(b) authorising another person (whether a member or not) to inspect books of the company or scheme on the applicant’s behalf.
The Court may only make the order if it is satisfied that the applicant is acting in good faith and that the inspection is to be made for a proper purpose.
(2) A person authorised to inspect books may make copies of the books unless the Court orders otherwise.
(3) A person who:(a) is granted leave under section 237; or(b) applies for leave under that section; or
(c) is eligible to apply for leave under that section;
may apply to the Court for an order under this section.
(4) On application, the Court may make an order authorising:(a) the applicant to inspect books of the company; or(b) another person to inspect books of the company on the applicant’s behalf.
(5) The Court may make the order only if it is satisfied that:(a) the applicant is acting in good faith; and(b) the inspection is to be made for a purpose connected with:
(i) applying for leave under section 237; or(ii) bringing or intervening in proceedings with leave under that section.
(6) A person authorised to inspect books may make copies of the books unless the Court orders otherwise.
159 For his part, the first defendant submitted that s 247A of the Corporations Act applies only to ‘current members’ of a company.[137]
E. The mother’s copy will and related issues
160 As I have earlier indicated, the
plaintiff seeks a grant of probate of the mother’s copy will and,
belatedly, and in an
endeavour to avoid an intestacy, the first defendant came
to seek a grant of probate of the mother’s draft
will.
161 The issues are linked, at least in the
manner in which they were argued, because the first defendant pointed to several
circumstances,
including several features of the mother’s copy will, and
submitted that it was a ‘fabricated document’ and that
paragraphs of
it had been ‘lifted’ from the mother’s draft will. It
followed, it was submitted, that the mother’s
draft will should
‘carry much more weight’ and be granted
probate.[138] In that regard, the
first defendant explained that –
... the draft wills [of the mother and father] remain the only sets of documents that are produced by a solicitor. I think they carry much more weight. And especially because it also refers to my father’s previous accountant [Mr Mookerjee], another professional man, so I think they carry much more weight than [the mother’s copy will].[139]
162 Somewhat at odds with that
submission, the first defendant also maintained that the draft wills were
surrounded by ‘elements
of undue influence, coercion,
suspicion’[140] and that
there was a question concerning the extent to which his father’s
instructions to Ms Rau of Sharrock Pitman could be
said to have been ‘the
reliable instructions of my
mother’.[141]
163 In
that regard, during his evidence, and prior to seeking that the mother’s
draft will be granted probate, the first defendant
had insisted that –
(a) his father had been taken to Sharrock Pitman’s office ‘forcibly’ and ‘didn’t want to go’;[142]
(b) the mother’s draft will ‘should not exist’;[143]
(c) clause 5 in the mother’s draft will was not instructed by her as she was in a rehabilitation centre at the time;[144] and
(d) the mother’s draft will was ‘not the will for which the grant [of probate] has been applied for’.[145]
164 In any event, after making the application to which I have earlier referred, and during final address, the first defendant came to submit that –
(a) a solicitor (Ms Rau) had explained the terms of the draft will to the father and so ‘one can presume that my father would have explained it to my mother’;
(b) the mother’s draft will is ‘for all practical purposes [a] formal will’; and
(c) the principles relating to informal wills do not apply to the mother’s draft will.[146]
165 In light of the above, as I have
earlier noted, it came to be essentially common ground that in 2011 the father
retained Sharrock
Pitman for the purpose of preparing wills and powers of
attorney for the father and the mother.
166 In that
regard, Sharrock Pitman’s file came to be produced to the Court and
exhibited to affidavits affirmed by the plaintiff
and first defendant
respectively.[147] From those
documents, it is evident that –
(a) on 12 January 2011, the father attended Sharrock Pitman’s office, together with the plaintiff, in order ‘to discuss Wills and Powers of Attorney’, very likely with Ms Rau. It seems that the father gave instructions in respect of a family trust that was shortly to vest, an ‘existing company’ identified as being Ghosh Enterprises, a ‘Self-Managed Superannuation Fund’ which was said to be being ‘closed soon’, a proposed legacy to the first defendant of $250,000 comprising money held in a ‘US [b]ank account’ in the sole name of the father for use by the first defendant ‘should he return to the US’ and the Property. In respect of the Property, it is recorded that the first defendant ‘had contributed money towards this’ and ‘had initially been a registered proprietor together with him and Aroti but was later removed’. It is also recorded that no succession planning was required for the family trust, no documents were required to be prepared in connection with Ghosh Enterprises and it was not necessary for the self-managed superannuation fund to be reviewed. In that context, the Property is described as being ‘the most significant estate asset’, and instructions were given for the first defendant to receive it, and the sum of $250,000, with the balance of the assets – ‘being shares and funds in bank accounts’ – to be bequeathed to the plaintiff. In light of the ‘inequality’ of provision as between the first defendant and plaintiff, Ms Rau gave advice and the father was recorded as instructing that he would ‘consider the issues with respect to the property further and instruct ... on the finalisation of the Will’;[148]
(b) the father subsequently spoke with Ms Rau by telephone on 20 January 2011 concerning, among other things, ‘the option of adding Neelanjan as a joint proprietor to the property now in addition to him and Aroti’. Ms Rau subsequently called the State Revenue Office to ‘discuss the Stamp Duty implications’ and advised the father concerning ‘the estimated Stamp Duty’. The father was ‘not keen on spending money to obtain a ruling’ from the State Revenue Office and, at the end of the conversation, instructed that ‘he would be considering the options further’;[149]
(c) the father spoke with Ms Rau by telephone again, likely on 10 February 2011, in respect of the powers of attorney, which were to be ‘drafted first while they were considering options on the property’, as well as a suggestion made by ‘his accountant’ in respect of a ‘Three Generation Testamentary Trust’ in order ‘to prevent TFM’, which Ms Rau is recorded as having said that she would ‘look into’ and advise further, albeit that the father wanted the powers of attorney ‘emailed the next day’;[150]
(d) by letter addressed to the father and mother dated 14 February 2011, Ms Rau sent draft powers of attorney for the father and mother together with a letter recording certain instructions, including that ‘you intend for your property at 18 Hallows Street, Glen Waverley to be inherited by your son, Neelanjan Ghosh’ and that ‘funds in a bank account in the United States ... will be bequeathed to Neelanjan’. The letter included advice in respect of different ways in which steps might be taken in respect of the Property, including potential issues arising in respect of each option; and also recorded that the father had instructed that ‘you do not necessarily intend for Neelanjan to live at 18 Hallows Street, Glen Waverley’;[151]
(e) the father responded by email dated 24 February 2011 concerning the draft powers of attorney;[152]
(f) the father sent a further email on 27 February 2011, instructing that the earlier email be ignored, and giving instructions in respect of both the powers of attorney and ‘Wills for both of them’.[153] In respect of the wills, Ms Rau recorded as follows –
... bequeath to Neelanjan the property plus the sum of $200,000.00 including simple interest being payable on this from September 2007, bequeath the remaining assets to Anaban with the requirement that an adjustment be made between the 2 sons if there is any difference in the value of the benefits received by each of them. These instructions were different to those provided on 12 January 2011. Gave me contact details for Aroti as well.[154]
(g) Ms Rau later described those instructions as ‘new’ and ‘very different’,[155] although the father seems to have claimed that there was ‘no material change’;[156]
(h) in any event, by letter dated 8 April 2011, Ms Rau gave further advice and provided the father and mother with amended draft powers of attorney, draft wills and a disclosure statement;[157]
(i) in that regard, the letter of 8 April 2011 included detailed advice in respect of specific clauses of the draft wills, which included advice concerning at least one specific issue in respect of which certain further instructions were requested. The letter asked that ‘any necessary amendments’ be advised and an appointment be made ‘to execute the originals’;[158]
(j) as to the draft will of the father[159] –
(i) the document was five pages in length – four of which contained the 18 clauses of the will and were stamped ‘draft’; and the fifth, which comprised a title page bearing the testator’s name and the address and other details of Sharrock Pitman;
(ii) the mother was to be appointed executor and trustee of the father’s estate unless she predeceased him; in which case the executors and trustees would be the first defendant and ‘my accountant Sagnik Mookerjee’;
(iii) if the mother survived 30 days beyond the father she would inherit the whole of his estate;
(iv) however, if she did not, then the first defendant would be bequeathed a pecuniary legacy of $200,000, plus a sum of interest calculated from 1 September 2007, together with the Property and its contents as well as being permitted to continue residing in it, and the plaintiff would be given the balance of the estate, all subject to the calculation of an ‘equalisation amount’ and adjustments between the first defendant and plaintiff;
(v) if the father did not possess the Property at the date of death, then his estate should be divided between the plaintiff and first defendant;
(vi) if any child of the father should die without attaining a vested interest, that interest would fall to any child or children of the deceased child (as tenants in common);
(vii) the father had already gifted the plaintiff the sum of $200,000 in his lifetime; and
(viii) it thereafter provided for execution by the father and two witnesses;
(k) the draft will of the mother was practically identical to that of the father,[160] albeit that –
(i) for perhaps formatting reasons, the operative text comprising 18 clauses and provision for execution and witnessing spilled into a fifth page, and there was a sixth page that was the cover page;
(ii) the substance of the initial alternative was, of course, in reverse; so that if the mother should predecease her husband, he would be the executor and trustee and inherit the whole of her estate.
(l) it seems that a dispute developed almost immediately in respect of fees, commencing in a telephone discussion later that day between the father and Ms Rau in which the father is recorded as having said, among other things, that ‘they had not finalised their thoughts on the Will and wanted to talk to me about this’. Later the same day, the father called again to say that he was happy to go ahead in respect of the power of attorney. However, he later called again and left a voicemail in which he said that he was not happy with the amendments made to the financial powers of attorney;[161]
(m) on 11 April 2011, the father sent a fax on behalf of himself and the mother to say that ‘they will not be proceeding further’ and, on 12 April 2011, faxed again to say that they ‘do not wish to proceed’;[162]
(n) Ms Rau addressed the father’s allegations of ‘misleading and deceptive’ conduct in a comprehensive letter dated 14 April 2011, in which she referred to the work done, including advice given in respect of the different instructions which had been given at different times, and nonetheless offered a without prejudice reduction in fees as a gesture of goodwill. That letter referred to the need to ‘attend to the finalisation of your Wills and Powers of Attorney’, including a signing conference and a final letter ‘enclosing copies of such signed documents for your records’;[163]
(o) on 21 April 2011, the father responded by fax asserting that ‘2 sets of costs’ had been mentioned, that there had been ‘no material change in instructions’ and that ‘they would not have proceeded with the Wills if they knew the costs as they already have a current Will’ and had been concerned only about the powers of attorney;[164]
(p) it seems that the father sent a further fax to similar effect on 9 May 2011 after Sharrock Pitman had rendered a bill, and that on 5 July 2011 Sharrock Pitman sent a letter of demand to which, I infer, there was no response;[165]
(q) on 11 July 2011, Sharrock Pitman Legal commenced Magistrates’ Court proceedings against the father and mother in order to recover the outstanding fees;[166]
(r) in response, the mother seems to have claimed in her defence that, among other things, her husband had no authority to act for her, Sharrock Pitman was trying to ‘intimidate them’ and her husband had been under ‘depressing family circumstances’ owing to her own (unspecified) illness – to which Ms Rau noted that the husband had been able to think through issues clearly and had given instructions on behalf of his wife;[167]
(s) for his part, the father seems to have referred in his defence to, among other things, ‘2 sets of costs’, the disclosure statement having been ‘deliberately concealed’, the documents not having finally been approved and –
... that the Will and Powers of Attorney for the wife were to be finalised only after she had had a conference with me as he had not authority to act on her behalf.[168]
(t) the proceeding was heard at the Magistrates’ Court at Ringwood on 3 October 2011. The father and mother did not appear. Orders were made that each pay Sharrock Pitman $2,758.90 plus interest and costs;[169] and
(u) subsequently, terms of settlement may have been proposed or entered into between Sharrock Pitman and the father and mother by which, among other things, the total sum of $3,500 would be paid and the orders obtained on 3 October 2011 set aside with no order as to costs. In that document, which is undated and unsigned, Ram & Associates are recorded as having been the solicitors for the father and mother.[170]
167 The following observations may be made concerning the Sharrock Pitman documents –
(a) despite the claims evidently later made by the father and mother in the context of Magistrates’ Court litigation, and subsequently by the first defendant in the present proceedings, the documents suggest that the father freely attended Sharrock Pitman’s offices and gave instructions on behalf of himself and his wife and was quite capable of doing so;
(b) in that regard –
(i) the father seems to have spoken comprehensively to the assets potentially involved, particularly a family trust, Ghosh Enterprises, a self-managed superannuation fund, a bank account in the United States and the Property; and
(ii) the father evidently considered himself competent to deal with the family trust, Ghosh Enterprises and the self-managed superannuation fund without any need to get advice or have resolutions prepared by Ms Rau in order that proposed steps might be taken;
(c) the Property was clearly understood by Ms Rau to be ‘the major asset’ in any estate[171] and the father plainly instructed Ms Rau that the first defendant was not then a joint proprietor of the Property and, indeed, that he ‘had initially been a registered proprietor together with him and Aroti but was later removed’;[172]
(d) consequently, the documents stand firmly against the first defendant’s various (and earlier rejected) claims to the effect that he had ‘always owned the property’, his ‘parents’ had ‘subsequently sought to remedy’ the 2002 transaction by executing transfers back to him and that the 2002 transaction had been ‘fraudulently effected by the plaintiff himself ... [by] ... planting [himself] as a witness to the transfer’;
(e) notwithstanding the comprehensive instructions evidently given by the father concerning various assets, no mention seems to have been made of any assets in India, Singapore, Thailand or any other such place – as was speculated by the first defendant at various points during the trial;
(f) the draft wills of the father and mother were provided by Ms Rau on 8 April 2011 and, in that connection –
(i) both are stamped ‘draft’ on every page of substance;
(ii) the covering letter requested further instructions in respect of a specific issue, contemplated that there could be ‘necessary amendments’ and also contemplated that a further ‘appointment’ would be required;
(iii) that same day the father telephoned Ms Rau and said that ‘they had not finalised their thoughts on the Will and wanted to talk’;
(iv) three days later, the father confirmed that ‘they would not be proceeding further’, which was re-confirmed the following day; and
(v) the father and mother did not thereafter proceed with the draft wills, although there was further correspondence with Sharrock Pitman in connection with the dispute over fees; and
(g) whilst the father is recorded as having asserted that ‘they already have a current Will’, that occurred in the course of other dubious posturing by him in connection with the fee dispute with Sharrock Pitman. If there had been ‘a current Will’, it seems to me that it would have been referred to by the father and produced at the initial conference with Ms Rau in order to illustrate why it was that new wills were required. However, the notes relating to that conference include no suggestion that anything of the sort occurred and no such earlier will was produced in the present proceedings.
168 I should, perhaps, make it clear that
there are aspects of the Sharrock Pitman documents that do not reflect well on
the father
or mother. Noting that the first defendant resided with his father
and mother until their respective deaths, and that he gave evidence
that he
worked with his father in the business of Ghosh Enterprises, the behaviour of
the father and mother evident in the documents
to which I have referred is in
some ways strikingly similar to some of the behaviour of the first defendant
during the course of
the present
proceedings.
169 That brings me to the copy wills of
the father and mother;[173]
although the starting point seems to me to lie in a consideration of some of the
differences between the father’s draft will
and his copy will (which would
seem to have been drawn roughly six months after his draft will was provided by
Ms
Rau).[174]
170 Broadly,
much of the structure and technical language evident in the father’s draft
will is similar to that appearing in
his copy will. In particular –
(a) both have a title page as well as a similar overall intent and number of clauses;[175]
(b) in that connection, much of the technical language appears to be reproduced and so is the capitalisation of significant terms;
(c) further, both make an initial distribution of the estate to the wife and, beyond that, to the first defendant and plaintiff; and
(d) in the latter event, a specific gift of the Property is made to the first defendant (if at that point, the father retains the Property) with the residue to go to the plaintiff and an ‘equalisation’ payment to be made between the plaintiff and first defendant, as required.
171 That said, there are two differences of obvious substance between the father’s draft will and his later copy will –
(a) in the event that the wife should predecease her husband, clause 2 of the draft will appoints the first defendant and ‘my accountant SAGNIK MOOKERJEE’ as executors and trustees; by contrast, clause 2 of his copy will appoints the first defendant and the plaintiff; and
(b) clause 5 of the draft will directs specific pecuniary legacies to the first defendant, which are later also referred to in clauses 10 and 18; however, no equivalents of clauses 5 and 18 appear in his copy will, and the equivalent of clause 10 is modified to delete the references to clause 5 and its subject matter.
172 Beyond that, there are a considerable number of more minor differences, including that –
(a) the title page of the father’s draft will is titled ‘WILL’, numbered the fifth and final page of the document and carries the overall styling of a document produced by solicitors, including that the date is left largely to be completed at the top of the page and the address and other details pertaining to Sharrock Pitman appear towards the bottom of the page. By contrast, the title page of the copy will bears no page number, is titled ‘LAST WILL’, states the date below the title in the form ‘18th Day Of Octoberber 2011’ (sic) and includes no solicitor’s details or file reference;
(b) each page of operative text in the father’s draft will includes no title details, date or page references. By contrast, each such page in his copy will includes the testator’s name, the word ‘WILL’, the date ’18th of September 2011’ and the notional page number ‘... Of 5’;
(c) the introductory words of the operative text of the father’s draft will refer to the testator’s occupation (‘Retired’) and include the lower case words ‘last will’. By contrast, no occupation is identified in his copy will and the words ‘LAST WILL’ are there capitalised;
(d) clause 2 of the father’s copy will introduces the words ‘jointly or severally’; which do not appear in the equivalent clause 2 of his draft will;
(e) clauses 3 and 4 of the father’s copy will are, in effect, the same clauses from his draft will but reversed in order;
(f) clause 6 of the father’s draft will refers to and defines ‘the Property’ and also refers to ‘my death’; by contrast, the equivalent clause of his copy will (clause 5) alters the definition to a more personal form (‘the house Property’) and, at the same time, depersonalises the reference to death (‘the death’);[176]
(g) clauses 7, 9 and 13 of the father’s draft will use the expression ‘DEVISE AND BEQUEATH’; by contrast, each of the equivalent clauses in his copy will uses ‘DEVISE AND BEQUETH’ (emphasis added);
(h) clause 7 of the father’s draft will uses the expressions ‘my right title and interest’ and ‘my furniture and other articles and effects’; by contrast, the equivalent clause in his copy will (clause 6) uses the less personal ‘the right’ and ‘all furniture’ and adds the concluding words ‘should he survive me by thirty (30) clear days’;
(i) clauses 10 and 11 of the father’s draft will correctly cross-refer back to the distribution of the Property to the first defendant effected by ‘Clause 7’; by contrast, the equivalent clauses in his copy will (clauses 9 and 10) retain the references to ‘Clause 7’ – albeit that the cross-references are there strictly incorrect;
(j) clause 10 of the father’s draft will refers to a potential ‘equalisation amount’ to be paid by the first defendant to the plaintiff ‘within sixty (60) days’; by contrast, the equivalent clause in his copy will (clause 9) refers to ‘ninety (90) days’;
(k) clause 13 of the father’s draft will uses the word ‘notwithstanding’; by contrast, the equivalent clause in his copy will (clause 12) uses the typographically erroneous ‘not withstanding’;
(l) clause 14 of the father’s draft will uses the expression ‘born after the death of the survivor of such deceased child of mine and me’; by contrast, the equivalent clause of his copy will (clause 13) uses the expression ‘born after the death of such deceased child of mine’;
(m) clause 14 of the father’s copy will specifically addresses the case in which a deceased child of the testator ‘is not survived by any child or children’; by contrast, his draft will contains no direct equivalent (although the specific case would very likely be covered by clause 14 of the draft will without specifically addressing it);
(n) the witnessing words in the father’s draft will include the word ‘hereunto’; by contrast, his copy will uses the word ‘hereunder’; and
(o) the signing words in the father’s draft will are aligned with the adjacent brackets, line of dots and name of the testator; by contrast, the same details in his copy will are out of alignment.
173 The overall character of the
differences highlighted above suggests both that they were not made by a
solicitor and that they
were, in fact, likely to have been carefully considered
and made by the father (and perhaps the mother also) using the draft wills
as a
guide.
174 In that regard, the copy will bears no
reference to any solicitor and introduces many personalised features (and,
conversely,
depersonalised features indicative of personal consideration of the
particular issue) as well as typographical and other features
that a solicitor
is much less likely to have made or
introduced.
175 In particular, the more major
alterations (and one specific retention) are indicative of considerable personal
deliberation.
In that regard –
(a) in circumstances where the father’s copy will broadly seeks to achieve equality of outcome between the plaintiff and first defendant, it seems to me to be unsurprising that they would be made joint executors and trustees rather than the first defendant together with an accountant;
(b) it is also unsurprising that the monetary legacies made to the first defendant in the father’s draft will would be deleted when the equalisation equation may well simply lead to part of any such legacy being paid through to the plaintiff;
(c) the retention of a specific distribution of the Property to the first defendant is indicative of continuing personal consideration of that issue – which is also consistent with the evidence relating to the living arrangements at the Property over a long period of time; and
(d) the creation of the new clause 14 in the copy will – which is specifically directed to the circumstance in which the ‘deceased child’ is not survived by any child or children – seems indicative of particular consideration in respect of the anticipated or potential circumstances of the respective brothers.[177]
176 In that general connection –
(a) I note that the father was a qualified civil engineer, seems to have practised in several different countries over many years and to have had a professional grasp of English as well as at least some legal concepts;
(b) in that regard, as I have earlier noted, the father indicated to Ms Rau that he did not need any advice or assistance in relation to any issues arising in respect of a family trust, Ghosh Enterprises and the self-managed superannuation fund; and
(c) as a matter of timing, the copy will includes two dates – a typewritten date of ‘18th of September 2011’ in the header at the top of each operative page, the typewritten ‘18th Day Of Octoberber 2011’ (sic) on the title page and the handwritten ‘18th’ of ‘October’ on the final operative page – and both dates fall after the fee dispute had arisen between the father and Sharrock Pitman, and after he had told Ms Rau that ‘they had not finalised their thoughts on the Will’ and then told Ms Rau twice (by fax) that he did not wish to proceed.
177 In light of the above, the father
seems to have been a person with some degree of confidence in the use of the
English language
and, I would think, apt to consider himself competent to
consider and modify the expression of his testamentary intentions, if
required.
178 That said, the overall style of the
father’s copy will, as well as the typographical, cross-referencing and
other infelicities
evident within it, seem to me to be indicative of an absence
of any true drafting expertise in the author. In my view, the prevalence
of
those features in the document suggest that the father, or the father and mother
in combination, were the authors of the father’s
copy will; not a
solicitor.
179 In addition, as I have indicated, the
dates borne by the father’s copy will are also consistent with the father
or father
and mother having drawn it, not
solicitors.
180 As I have also earlier indicated,
the terms of the mother’s draft will are much like those of the
father.
181 Strikingly, however, save for the
substitution of her name and the reversed position in respect of the primary
gift and appointment
as executor and trustee, all other relevant aspects of the
mother’s copy will appear identical to that of the father’s.
182 In particular, as compared with the
mother’s draft will, the following features of her copy will are identical
to those
appearing in the copy will of the father –
(a) the major alterations;
(b) the specific retention;
(c) the typographical, cross-referencing and other errors and infelicities; and
(d) the differing dates.
183 In that context, it is of particular note that –
(a) the signing particulars of the mother’s draft will read as follows –
SIGNED by the Testatrix as for her last Will and Testament in the joint presence of herself and us who at her request and in such joint presence have hereunto subscribed our names as witnesses:-[178]
(b) however, the signing particulars of the mother’s copy will read –
SIGNED by the Testator as for his last Will and Testament in the joint presence of himself and us who at his request and in such joint presence have hereunto subscribed our names as witnesses:-[179]
184 The latter particulars are, of
course, in precisely the form of the signing particulars in the father’s
copy will.
185 In addition, in both documents the
adjacent brackets, line of dots and testator’s name are misaligned in
exactly the same
way.
186 Those features, together
with the other similarities in detail as between the mother’s copy will
and that of the father,
suggest that –
(a) the father’s copy will was very likely the guide for the preparation of the mother’s copy will; and
(b) the mother’s copy will was therefore likely drawn by the father or father and mother in combination and not by a solicitor.
187 As I have earlier noted, the first defendant variously submitted that the mother’s copy will was ‘a completely fraudulent document’, ‘a copy-paste scan [sic: scam]’ and ‘fabricated’.[180] In that connection, he directed attention to textual features such as –
(a) the ‘two dates’ in the document;
(b) ‘multiple paragraphs’ that are ‘identical to’ or, he said, ‘lifted’ from the ‘draft wills’ which, he submitted, meant that the mother would not have understood or comprehended ‘any of the material’; and
(c) ‘a missing p5’.
188 More broadly, of course, the first defendant relied upon matters such as –
(a) his denial that the original of the copy will was or would be ‘in my house’ together with the allied contention that the plaintiff had not made every effort to locate the original will;[181]
(b) his attack upon the witnesses to the original will as, for example, ‘suffering dementia’ (Thi Phan), ‘changing signatures all the time’ (LSC Hansen) and for failing to initial all pages; and
(c) his multifaceted and scandalous attacks upon the credit of the plaintiff.
189 It was generally on the back of that
combination of contentions that the first defendant submitted that the
mother’s draft
will is ‘for all practical purposes formal’ and
that a grant of probate in respect of it was ‘more
appropriate’.[182]
190 In
my view, essentially none of the above can be accepted. I have already referred
to and rejected the first defendant’s
credit attacks on the plaintiff, and
explained that his own evidence cannot be relied upon as truthful.
191 Specifically, however –
(a) I have referred to the evident genesis of the mother’s copy will and, in that context, the ‘two dates’, ‘missing p5’ and other such infelicities pointed to by the first defendant are, in my view, merely some among many minor errors and infelicities in that document that indicate that it was likely drawn by the father or father and mother in combination – not that it is incomplete or otherwise the product of any fraud by the plaintiff;
(b) further, I do not accept the first defendant’s various submissions concerning the evidence of LSC Hansen, the absence of Thi Phan (and her son, Aiden Tran) and the evidence of Ms Butler. I have earlier indicated that LSC Hansen and Ms Butler each presented in an entirely honest and straightforward manner. In that connection –
(i) while LSC Hansen acknowledged that his signature had altered over the years, and that he used a different signature when signing police documents, he explained why all of that was so.[183] I accept his explanation and reject any suggestion that there was anything sinister or unreliable about any of it;
(ii) LSC Hansen confirmed that his signature and stamp appear on the mother’s copy will and while he could not specifically remember witnessing the document he described the usual procedure by which he signed and witnessed such documents in a room at the Glen Waverley police station occupied by a Justice of the Peace and, again, I accept that evidence;[184]
(iii) I do not accept that it was necessary for LSC Hansen or the Justice of the Peace to have initialled the foot of every page of the mother’s will;
(iv) having regard to the evidence of LSC Hansen, I am satisfied that the mother’s will was witnessed by him in the presence of a Justice of the Peace who also witnessed the mother’s will and do not regard it as significant that the plaintiff did not also call Thi Phan to give any evidence about that event, or her son, Aiden Tran;[185]
(v) in that regard, I accept the evidence of Ms Butler concerning her efforts to locate Thi Phan, and her discussion with and emails to Mr Tran;[186] and do not regard any aspect of that as giving rise to any real doubt that the mother’s will was witnessed by LSC Hansen and a then Justice of the Peace, Thi Phan, at the Glen Waverley Police Station on 18 October 2011; and
(vi) in my view, none of the evidence to which I have referred provided any cogent or other real support to the first defendant’s suggestion that the mother’s copy will was a ‘fraudulent document’ in which signatures had been ‘lifted’. Indeed, when it was suggested to LSC Hansen that he had earlier acknowledged such a possibility, he could not recall any such event and intimated that it was more likely that he had said that he was not prepared to comment upon whether it was possible or not (which evidence I accept);[187]
(c) I should perhaps add that upon an examination of the signing pages of each of the two copy wills,[188] I consider it to be most unlikely that the signatures and stamps on those documents were ‘lifted’ and therefore that either document was ‘fraudulent’. In that regard –
(i) each of the two draft wills is unsigned and unwitnessed;
(ii) both copy wills are signed, witnessed, stamped and hand dated on the same day – 18 October 2011;
(iii) there was no evidence concerning any other documents from which the signatures and stamps of the witnesses, in particular, could have been ‘lifted’;
(iv) upon a close comparison of the signing pages of the two copy wills –
A. the handwritten date on the mother’s copy will includes the year ‘2011’(albeit that the final ‘1’ seems to be cut off). By contrast, the handwritten date on the father’s copy will appears not to include the year;
B. the signatures of LSC Hansen are very slightly different in each document (in particular, in the mother’s copy will the essentially horizontal stroke is almost touching the round part of the signature below it; but in the father’s copy will the essentially horizontal stroke is both shorter and some distance above the round part of the signature below it);
C. further, both of LSC Hansen’s stamps in the mother’s copy will are in slightly different places and at slightly different angles when compared with the same stamps appearing in the father’s copy will; and
D. the signatures of Thi Phan are also very slightly different to one another, and, again, the stamps are placed very slightly differently;
(v) in the circumstances, it seems to me to be most unlikely that the signatures or stamps in one document could have been ‘lifted’ and used in the other; and
(vi) it follows that it is much more likely that each document was duly executed and witnessed on the same occasion at Glen Waverley police station on 18 October 2011, as the appearance of the respective copy wills would suggest to have occurred;
(d) I do not accept the first defendant’s contention that his mother would not have understood her will. He did not lead any cogent evidence that she was cognitively impaired[189] and I accept the plaintiff’s evidence to the effect that she was to some degree fluent in English and could speak it (and therefore understand it) ‘very well’;[190]
(e) further, the first defendant said that it could be presumed that his father would have explained the draft will to the mother and it seemed implicitly to be acknowledged that she would have understood her husband’s explanation;[191]
(f) in that regard, while the first defendant resisted any conclusion that the father could therefore have explained the will to the mother, it seems to me that the father’s evidently intimate involvement in the preparation of both wills makes it likely that he understood and discussed the testamentary intentions there expressed with his wife and that, accordingly, she understood the effect of her will before executing it;
(g) I do not accept that the first defendant searched his house for the original will and did not find it – his evidence on that topic presented as particularly evasive and likely to be untruthful;
(h) having regard to the evident genesis of the two draft wills and two copy wills, the mother’s draft will is plainly informal in the sense that it does not comply with the requirements of s 7 of the Wills Act;
(i) further, the intentions expressed in the mother’s draft will are significantly different to, and superseded by, the testamentary intentions expressed in the mother’s copy will;
(j) in addition, in contrast to the mother’s draft will, her copy will is specifically entitled ‘LAST WILL’;
(k) it follows that I cannot accept that the requirements of s 9 of Wills Act are satisfied – specifically, I do not accept that the mother intended that her draft will should be her will; and
(l) accordingly, a grant of probate cannot be made in respect of the mother’s draft will.
192 That brings me to the
plaintiff’s further evidence concerning the mother’s copy will and
the principles relating to
a grant of probate in respect of a lost or copy will,
including the presumption of revocation animo
revocandi.
193 In that connection, of course,
the plaintiff in some respects relied upon the evidence of LSC Hansen and Ms
Butler, which I broadly
accept.
194 In addition,
however, the plaintiff deposed as follows –
(a) having regard to the lapses in time, I do not find it surprising that the plaintiff would have found certain details to require refreshment;
(b) when he explained that his memory had been refreshed he did so, in my view, quite openly and satisfactorily;
(c) in the circumstances –
(i) I do not accept that the plaintiff deliberately concealed information or sought to mislead the Court in his evidence; and
(ii) nor do I accept that any of the first defendant’s various cross-examination points cast any real doubt upon the plaintiff’s credibility as a historian or witness.
198 Similarly to the above, the first
defendant variously suggested that the plaintiff was, in effect, not
‘close’ to
his parents (or worse); which suggestions the plaintiff
essentially denied.
199 In that regard, the
plaintiff gave evidence that, for example, he and his father had spoken
‘all the time’;[194]
and it seemed ultimately to be accepted that the plaintiff had accompanied his
father to the conference at Sharrock Pitman in January
2011 and had also
attended his father’s funeral in India the following year. The plaintiff
also produced a family photograph
depicting, among others, himself and his
mother.[195]
200 In the circumstances, there seems to me to be
no real substance in the suggestion that in and after 2011 the plaintiff was
insufficiently
‘close’ to or estranged from his
parents.
201 In any event, the real importance in
the above evidence of the plaintiff is that –
(a) the father handed the plaintiff a copy of his will in late 2011 or early 2012 and said that the father and mother had used the draft wills as ‘templates’ to prepare their ‘final wills’ and that the original wills were kept at the Property;
(b) the mother gave the plaintiff a copy of her will in 2012, after the death of the father; and
(c) the first defendant has not permitted the plaintiff to access the Property to search for the mother’s original will.
202 The latter point was plain in the
atmosphere at trial as well as in the first defendant’s defiant references
to ‘my
house’; albeit that in final address the first defendant
sought to divert attention from the point via submissions directed
to the
allegedly insufficient efforts of the plaintiff to search for the original
will[196] and to ask the first
defendant for it.[197]
203 In my view, the manner in which the first
defendant gave his evidence and conducted himself generally with respect to the
issues
in dispute demonstrates that any such request by the plaintiff would have
been entirely fruitless.
204 Further, in
circumstances in which –
(a) the copy will was drawn by the father or father and mother, and not solicitors;
(b) the father and mother had long lived at the Property and it was the major asset specifically identified in the conference with Sharrock Pitman, the two draft wills and the two copy wills;
(c) at least some and perhaps all of the documents produced by the first defendant at trial seem to have originated from the Property (specifically, a drawer referred to by the first defendant in his evidence), and no other specific location from which any such documents were retrieved was ever identified; and
(d) the first defendant had long lived in the Property with his parents and might reasonably have been thought to be likely to survive them –
the one location that cried out to be properly searched was the Property.
205 However, as I have noted, the first
defendant seemed implicitly and quite implacably opposed to any such prospect
and his own
evidence on the topic was the epitome of
evasiveness.
206 The other points in the
plaintiff’s evidence were broadly supported by other evidence to which I
have earlier referred.
In that regard –
(a) the father or father and mother did prepare a ‘LAST WILL’ for the father in about September or October 2011 and used his draft will as a ‘template’;
(b) at about the same time, the father or father and mother prepared a ‘LAST WILL’ for the mother using his will as a ‘template’ and thus indirectly used the draft wills;
(c) the father is likely to have sufficiently discussed that document with his wife and she is likely to have understood the final testamentary intentions expressed in it; and
(d) both the father and mother attended the Glen Waverley police station on 18 October 2011 and executed each such documents before witnesses as their ‘LAST WILL’.
207 It follows, in my view, that the
plaintiff’s evidence concerning the copy wills is substantially consistent
with the underlying
evidence and I would accept it.
208 For completeness, I should add that the
plaintiff was cross-examined about that evidence and essentially confirmed it.
Having
seen the plaintiff confirm and explain that evidence, I do not consider
there to be much in the way of doubt about
it.
209 In that context, counsel for the plaintiff
referred to the principles relating to copy or lost wills and frankly, and in my
view
quite appropriately, acknowledged that the ‘most difficult
aspect’ is whether the plaintiff has overcome the principle
of revocation
animo
revocandi.[198]
210 In
that regard, I readily accept that the other principles relating to lost or copy
wills are presently satisfied. In particular,
it is apparent from the existence
and terms of the mother’s copy will, together with of some of the other
evidence to which
I have referred, that –
(a) the original will existed;
(b) the mother’s copy will is evidence of the terms of that original will;
(c) in its terms, that will revoked all previous wills; and
(d) the original will was duly executed in the presence of two witnesses.[199]
211 As I have indicated, the first
defendant made much of the limited extent to which the plaintiff had conducted
searches and other
enquiries with a view to locating the original will.
However, in the unusual circumstances of the present case, I tend to think
that
the point is of considerably less significance and weight than might otherwise
be the case.
212 The glaring point, as I have
indicated, is that to this point it has evidently not been possible to reliably
search the place
in which the father said that the original wills were kept, and
in which, on the evidence, it seems most likely that the original
wills would
have been located.
213 In those circumstances, it
seems to me to be of very limited significance that, for example, the plaintiff
has not advertised
with a view to locating the mother’s original will in a
host of other places in which it was or is either most unlikely to
be found or
it is no more than wholly speculative as to whether it could ever be
found.
214 As I have earlier noted, the authorities
emphasise that, in effect, the presumption of revocation is just that, and that
in assessing
the weight to be given to it, and ultimately whether it is
overcome, consideration must be given to the whole of the relevant evidence
received, particularly in respect of –
(a) the terms of the copy will;
(b) the nature of the custody over the document; and
(c) any other relevant circumstances.
215 In the present instance, the genesis
and terms of the copy wills of the father and mother constitute a very careful
and apparently
complete disposition of their respective estates.
216 In that regard, it is apparent that particular
thought was given to distributing the Property to the first defendant, if he
continued
to live there at the time of their passing, and otherwise in seeking
to achieve a position of overall financial parity in any distributions
made to
the first defendant and plaintiff
respectively.
217 Further, as I have noted, unlike
the two draft wills, the copy wills of the father and mother are each entitled
‘LAST WILL’
and are duly executed and
witnessed.
218 In that connection, it is evident
from the plaintiff’s evidence concerning his respective discussions with
the father and
mother that –
(a) the father gave his copy will to the plaintiff;
(b) the father said that both original wills were kept at the Property;
(c) the mother also gave her copy will to the plaintiff;
(d) the mother said that she was giving it to the plaintiff ‘for safekeeping’ and that he would need to use it after her death; and
(e) on several subsequent occasions, the mother said, in effect, that she wanted her estate to be divided equally between the plaintiff and first defendant – which, I have noted, is essentially the effect of her copy will.[200]
219 That is, both parents contemplated
that the documents which they respectively gave to the plaintiff would remain
and be the testamentary
document operative at the time of their respective
deaths.
220 I should, perhaps, add that in giving a
copy of her will to the plaintiff for ‘safekeeping’ and use after
her death,
it is quite unlikely that the mother had the presumption of
revocation animo revocandi in mind.
221 In
those circumstances, the careful disposition relevantly undertaken by the
mother’s will – by which the plaintiff
is distributed the Property
and the financial position is ultimately one of equal division between the sons
– does not make
it obvious that there would have been good cause for the
mother later to have destroyed it without creating a duly executed
replacement.
222 That is, of course, particularly so
in circumstances where the terms of the will quite understandably address
circumstances particular
to the first defendant and otherwise give effect to the
ultimate testamentary outcome which the mother thereafter continued broadly
to
express.
223 Further, there is no evidence that the
mother expressed any desire to revoke her will at any time after 2011 and prior
to her
death in 2022; and for her to have destroyed her will without creating a
duly executed replacement would have been contrary to both
the trouble which the
father and mother had gone to in preparing and executing their own wills, and
having them appropriately witnessed,
and also essentially contrary to the
statements made by the mother when she gave a copy of her will to the
plaintiff.
224 In addition, of course, it has not
been possible for any reliable search to be undertaken in the very place which
the father said
that the original wills would be kept. In the circumstances,
there must be a very significant prospect that the reason that the
mother’s original will has not yet been located is not because it was
destroyed by the deceased with the intention of revoking
it.
225 In light of the above, while the wisdom
encapsulated in the presumption of revocation animo revocandi must be
acknowledged, it seems to me that this is one of those cases in which the
relevant circumstances are such that it is most
unlikely that that the
mother’s original will was destroyed by her prior to her death and,
indeed, it is most likely that the
original will existed in the very place which
the father said it was located and which has not subsequently been able to be
reliably
searched.
226 Accordingly, I accept that
–
(a) in the unusual circumstances of the present case, the presumption of revocation animo revocandi has been shown to be repelled or overcome; and
(b) a grant of probate should be made in respect of the mother’s copy will.
227 It follows from the above that there
is no need to consider and apply the intestacy
rules.
228 In that regard, however, it may be noted
that the outcome achieved by the making of a grant of probate in respect of the
mother’s
copy will is more personal to the first defendant, and therefore
more outwardly advantageous to him, than if the intestacy rules
were to be
applied.
F. Passing over
229 In light of the above, the copy will
relevantly appoints the plaintiff and first defendant as joint
executors.
230 In that regard, as I have earlier
noted –
(a) the plaintiff points to various aspects of the first defendant’s behaviour and submits that he should be passed over; and
(b) in response, albeit that he did not formally seek such relief, the first defendant contends that it is ‘more appropriate’ that he be sole executor and, in effect, that the plaintiff should be passed over.
231 It will be evident that the latter
contention cannot be accepted, as least in so far as it is directed to passing
over the plaintiff.
232 In that regard, among
other things, the first defendant’s bizarre and other scandalous
contentions concerning the plaintiff
cannot be accepted and have earlier been
rejected.
233 Further –
(a) the plaintiff is an established professional man and, for the most part, presented quite appropriately in evidence;
(b) following the mother’s death, the plaintiff retained solicitors and took appropriate steps in order to deal with her body and with a view to administering her estate; and
(c) the plaintiff has undertaken to collect and administer the estate according to law.[201]
234 As to the plaintiff’s contention that the first defendant should be passed over –
(a) by her copy will, the mother has appointed the plaintiff and first defendant as joint executors and might be said to have taken some measure of account of their relationship and personalities when doing so;
(b) the Court must be slow to disturb that plain expression of testamentary intention – indeed, special or exceptional circumstances must be demonstrated in order that the first defendant should be passed over as executor;
(c) that said, sufficiently special or exceptional circumstances have been found to arise in cases where the executor concerned has a significant conflict of interest and/or is quite unable to co-operate with the other executor or executors in the administration of the estate under the will; and
(d) in the end, the welfare of beneficiaries is the primary consideration.
235 In that context, the mere fact that
the mother appointed the first defendant among her executors does not mean that
she must be
taken to have forever condoned any and all kinds of aggressive,
unco-operative and destructive behaviour by
him.
236 In that regard, I tend to think that it is
likely that the first defendant’s behaviour has become considerably more
bizarre
and extreme since the mother’s death.
237 In particular, a significant exchange of
WhatsApp messages took place between the plaintiff and first defendant leading
up to
the mother’s death at Monash Medical
Centre.[202] In the course of
that exchange –
(a) the plaintiff and first defendant communicated and to some extent co-operated concerning the mother’s condition and presence in hospital;
(b) in the course of that exchange, the first defendant referred to the plaintiff as ‘my brother’ and, more than once, asked him to attend the hospital;
(c) however, the tone and content of the first defendant’s messages became increasingly more emotional;
(d) at points, the first defendant’s messages might be thought to have been in exaggerated and even hysterical terms;
(e) nonetheless, throughout the exchange the plaintiff sought calmly to explain the situation until it was plain enough that the first defendant would not be any further calmed or consoled; and
(f) beyond that point, the first defendant commenced upon referring to the hospital staff as ‘criminals’ and also accused them of having planned his mother’s ‘murder’.
238 The messages to which I have referred
reveal the considerable emotional suffering endured by the first defendant at
the time of
his mother’s death. However, they also tend to show that in
the lead up to her death he was perhaps eccentric and prone to
exaggeration and
hyperbole, but that shortly before and certainly after her death the complexion
of his behaviour and accusations
went considerably beyond
that.
239 As I have earlier noted, within the
proceedings, and at trial, the first defendant’s behaviour was, at time,
quite bizarre
and illogical and included the making of repeated and serious
allegations (that have come to be rejected).
240 In
the circumstances, I tend to think that when the mother executed her will and
relevantly contemplated the potential future
appointment of the plaintiff and
first defendant as joint executors she should not be taken to have contemplated
the extremity of
behaviour demonstrated by the first defendant many years later
in the proceeding and at trial.
241 In that regard,
I have already observed or explained that –
(a) the first defendant did not co-operate with the plaintiff in dealing with and cremating the mother’s body;
(b) indeed, the first defendant caused orders of the Court to be sought and obtained in order that urgent and necessary steps might be taken in respect of the mother’s body;
(c) the first defendant has made claims to ownership of the Property, changed the officeholders and membership of Ghosh Enterprises and dealt with his parents’ bank accounts in a manner which led to orders being sought and obtained in order to restrain him;
(d) the first defendant has pursued and seemingly become fixated by scandalous and unsubstantiated allegations against the plaintiff;
(e) the first defendant has also become fixated by his alleged entitlement to own or deal with the Property, Ghosh Enterprises and his parents’ bank accounts as well as the alleged legal irrelevance of the Ghosh Superannuation Fund;
(f) much of the first defendant’s behaviour in the course of the proceedings and especially at trial has, quite frankly, been bizarre; and
(g) I ultimately could not accept him as a witness of truth.
242 In the circumstances, it seems to me
to be inevitable that despite the findings made in these proceedings, the first
defendant
will continue widely to claim to own practically all or at least most
of the significant assets in his mother’s estate while
at the same time
continuing to assert that the plaintiff is a ‘fraud’ and a
‘serial liar’.
243 In my view
–
(a) that position would plainly place him in a significant and intractable conflict of interest if he were to remain an executor of the estate;
(b) there is no realistic prospect that the first defendant will be able to co-operate with the plaintiff in the proper administration of his mother’s estate;
(c) if the first defendant were to serve as executor together with the plaintiff he will continue to behave obstructively with the consequence that the estate would continue not to be called in and administered; and
(d) it is in the interests of all beneficiaries, including the first defendant himself, that he be passed over as executor.
244 It follows that I accept that special or exceptional circumstances are shown and that the first defendant should be passed over as executor of his mother’s estate.
245 As I have noted, in substance, the plaintiff seeks orders that –
(a) the first defendant provide to the plaintiff, as executor, any documents in his possession, custody or control relating to the assets or liabilities of his mother’s estate;
(b) in particular, the first defendant provide to the plaintiff, as executor, any documents relating to the Ghosh Superannuation Fund, including any binding death benefit nomination form and any documents pertaining to the identity of the trustee; and
(c) the plaintiff, as executor of the estate of the mother, be authorised to inspect the books of Ghosh Enterprises.
246 In that regard, the orders sought are
in aid of the most basic obligation of the executor to identify the assets that
form the
estate and get them under his control.
247 In that connection, of course, the executor may
pursue claims in order to get in the assets of the estate, and has duties to
file
an inventory of assets and liabilities and to keep proper accounts and
records.
248 It seems to me to be a necessary
corollary of those duties that the executor must be entitled to examine any
records that might
be relevant to the establishment of the estate. In that
regard, the Victorian service in respect of wills, probate and administration
states –
The personal representative must ascertain what assets belong to the estate as soon as possible after death has occurred. Methods available include examining the deceased’s personal papers and tax returns to find out what the assets are. The personal representative may also need to undertake an index search at the Land Registry so as to determine whether or not the deceased held any real estate.[203]
249 As I have indicated, to this point
the first defendant has largely sought to obstruct the efforts of the plaintiff
to establish
the estate and to obtain the personal papers of the parents, whilst
at the same time drip feeding a sequence of documents of dubious
provenance in
support of contentions that most or all relevant assets are, in fact, his; or
that such assets and associated documents
are irrelevant to the
estate.
250 It will be evident that I do not accept
–
(a) that the Property is the first defendant’s, legally or beneficially;
(b) that the bank accounts were or are the first defendant’s, or properly to be operated and administered by him; or
(c) that the officeholders and membership of Ghosh Enterprises were properly altered.
251 As to Ghosh Enterprises, in
particular, upon the grant of probate the mother’s property is taken to
vest in the plaintiff
as executor from the date of her
death.
252 It follows that the property of the
mother as at 9 June 2022 must be taken to vest in the plaintiff on and from that
date. On
that date, of course, the mother was still registered as an
officeholder and sole shareholder of Ghosh Enterprises. Accordingly,
the shares
in Ghosh Enterprises were part of the mother’s assets at the time of her
death and must now be taken to vest in
the plaintiff as executor. At the very
least, he must have power to unwind the registrations subsequently effected with
ASIC by
the first defendant in order to get in that asset for the
estate.
253 It follows that it may not strictly be
necessary for the plaintiff, as executor, to obtain the orders sought by him
pursuant
to the provisions of the Corporations Act as –
(a) on any view he is entitled to get in the assets of the estate;
(b) at the date of the mother’s death she was the sole registered shareholder in Ghosh Enterprises and those shares must be an asset in her estate;
(c) the plaintiff as executor must be entitled to take action to reverse the changes subsequently registered with ASIC by the first defendant; and
(d) in connection with all of the above, the plaintiff is entitled to the personal papers of the parents in order that he can substantiate the estate of the mother and take the steps to which I have referred.
254 It follows, it seems to me, that the
order to which the plaintiff as executor must be entitled – in substance,
that the
first defendant provide any documents in his possession, custody or
control relating to the assets or liabilities of the mother’s
estate
– should be taken expressly or by implication to extend to any documents
in the first defendant’s possession,
custody or power relating to Ghosh
Enterprises.
255 In any event, in final address,
counsel for the plaintiff confirmed that application is made pursuant to s 247A
of the Corporations Act for a specific order authorising him, as
executor, to inspect the ‘books’ of Ghosh Enterprises and, it seems,
for leave
to commence proceedings pursuant to sections 236 and 237 of the
Corporations Act. In that regard, counsel foreshadowed the potential
need for the company to pursue proceedings to rectify the ASIC register and,
perhaps, to wind up the
company.[204]
256 For
his part, the first defendant referred to a paragraph in the decision of
Charlesworth J in Leadenhall Australia Pty Ltd v Cape Lambert Resources
Ltd
(‘Leadenhall’)[205]
and submitted that an application under s 247A(1)(a) of the Corporations
Act could relevantly be made only by ‘current members’. He
submitted, of course, that the mother could not be a ‘current
member’ because of the copy transfer or transfers which he relied
upon.[206] In that regard, of
course, I do not consider those documents to be either reliable or
efficacious.
257 In any event, when
Leadenhall is read in full, it is plain enough that her Honour was not
purporting to restrict the potential application of s 247A to only
‘current members’. In that regard, her Honour noted that s 247A(3)
extended the provision to ‘former
members’,[207] albeit that
in that instance the applicant did not seek relief pursuant to that
sub-section.
258 I have earlier set out the relevant
provisions of the Corporations Act. In that connection, it is plain that
s 247A(3) allows a person to apply under s 247(1)(a) if that person is eligible
to bring proceedings under s 237. It follows that such proceedings need not
actually be brought or presently on foot at the time of the
application.
259 Section 237 concerns the bringing
of proceedings by the company. The particular kinds of proceedings are not
there specifically identified,
but I would think that the terms of the section
must be sufficiently broad so as to include proceedings to rectify the ASIC
register
as well as to wind up the company.
260 I
should also indicate that the present circumstances seem to me to satisfy the
relevant parts of s 237(2), in that –
(a) it is plain that the first defendant will not take any steps on behalf of the company either to reverse the registrations to which I have already referred or to wind the company up;
(b) in taking either step on behalf of the company, I would be satisfied that the plaintiff, as executor, would be acting in good faith; and
(c) accordingly, it would be in the best interests of the company that the plaintiff, as executor, be granted such leave – assuming that he falls within the categories of persons entitled to apply for that leave.
261 In respect of the latter point, s 237(1) links back to s 236(1)(a), which relevantly identifies the entitled persons as follows –
(a) a member of the company;
(b) a former member of the company;
(c) a person entitled to be registered as a member of the company; and
(d) an officer of the company.
262 At the very least, the estate of the
mother seems to me to be a present officer of the company and a former member
entitled to
be re-registered as a member of the
company.
263 It follows, in my view, that an order
should be made permitting the plaintiff, as executor of the mother’s
estate, to inspect
the books of Ghosh
Enterprises.
264 That leaves the final issue, namely
whether the first defendant should be directed to provide to the plaintiff, as
executor, any
documents in his possession, custody or power relating to the
Ghosh Superannuation Fund, particularly any binding death nomination
and any
documents pertaining to the identity of the trustee of the
fund.
265 As earlier noted, the father referred to a
‘self-managed superannuation fund’ in conference with Sharrock
Pitman in
January 2011, albeit that he is recorded as having said that it would
be ‘closed soon upon a tax refund’ and that there
was no need for
Sharrock Pitman to review
it.[208]
266 In
any event, following his mother’s death the plaintiff deposed, and I
accept, that he was aware that his mother had a
self-managed superannuation fund
called the Ghosh Superannuation Fund, albeit that he had essentially no further
information about
it. That said, he deposed to his belief that either he or the
estate might have an entitlement to a death benefit payable from
it.[209]
267 The
plaintiff’s solicitors subsequently made enquiries concerning the
mother’s assets and liabilities and, in particular,
sought information
concerning the Ghosh Superannuation Fund. In that regard –
(a) on 29 June 2022, the plaintiff’s solicitors wrote to the first defendant seeking a copy of the deed of trust, the most recent financial statements and a copy of any binding death benefit nomination, but seem to have received no direct or appropriate response;[210]
(b) a business name enquiry on 14 July 2022 suggested that ‘The trustee for Ghosh Superannuation Fund’ was an active entity without giving any particulars that would identify that trustee;[211] and
(c) on 10 August 2022, Commsec advised that a trading account named ‘4392360 MR BISWANATH GHOSH + MRS AROTI GHOSH <GHOSH SUPER FUND A/C>’ had no holdings and had been closed and that online access for that account had been suspended.[212]
268 In substance, there is reason to
believe that there may still be a Ghosh Superannuation Fund, although such
investigations as
have been conducted by the plaintiff’s solicitors since
the mother’s passing have not produced much in the way of additional
or
specific information.
269 As I have earlier noted,
in cross-examination the first defendant was asked about the Ghosh
Superannuation Fund, but his answers
comprised a masterclass in evasiveness and
stonewalling in the course of which he quite untenably purported to
‘recuse’
himself from
answering.[213]
270 I note that in the course of that lengthy
exercise the first defendant did not deny that there was a Ghosh Superannuation
Fund.
However, he did deny that there were documents relating to the
superannuation fund at the Property and that he knew the name of
the
trustee.[214] That sequence of
answers is among the category of answers given by the first defendant that I
consider to be likely to have contained
untruths.
271 In any event, the basis for the first
defendant’s purported ‘recusals’ of himself (despite being
directed to
answer the questions asked) was principally said to be a decision of
Tracey J in Stock (as Executor of the Will of Mandie, Deceased) v NM
Superannuation Pty Ltd[215]
(‘Stock’) and, more particularly, a paragraph from the
underlying reasons of the Superannuation Complaints Tribunal included within a
longer
passage extracted in his Honour’s reasons. That paragraph reads as
follows –
[44] First, superannuation is not an asset of the estate and a trustee is not bound to follow the directions of a will. Even if superannuation is specifically mentioned in a will, it does not make it an asset subject to the terms of the will.[216]
272 Although parts of that passage were
evidently thought by the first defendant to reflect broad and established
propositions of
law, the passage relates to a particular estate, and trustee,
and arose from circumstances in which, in that case, the trustee was
identified
and known and, indeed, and was a respondent to the appeal.
273 Further, it is evident that the particular
trust deed was before the Superannuation Complaints Tribunal and therefore
before his
Honour.
274 In addition, the appeal to
his Honour concerned the decision of the trustee to pay benefits to certain
children of a deceased
member of the superannuation fund which, by reference to
the documents to which I have referred, could evidently be and were observed
not
to form part of the estate there under
consideration.
275 In that connection, the appeal
to his Honour concerned, in part, a complaint that the Tribunal had erred in law
in holding that
a trustee was ‘in general’ not to pay a death
benefit to the legal personal representative of the deceased member unless,
among other things, there was a binding death nomination in favour of the legal
personal representative.
276 It follows that the
reasoning in question contemplated the possibility that such a benefit could be
paid to the estate if there
was a binding death nomination to that effect. One
among a number of points was that in that case there was no such
nomination.
277 In short, the passage now relied
upon by the first defendant says nothing of substance about the unknown details
pertaining to
the presently unascertained trust deed, trustee of the Ghosh
Superannuation Fund and any binding death nomination, and it is for
that reason
that I directed the first defendant to answer counsel’s questions, albeit
that he continued to refuse to do so.
278 In that
connection, of course, whether or not any aspect of the Ghosh Superannuation
Fund or any binding death benefit nomination
could give rise to an asset in the
deceased’s estate must depend upon the content of the relevant documents;
particularly,
I suspect, the trust deed and/or any binding death
nomination.
279 In that regard, I note that prior
to the decision of Tracey J in Stock, cognate issues were considered by
Atkinson J in McIntosh v
McIntosh[217] in which the
applicant, who was the administrator of the estate of her son who had died
intestate, applied to the Supreme Court of
Queensland for judicial advice in
respect of her son’s superannuation funds which she had received
personally. In that instance,
there was no binding nomination, but the
superannuation funds had been applied for and paid to her personally by the
trustees, albeit
that she was administrator of the estate.
280 The respondent was the applicant’s
former husband and he contended that his ex-wife had breached her fiduciary duty
to the
estate and sought an account of profits to the
estate.
281 In that instance, quite appropriately,
all of the relevant documents and correspondence seem to have been produced to
the Court
for consideration and her Honour determined that there had been a
clear conflict of duty and interest contrary to the applicant’s
duties as
administrator of her deceased son’s estate.
282 In that regard, her Honour noted that the son
had not completed a binding nomination and also referred to certain
superannuation
regulations. In that connection, her Honour stated –
An administrator of an intestate estate has a duty to apply for payment of superannuation funds to the estate. The administrator has no proprietary right to the funds, but has standing to compel the trustees of the fund to exercise their discretion to pay out the funds.[218]
283 It follows from the above, in my
view, that the documents relating to the Ghosh Superannuation Fund which, to
this point, have
been essentially shielded from any proper examination, form
part of the parents papers that should be produced to the plaintiff,
as executor
of the estate of the deceased, in order that they might be considered and it
determined whether they give rise to or
contain an asset for the benefit of the
estate of the deceased.
284 Consequently, I will
make an order, in substance, that the first defendant produce to the plaintiff,
as executor, any documents
in his possession, custody or power relating to the
Ghosh Superannuation Fund, including any trust deed relating to that fund, any
binding death nomination and any document that might identify the trustee of the
Ghosh Superannuation Fund.
H. Conclusions
285 It will be evident that the plaintiff has succeeded in practically all of the relief which he has sought. In particular, I would propose that orders be made to the effect that –
(a) a grant of probate be made of the will of the deceased dated 18 October 2011 evidenced by the copy of that will of the same date;
(b) the first defendant is passed over as an executor of the estate of the deceased;
(c) the first defendant provide to the plaintiff, in his capacity as executor of the estate of the deceased, any documents in his possession, custody or control relating to the assets or liabilities of the deceased, including –
(i) any documents relating to the Ghosh Superannuation Fund, including the trust deed, any binding death benefit nomination and any documents that might identify the trustee of the Ghosh Superannuation Fund; and
(ii) any documents relating to Ghosh Enterprises and its assets.
(d) the plaintiff, as executor of the estate of the deceased, be authorised to inspect the books of Ghosh Enterprises.
286 I will hear the parties in connection with costs or any other residual issues that might arise.
[1] Transcript (‘T’) 603-605.
[2] Exhibit D15, CB614 and Exhibit D16, CB619-620.
[3] Exhibit P5, CB1658.
[4] Exhibit P1, CB14-16.
[5] T436-438.
[6] Re Ghosh [2022] VSC 410, [1] (‘Re Ghosh’) and Ghosh v Ghosh [2023] VSCA 77, [2] (‘Ghosh v Ghosh’).
[7] Exhibit P3, [10] and Exhibit P2, [8].
[8] See Exhibit P1, CB20-23 and Exhibit D15, CB615-618.
[9] Exhibit P3, [10].
[10] T117.
[11] T58.
[12] T64. See also T151.
[13] T115.
[14] T118.
[15] T121.
[16] Ibid.
[17] Ibid.
[18] T121-122.
[19] T123-124.
[20] T225. Cf Exhibit P5, CB1658.
[21] T113.
[22] T428-429.
[23] T312.
[24] T311 and T314.
[25] T492.
[26] T492-493 and T502.
[27] T490. Later, in final address, the first defendant confirmed that the company had not conducted any business since the passing of his father in 2011: T606-607.
[28] T490. See also T501-502.
[29] T445.
[30] Exhibit P1, CB58-61 and CB70-74.
[31] See, eg, T110.
[32] Exhibit D3, [6].
[33] Exhibit D3, CB125.
[34] Exhibit D5, [3] and CB180-183.
[35] T494.
[36] Exhibit D6, CB361-365.
[37] Exhibit D6, [1].
[38] T407-415. See also T421.
[39] T495-497.
[40] T606-607.
[41] T490-491.
[42] T421.
[43] To the above, I should perhaps add that the first defendant gave evidence that when the proceeding had been before Gorton J in the Practice Court on 19 July 2022, his Honour had asked that he ‘bring the relevant documents, including the transfer documents’: T448. In that context, as I have indicated, the first defendant initially exhibited only the cover page of one such form, later exhibited what he then inaccurately described as ‘all pages’ of that form and on the same day separately exhibited a different form altogether. At no time does the first defendant seem to have produced to Gorton J the third form which he referred to at trial but ultimately determined not to produce. Nor does he seem to have produced that document in connection with his application for leave to appeal from the orders made by Gorton J, which was heard and determined by J Forrest AJA: see Ghosh v Ghosh (n 6).
[44] See, for eg, T444-445.
[45] Exhibit P3, CB486.
[46] Exhibit P3, CB481-484.
[47] Exhibit D3, CB124.
[48] T110. That seems to have been the same ‘portion of [a] document’ which the first defendant relied upon earlier before J Forrest AJA (Ghosh v Ghosh (n 6) [81]-[85]).
[49] T112. See also T308-309.
[50] T125.
[51] Exhibit D27. It is not evident that the first defendant produced that document earlier in the proceedings before either Gorton J or J Forrest AJA. See also T486.
[52] T409.
[53] T415.
[54] T112.
[55] T408 and T413.
[56] T413.
[57] T412-413.
[58] Ibid. See also T416-421. I acknowledge that counsel for the plaintiff later called for production of the original second transfer, but later withdrew that call: T552. However, from his initial statement it was clear enough that the first defendant understood that an issue of authenticity could arise. Nonetheless, he did not produce any original documents or call any of the purported witnesses.
[59] T473. See also T487-488.
[60] T479-480. See also T449.
[61] T112.
[62] T408.
[63] T479-480. See also T449.
[64] T482-484.
[65] T486-487.
[66] T413.
[67] T538-539.
[68] Exhibit D28.
[69] T562. The application was refused for reasons delivered ex tempore.
[70] T613.
[71] T601 and T610-616.
[72] Re Ghosh (n 6).
[73] [1836] EngR 1157; (1836) 1 Moo PC 299; 12 ER 828, 829 (‘Welch’).
[74] Ghosh v Ghosh (n 6).
[75] Ghosh v Ghosh [2023] HCASL 171.
[76] Re the Will and Estate of Aroti Ghosh [2024] VSC 75.
[77] Ibid [46].
[78] I note, in passing, that the first defendant earlier objected to a subpoena to Sharrock Pitman to produce documents. The objection was dismissed by Barrett AsJ on 13 October 2022. The documents produced by Sharrock Pitman were exhibited to an affidavit of the first defendant affirmed 7 November 2022 (Exhibit D18). Various parts of those documents were relied upon by the first defendant during the trial.
[79] It seemed ultimately to be accepted by the plaintiff and first defendant that if neither the mother’s copy will nor the mother’s draft will were granted probate then the intestacy rules pursuant to Part IA of the Administration and Probate Act 1958 (Vic) (‘A&P Act’) should apply. Cf T608-609. See also T586 and T591-592.
[80] For his part, the first defendant submitted that the plaintiff was ‘unfit’ and that the first defendant was ‘extremely capable of handling the administration of the estate’ because he is ‘much more aware’ of the deceased’s assets, including those said to be in Kolkata, India: T667-668.
[81] Exhibits P1 to P7 (inclusive).
[82] Exhibits P8 to P11 (inclusive).
[83] Exhibits D1 to D30 (inclusive).
[84] See, eg, the plaintiff’s evidence concerning his recollections about Sharrock Pitman and whether the first defendant had represented the parents in their dispute with Sharrock Pitman: T236-239 and T243-250, as well as his evidence concerning his father’s birth and death in India: T259-268.
[85] See T337, T355 and T368.
[86] Early in the trial the first defendant had sought to contend that LSC Hansen had been ‘rubber-stamping documents for that Hau Pham migration agency’: T36.
[87] See, eg, T171.
[88] T32-36. Those allegations were scandalous, but emerged later as strangely ironic when, as I have noted, the first defendant ‘refrained’ from producing two seemingly relevant documents to the Court.
[89] Exhibits D3 to D26 (inclusive).
[90] Exhibits D1, D2, D27, D28, D29 and D30.
[91] Re Ghosh (n 6).
[92] T127-128. The same submission was advanced in respect of the reasons of J Forrest AJA in Ghosh v Ghosh (n 6) [84].
[93] T205-206.
[94] T212-213.
[95] T196.
[96] Cf T205.
[97] Exhibit P8.
[98] T59-60 and T374.
[99] T421. See also T455.
[100] T421-422.
[101] T422.
[102] Ibid.
[103] T423.
[104] T424.
[105] T425.
[106] Exhibit P3, CB503-504.
[107] T471.
[108] Ibid.
[109] T473-474.
[110] T474.
[111] The ANZ Access Advantage account is in the names of both parents, but the two Westpac accounts are in the name of the mother: Exhibit P1, CB45-55.
[112] T507.
[113] T508.
[114] T510.
[115] T512-513.
[116] T516.
[117] T518-519.
[118] T521-522.
[119] T525.
[120] T527-530.
[121] Ulman v Mom [2022] VSC 186, [8] (‘Ulman’). See also Re Bourikas [2024] VSC 96, [15].
[122] Welch (n 73).
[123] Demediuk v Demediuk [2019] VSCA 79, [37] (‘Demediuk’).
[124] Demediuk (n 123) [38].
[125] Ibid [39].
[126] Ibid [58].
[128] Ulman (n 121) [14].
[129] Ibid [15].
[130] Re Moschoudis [2016] VSC 139, [62]. See also, eg, In the Estate of Hall (dec’d) [2011] SASC 117; (2011) 120 SASR 1.
[131] Cf Estate of Peter Brock [2007] VSC 415 (‘Brock’), Fast v Rockman [2013] VSC 18, Re Kelsall [2016] VSC 724 and Re Prien [2019] VSC 47.
[132] Brock (n 131) [29]-[30].
[133] Cf A&P Act (n 79) pt 1A div 6.
[134] Re Arklie (No. 2) [2019] VSC 350, [9]-[15], quoting Woodley v Woodley (No 2) [2017] WASC 94, [48], citing Jurkiewicz v Jurkiewicz [2013] ACTSC 89 [13], [26]; In the Estate of Stuart (dec’d) [2009] SASC 399; (2009) 106 SASR 39 [25]; Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152, [70]-[72]. Cf Monty Financial Services Ltd & Anor v Delmo [1996] VicRp 7; [1996] 1 VR 65, 75 and Fysh v Coote [2000] VSCA 150, [20]-[21].
[135] Cf A&P Act (n 79) s 34(1)(c) and Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584.
[136] In particular, the first defendant sought to rely upon Stock (as executor of the will of Mandie, deceased) v NM Superannuation Pty Ltd [2015] FCA 612 (‘Stock’).
[137] T671-673. Cf Leadenhall Australia Pty Ltd v Cape Lambert Resources Ltd [2018] FCA 558; (2018) 125 ACSR 484 (‘Leadenhall’).
[138] T599-601.
[139] T609. See also T616-617.
[140] T617-618.
[141] T619-620.
[142] T461.
[143] T462.
[144] T463-464.
[145] T464.
[146] T660-662.
[147] Exhibit P4, CB730-811 and Exhibit D18, CB 642-722.
[148] Exhibit D18, CB715.
[149] Exhibit D18, CB715-716.
[150] Exhibit D18, CB716.
[151] Exhibit D18, CB650-651.
[152] Exhibit D18, CB716.
[153] Ibid.
[154] Ibid.
[155] Exhibit D18, CB709.
[156] Exhibit D18, CB717.
[157] Exhibit D18, CB678-707.
[158] Exhibit D18, CB678-679.
[159] Exhibit D18, CB690-694.
[160] Exhibit D18, CB695-700.
[161] Exhibit D18, CB716-717.
[162] Exhibit D18, CB717.
[163] Exhibit D18, CB708-709.
[164] Exhibit D18, CB717.
[165] Ibid.
[166] Exhibit D18, CB711-714.
[167] Exhibit D18, CB717-718.
[168] Exhibit D18, CB718.
[169] Exhibit D18, CB719-720
[170] Exhibit D18, CB721-722.
[171] Exhibit D18, CB708.
[172] Exhibit D18, CB715.
[173] Exhibit D15, CB615-618 and Exhibit P1, CB20-23.
[174] Exhibit D18, CB690-693 and Exhibit D15, CB615-618.
[175] The father’s draft will has 18 clauses; his copy will has 17 clauses.
[176] I note that the more personal ‘my death’ is nonetheless retained in clause 6 of the father’s copy will.
[177] As I have earlier indicated, I doubt that this amendment was necessary. However, that again tends to underline that the amending was not likely effected on legal advice or by a solicitor.
[178] Exhibit D18, CB698 [Emphasis added].
[179] Exhibit P1, CB23 [Emphasis added].
[180] T117 and T599.
[181] T599 and T652.
[182] T615-616 and T661.
[183] T160.
[184] T161 and T163-164. See also T168 and T187-188.
[185] In that regard, I do not accept that it is necessary in every such case that both subscribing witnesses to a will be called; particularly when, as in the present case, the evidence of one of those subscribing witnesses is called and is patently satisfactory and reliable. One can anticipate many circumstances in which one or even both subscribing witnesses might be unable to be called to give evidence in respect of a will witnessed many years earlier.
[186] See Exhibit P7 and T199-222.
[187] T181-182.
[188] Exhibit P1, CB23 and Exhibit D15, CB618.
[189] I note that earlier in the proceeding, before Gorton J, the first defendant seems to have flirted with a suggestion that his mother was cognitively impaired at the time at which the copy will was made (Re Ghosh (n 6) [24], but that suggestion was not repeated and pursued at trial.
[190] T271.
[191] T660-661.
[192] Exhibit P3, CB474. See also Exhibit P2, CB115-116 and Exhibit P5, CB1654-1655.
[193] See especially T232-240. Similarly, the plaintiff was cross-examined about other recollections concerning certain events prior to his examination of the Sharrock Pitman documents produced in answer to a subpoena (to which the first defendant objected): see T243-250.
[194] T252.
[195] Exhibit P2, CB116 and CB120.
[196] T651-655.
[197] T616.
[198] T631.
[199] Cf Wills Act 1997 (Vic) s 7(1). In that connection, I accept the submission that it is not necessary for the will to have been signed at the foot of every page: T626.
[200] See Exhibit P2, CB115 and Exhibit P3, CB474.
[201] Exhibit P3, CB479.
[202] Exhibit P3, CB498-504.
[203] Boaden et al, Wills Probate and Administration Service Victoria, (LexisNexis Butterworths, 1997) [47,035]. [Emphasis added]. See also Dal Pont, Law of Succession, (LexisNexis Butterworths, 2nd edition, 2017) [13.1].
[204] T639-642.
[205] Leadenhall (n 137) [44].
[206] T671-672.
[207] Leadenhall (n 137) [41].
[208] Exhibit D18, CB715.
[209] Exhibit P1, CB16.
[210] Exhibit P1, CB27-29.
[211] Exhibit P1, CB56.
[212] Exhibit P3, CB496.
[213] T521-530.
[214] T525 and T528-530.
[215] Stock (n 136).
[216] Stock (n 135) [16].
[218] Ibid [71].
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