Ghosh v Ghosh

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 02700

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:

ANABAN GHOSH	Plaintiff
-and-
NEELANJAN GHOSH	First Defendant
-and-
GHOSH ENTERPRISES PTY LTD (ACN 070 687 679)	Second Defendant
-and-
GREENHAVEN FUNERALS PTY LTD (ACN 159 798 964)	Third Defendant

S PRB 2022 21557

IN THE MATTER of the deceased estate of Aroti Ghosh

ANABAN GHOSH	Plaintiff
-and-
NEELANJAN GHOSH	Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20, 21, 22 and 26 March 2024
DATE OF JUDGMENT:	23 May 2024
CASE MAY BE CITED AS:	Ghosh v Ghosh & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 259

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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:	Counsel	Solicitors
For the Plaintiff	RG Morison	Shiff & Company Lawyers
For the First Defendant	In person
For the Second Defendant
For the Third Defendant

HIS HONOUR:

A. Introduction

Even among the cases in the Trust, Equity and Probate List of the Court, the circumstances of the present case are lamentable.

The principal protagonists are brothers. Their parents, Biswanath and Aroti Ghosh, passed away on 14 February 2012 and 9 June 2022 respectively.

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.

In that regard, among a significant number of other things, the first defendant disputed or ‘queried’ –

(a) the plaintiff’s parentage;[1]
[1]Transcript (‘T’) 603-605.

(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]

[2]Exhibit D15, CB614 and Exhibit D16, CB619-620.

[3]Exhibit P5, CB1658.

[4]Exhibit P1, CB14-16.

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]
[5]T436-438.
[6]Re Ghosh [2022] VSC 410, [1] (‘Re Ghosh’) and Ghosh v Ghosh [2023] VSCA 77, [2] (‘Ghosh v Ghosh’).

Much of that to which I have referred presented as bizarre and lacking in much in the way of proportion or reality.

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’).

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’).
[7]Exhibit P3, [10] and Exhibit P2, [8].
[8]See Exhibit P1, CB20-23 and Exhibit D15, CB615-618.
[9]Exhibit P3, [10].

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]
[10]T117.
[11]T58.

(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’;
[12]T64. See also T151.

(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]

[13]T115.

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]
[14]T118.

(b) the plaintiff targeted ‘single, vulnerable mothers with assets’;[15]
[15]T121.

(c) the plaintiff is connected with ‘animal poaching syndicates’;[16]
[16]Ibid.

(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]

[17]Ibid.

[18]T121-122.

[19]T123-124.

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.

To the extent that such accusations were put to the plaintiff in cross-examination, he essentially denied them.

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.

In that context, the plaintiff is 50 years of age and has practised for some years as a veterinarian.

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]
[20]T225. Cf Exhibit P5, CB1658.

In any event, in opening the first defendant described himself as a mechanical engineer with an additional qualification in computer engineering.[21]
[21]T113.

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.
[22]T428-429.

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]
[23]T312.
[24]T311 and T314.
[25]T492.

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.
[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.

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]

[29]T445.

[30]Exhibit P1, CB58-61 and CB70-74.

At trial, the first defendant’s position was that he owned Ghosh Enterprises and that he had always been intended to own it.[31]
[31]See, eg, T110.

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]
[32]Exhibit D3, [6].
[33]Exhibit D3, CB125.

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]
[34]Exhibit D5, [3] and CB180-183.
[35]T494.

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.
[36]Exhibit D6, CB361-365.
[37]Exhibit D6, [1].

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]
[38]T407-415. See also T421.

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]
[39]T495-497.

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]
[40]T606-607.

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]
[41]T490-491.

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]
[42]T421.

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]
[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).

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.

Since about 1990, the first defendant has resided at the Property. Throughout the trial he was apt to describe it as ‘my property’.[44]
[44]See, for eg, T444-445.

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]
[45]Exhibit P3, CB486.

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]
[46]Exhibit P3, CB481-484.

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]
[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]).

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]

[49]T112. See also T308-309.

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]

[50]T125.

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.

[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.

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]
[52]T409.
[53]T415.

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]
[54]T112.
[55]T408 and T413.
[56]T413.

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]

[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.

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;
[59]T473. See also T487-488.

(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;
[60]T479-480. See also T449.

(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;
[61]T112.
[62]T408.
[63]T479-480. See also T449.

(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;
[64]T482-484.

(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]

[65]T486-487.

[66]T413.

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.
[67]T538-539.

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.
[68]Exhibit D28.

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]

[69]T562. The application was refused for reasons delivered ex tempore.

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]
[70]T613.

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).

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).

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.

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.
[71]T601 and T610-616.

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.

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).

In those circumstances –

(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

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’.

Relevantly, the originating motion sought the following relief –

1. …
2. Pursuant to r 54.02 of the Rules, the plaintiff be entitled to deal with the body of Aroti Ghosh (the deceased) and determine the appropriate means of disposal without consultation of his co-executor, the defendant.
3. Pursuant to the Court’s inherent equitable jurisdiction, an order passing over the defendant as executor of the estate of the deceased.
4. Alternatively to paragraph 3 above, an order that the plaintiff solely be entitled to make an application for a grant of letters of administration of the deceased’s estate.
5. An order directing the defendant to provide to the plaintiff any documents relating to the assets or liabilities of the deceased’s estate in his possession, custody or control.
6. An order directing the defendant to provide to the plaintiff any documents relating to the GHOSH SUPERANNUATION FUND, including any binding death benefit nomination form and the documents pertaining to the identity of the trustee.
7. Pursuant to s 236(1)(a), 237 and 247A of the Corporations Act 2001, the plaintiff be authorised to inspect the books of GHOSH ENTERPRISES PTY LTD ACN 070 687 679.
8. An order restraining the defendant from dealing with the deceased’s assets, including any bank accounts held in the deceased’s name.
9. Pursuant to s 1324 of the Corporations Act 2001, until further order, the defendant whether by himself, his servants, agents or otherwise be restrained from taking any action in respect of GHOSH ENTERPRISES PTY LTD ACN 070 687 679, including:
9.1 Amending the company register; or
9.2 Dealing with the company’s assets.
10. 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. ... .

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.

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.

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.
[72]Re Ghosh (n 6).

The first defendant applied to the Court of Appeal for leave to appeal from the orders of Gorton J and also sought a stay.

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.

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.

On 25 October 2022, the plaintiff commenced proceeding S PRB 2022 21557. At trial, that was referred to as the ‘probate proceeding’.

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.

On 7 November 2022, the plaintiff filed an amended originating motion seeking probate of the mother’s copy will.

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]

[73](1836) 1 Moo PC 299; 12 ER 828, 829 (‘Welch’).

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.

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.

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]
[74]Ghosh v Ghosh (n 6).

The first defendant subsequently sought special leave to appeal from the High Court of Australia. That application was dismissed on the papers.[75]
[75]Ghosh v Ghosh [2023] HCASL 171.

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.

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.

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.

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]
[76]Re the Will and Estate of Aroti Ghosh [2024] VSC 75.
[77]Ibid [46].

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’.

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]
[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.

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.

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]
[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.

(d) whether the first defendant and/or plaintiff should be passed over as an executor (or administrator) of the deceased’s estate;[80] and
[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.

(e) depending upon aspects of the above –

(iv) 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;

(v) 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

(vi) whether the plaintiff, as executor, should be authorised to inspect the books of Ghosh Enterprises.

C. The witnesses and other evidence

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.

Each swore or affirmed one or more affidavits received as their evidence-in-chief.[81]
[81]Exhibits P1 to P7 (inclusive).

Several further documents were also received into evidence in the course of the plaintiff’s case.[82]
[82]Exhibits P8 to P11 (inclusive).

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]
[83]Exhibits D1 to D30 (inclusive).

Plaintiff

The plaintiff was extensively cross-examined by the first defendant who, as I have noted, appeared in person.

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.

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.

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.

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.
[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.

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.
[85]See T337, T355 and T368.

LSC Hansen

To some extent, the difficulties to which I have referred were also evident in the cross-examination of LSC Hansen.

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]
[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.

The frank responses of LSC Hansen were telling, and, to me, showed up the first defendant’s intended claims as baseless.[87]
[87]See, eg, T171.

More generally, LSC Hansen presented as a plain witness of truth.

Michelle Butler

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.

Early in the trial the first defendant accused the plaintiff’s solicitors, including Ms Butler, of concealing information from him, and the Court.[88]
[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.

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

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]
[89]Exhibits D3 to D26 (inclusive).

He also tendered several further documents in evidence, particularly as the complexion of his various contentions developed.[90]
[90]Exhibits D1, D2, D27, D28, D29 and D30.

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.

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.

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.

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.

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]
[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].

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.

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.

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.

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.

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]
[93]T205-206.
[94]T212-213.
[95]T196.
[96]Cf T205.

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]
[97]Exhibit P8.

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’.

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]
[98]T59-60 and T374.

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.

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.

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]
[99]T421. See also T455.

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]
[100]T421-422.

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]

[101]T422.

The first defendant then said that he ‘may be … the natural-born older son’.[102]
[102]Ibid.

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]
[103]T423.

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]

[104]T424.

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]

[105]T425.

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]
[106]Exhibit P3, CB503-504.

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]
[107]T471.

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]
[108]Ibid.

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]
[109]T473-474.

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]
[110]T474.

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]
[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.

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]
[113]T508.
[114]T510.

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]

[115]T512-513.

[116]T516.

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]

[117]T518-519.

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.

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’.

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]
[118]T521-522.

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]

[119]T525.

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]
[120]T527-530.

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.

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.

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.

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.

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

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.

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]

[121]Ulman v Mom [2022] VSC 186, [8] (‘Ulman’). See also Re Bourikas [2024] VSC 96, [15].

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]

[122]Welch (n 73).

[123]Demediuk v Demediuk [2019] VSCA 79, [37] (‘Demediuk’).

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]

[124]Demediuk (n 123) [38].

[125]Ibid [39].

[126]Ibid [58].

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]

[127][2002] NSWSC 561.

[128]Ulman (n 121) [14].

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]
[129]Ibid [15].

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]
[130]Re Moschoudis [2016] VSC 139, [62]. See also, eg, In the Estate of Hall (dec’d) (2011) 120 SASR 1.

The admission of an informal will to probate

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.

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.

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]
[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.

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’.

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]
[132]Brock (n 131) [29]-[30].

Intestacy

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]
[133]Cf A&P Act (n 79) pt 1A div 6.

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

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]

[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] 1 VR 65, 75 and Fysh v Coote [2000] VSCA 150, [20]-[21].

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]
[135]Cf A&P Act (n 79) s 34(1)(c) and Dimos v Skaftouros (2004) 9 VR 584.

Entitlement to assets and documents

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.

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 … .

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]
[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’).

Corporations Act

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.

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.

For his part, the first defendant submitted that s 247A of the Corporations Act applies only to ‘current members’ of a company.[137]
[137]T671-673. Cf Leadenhall Australia Pty Ltd v Cape Lambert Resources Ltd (2018) 125 ACSR 484 (‘Leadenhall’).

E. The mother’s copy will and related issues

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.

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]

[138]T599-601.

[139]T609. See also T616-617.

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]
[140]T617-618.
[141]T619-620.

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]
[142]T461.

(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]

[143]T462.

[144]T463-464.

[145]T464.

In any event, after making the application to which I have earlier referred, and during final address, the first defendant came to submit that –

In that regard, the plaintiff conceded that he had recalled some of the details later and after his memory had been refreshed.

In that connection –

(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 –

(xii) I do not accept that the plaintiff deliberately concealed information or sought to mislead the Court in his evidence; and

(xiii) 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.

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.

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]
[194]T252.
[195]Exhibit P2, CB116 and CB120.

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.

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.

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]
[196]T651-655.
[197]T616.

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.

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.

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.

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’.

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.

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.

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]
[198]T631.

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]

[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.

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.

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.

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.

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.

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.

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.

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.

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]

[200]See Exhibit P2, CB115 and Exhibit P3, CB474.

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.

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.

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.

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.

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.

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.

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.

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.

It follows from the above that there is no need to consider and apply the intestacy rules.

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

In light of the above, the copy will relevantly appoints the plaintiff and first defendant as joint executors.

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.

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.

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.

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]

[201]Exhibit P3, CB479.

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.

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.

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.

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 –
[202]Exhibit P3, CB498-504.

(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’.

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.

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).

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.

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.

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’.

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.

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.

G.Documents relating to the assets and liabilities of the estate and the books of Ghosh Enterprises

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.

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.

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.

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]

[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, 2^nd edition, 2017) [13.1].

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.

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.

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.

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.

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.

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.

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]
[204]T639-642.

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.
[205]Leadenhall (n 137) [44].
[206]T671-672.

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.
[207]Leadenhall (n 137) [41].

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.

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.

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.

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.

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.

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.

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.

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]
[208]Exhibit D18, CB715.

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]
[209]Exhibit P1, CB16.

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]

[210]Exhibit P1, CB27-29.

[211]Exhibit P1, CB56.

[212]Exhibit P3, CB496.

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.

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]
[213]T521-530.

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.
[214]T525 and T528-530.

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]

[215]Stock (n 136).

[216]Stock (n 135) [16].

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.

Further, it is evident that the particular trust deed was before the Superannuation Complaints Tribunal and therefore before his Honour.

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.

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.

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.

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.

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.

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.
[217][2014] QSC 99.

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.

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.

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]

[218]Ibid [71].

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.

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

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 –

(xiv) 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

(xv) 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.

I will hear the parties in connection with costs or any other residual issues that might arise.

[2024] VSC 259

23 May 2024