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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ghosh v Ghosh

Details

AGLC: Ghosh v Ghosh [2024] VSC 259
Case: [2024] VSC 259
Decision Date: 23 May 2024

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Ghosh v Ghosh involved a dispute between brothers, the plaintiff and the first defendant, following the passing of their parents. The father died in February 2012, and the mother in June 2022. The first defendant continued to reside in the family home in Glen Waverley. The primary issue was the probate of a copy of the mother's will dated October 2011. The plaintiff sought to have this copy admitted to probate, while the first defendant argued for the admission of an earlier draft will. The court also had to determine who should be appointed as executor of the will and whether the first defendant should be compelled to produce documents related to the estate and related entities, Ghosh Enterprises Pty Ltd and the Ghosh Superannuation Fund.

The court considered the principles surrounding the probate of lost or copy wills, particularly the presumption of revocation. It was established that the requirements for admitting a lost or copy will had been met, and the presumption of revocation was rebutted. Consequently, the copy will was admitted to probate. The court noted that even if the copy will had not been admitted, the rules of intestacy would have resulted in an outcome similar to that of the admitted will. The question of whether the plaintiff or the first defendant should be appointed as executor was addressed, with the court concluding that special or exceptional circumstances justified passing over the first defendant. The court also ruled that the plaintiff, as the executor, should be allowed to inspect the books of Ghosh Enterprises Pty Ltd, and the first defendant should produce relevant documents.

The court delivered judgment in favour of the plaintiff, admitting the copy will to probate and appointing the plaintiff as the executor. It ordered the first defendant to produce documents relating to the estate, Ghosh Enterprises Pty Ltd, and the Ghosh Superannuation Fund, and granted the plaintiff the right to inspect the books of Ghosh Enterprises Pty Ltd. This decision was based on the statutory provisions of the Wills Act 1997 (Vic) and the Corporations Act 2001 (Cth), as well as relevant case law, including Demediuk v Demediuk and Ulman v Mom. The court's ruling provided clarity on the administration of the estate and the rights and obligations of the parties involved.

The final orders of the court included the admission of the copy will to probate, the appointment of the plaintiff as executor, and the requirement for the first defendant to produce specified documents. The plaintiff was also granted the right to inspect the books of Ghosh Enterprises Pty Ltd. These orders aimed to ensure the proper administration of the estate and the resolution of the dispute between the parties.

Orders