Govindan v Charan - [2020] VSC 137

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 08035

LEELA WATI GOVINDAN

Plaintiff

SURESH CHARAN

- and -

ANURADHA CHARAN

Defendants

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JUDICIAL REGISTRAR:	Keith JR
WHERE HELD:	Melbourne
DATE OF HEARING:	On the paper
DATE OF JUDGMENT:	24 March 2020
CASE MAY BE CITED AS:	Govindan v Charan
MEDIUM NEUTRAL CITATION:	[2020] VSC 137

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WILLS AND ESTATES – Application for revocation of probate – Whether caveator lacks standing – Whether caveator can establish prima facie case for caveat – Whether case for investigation or something to ‘go on’ – Whether testator’s previous memory loss established a lack testamentary capacity at the time of making the will – Whether testator was subject to undue influence at the time of making the will – Limited interest in estate does not provide standing – Prima facie case not established – Gardiner v Hughes (No 2) [2019] VSCA 198 – Section 63, Civil Procedure Act 2010 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Gillies	R B Legal Pty Ltd
For the Defendant	Self-represented

HIS HONOUR:

plaintiff is the applicant for a grant of probate of a will dated 11 May 2006 made by the deceased. The plaintiff has applied by summons dated 17 July 2019 for orders that a caveat be dismissed and consequential orders. On 26 February 2020 the summons was referred to me by order of McMillan J for determination. The Court has intimated to the parties that the matter will be determined on the papers. Written submissions have been received.

Background

The deceased died on 24 January 2019 aged 93.

The caveators lodged a caveat on 18 February 2019. The caveator, Anuradha Charan, is a niece of the deceased and is a named beneficiary in the will dated 11 May 2006, entitling her to receive “jewellery”. The second named caveator is married to Anuradha and has no personal interest in the estate.

The plaintiff lodged her application for a grant of probate on 28 May 2019. The estate comprises a flat at Richmond valued at $320,000 and a Unit at Dandenong valued at $320,000 together with an accommodation bond of $225,795.12 and funds controlled by State Trustees Limited of $178,376.95 making a total in excess of $1m [I observe the inventory lodged in support of the application for probate appears to incorrectly show the value of the estate at $818,376.95].

The caveat is supported by grounds filed on 24 June 2019 that the testatrix lacked testamentary capacity to make a will in May 2006, and that the plaintiff acted in some manner to influence the testatrix or so as to overcome the free exercise of testamentary capacity.

In support of the application that the caveat be dismissed the plaintiff relies on two grounds. First it is submitted the caveators lack standing and second, the grounds in support of the caveat fail to disclose a prima facie case. On those grounds it is…

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 Govindan v Charan

Details

AGLC: Govindan v Charan [2020] VSC 137
Case: [2020] VSC 137
Decision Date: 24 March 2020

CaseChat Overview and Summary

The case of Govindan v Charan involved a dispute over the validity of a will and the probate thereof. The deceased, Charan, left a will which benefitted various family members, including the applicant, Govindan, who held a limited interest in the estate. Another family member, the respondent, sought to have the probate of the will revoked on the basis that it was not validly executed. The matter was heard in the Supreme Court of Victoria. The central issues before the court were whether the respondent had standing to challenge the validity of the will, whether the respondent could establish a prima facie case for a caveat, and whether there was evidence to suggest that the testator lacked testamentary capacity or was subject to undue influence at the time the will was made.

The court held that the respondent did not have standing to challenge the will as their interest in the estate was limited. Further, the respondent could not establish a prima facie case for a caveat, as they could not demonstrate that the case warranted investigation. The court noted that the respondent had not shown that there was something to ‘go on’ in their allegations. The court also dismissed the respondent’s claims that the testator had suffered from memory loss prior to making the will, finding that this did not establish a lack of testamentary capacity at the relevant time. Similarly, the court found that there was no evidence of undue influence. The court referred to the decision in Gardiner v Hughes (No 2) [2019] VSCA 198 and section 63 of the Civil Procedure Act 2010 (Vic) in reaching its conclusion.

The court dismissed the respondent’s application for revocation of the probate, finding that the respondent had not established a case warranting investigation. The court found that the respondent did not have standing to challenge the will and could not establish a prima facie case for a caveat. The court also found that there was no evidence of testamentary incapacity or undue influence. The orders of the court were that the respondent’s application for revocation of the probate be dismissed and that the respondent pay the applicant’s costs of the proceeding.

Orders