In the Estate of Milind Bedake
[2015] ACTSC 267
•2 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Milind Bedake |
Citation: | [2015] ACTSC 267 |
Hearing Date: | 28 August 2015 |
DecisionDate: | 2 September 2015 |
Before: | Mossop AsJ |
Decision: | See [47] |
Category: | Principal Judgment |
Catchwords: | SUCCESSION – Administration of intestate estate – movable assets held in Australian Capital Territory – domicile of deceased Australian Capital Territory at time deceased suffered injuries causing significant cognitive disability – residence of deceased India at time of death – consideration of last domicile and capacity of deceased to form intention in relation to choice of domicile – determination of applicable law as law of Australian Capital Territory |
Legislation Cited: | Administration and Probate Act 1929 (ACT) ss 44, 49, 97 Guardianship and Management of Property Act 1991 (ACT) Domicile Act 1982 (Cth) ss 8, 10 Hindu Succession Act 1956 (India) ss 8, 9, 11 Lunacy Act 1890 (UK) |
Cases Cited: | Kertesz v Kertesz [1954] VLR 195 Lewis v Balshaw (1935) 54 CLR 188 |
Texts Cited: | Dicey and Morris on The Conflict of Laws (12th ed, 1993) Halsbury’s Laws of England (3rd ed, 1960) Private International Law (5th ed, 1957) |
Parties: | Public Trustee for the Australian Capital Territory (Applicant) |
Representation: | Counsel Mr W Andrews (Applicant) |
| Solicitors Snedden Hall & Gallop (Applicant) | |
File Number: | P 319 of 2015 |
Application
The Public Trustee has applied for an order under s 97 of the Administration and Probate Act 1929 (ACT) (the Act) requiring it to distribute the balance of the estate of a deceased person, Mr Milind Bedake (the deceased), to his father, Manohar Baburao Bedake (Mr Bedake). At the time of his death the deceased lived in India. He died intestate. The application raises the question of which law is to be applied in determining who is entitled to the intestate estate of the deceased. It is further complicated by the fact that at the relevant times the deceased was a person under a disability as a result of a brain injury.
Evidence relied upon
The evidence relied upon in support of the application was as follows:
(a)affidavit of Manohar Baburao Bedake, the deceased’s father, affirmed 29 April 2015;
(b)affidavit of Thilaga Money Nadesan, the deceased’s former wife, affirmed 10 June 2015;
(c)affidavit of William Michael Charles Andrews, the solicitor acting for the Public Trustee, sworn 18 June 2015;
(d)affidavit of Chakrapani Misra, a lawyer practising in Mumbai, affirmed 24 August 2015;
(e)exhibit 1, a certificate of divorce relating to the deceased and Ms Nadesan;
(f)exhibit 2, a copy of the Hindu Succession Act 1956 (India).
One of the annexures to the affidavit of Mr Andrews was the advice of a Canberra barrister relating to the operation of the Hindu Succession Act 1956 (India). There was no evidence that the barrister was qualified to give an expert opinion upon Indian law and as a consequence I did not admit the annexure into evidence.
Facts
Mr Bedake is the deceased’s father. The deceased was born on 24 April 1973 and resided with Mr Bedake in India until 1998.
In 1998 the deceased left India and obtained sponsorship to live permanently in Australia. In 2002 he married Thilaga Money Nadesan. The married couple lived in their home in Chifley in the Australia Capital Territory. The deceased worked as a contractor in the IT industry. The deceased remained in regular contact with Mr Bedake.
On 1 October 2002 the deceased suffered severe head injuries following a motor vehicle accident (the accident) on State Circle, Deakin in the Australian Capital Territory. He received extensive medical treatment and survived, however he was left severely disabled. The deceased’s wife remained in contact with Mr Bedake and updated him on the deceased’s rehabilitation. In October 2002 Ms Nadesan made an application to the Guardianship and Management of Property Tribunal for orders that a guardian and/or manager be appointed in relation to her husband.
A letter dated 6 January 2003 from a doctor in the Brain Injury Rehabilitation Unit of the Liverpool Hospital to the ACT Guardianship and Management of Property Tribunal provides the following evidence about the state of the deceased’s injuries:
[The deceased] has suffered a severe traumatic brain injury with long term permanent cognitive and physical impairments. He has no mental capacity to make decisions relating to his accommodation, medical treatment and financial affairs at present.
It is expected that he will make further recovery over the next 12 to 18 months but this would be of a limited nature and [he] would remain significantly impaired both physically and cognitively. We therefore request guardianship and financial management for a period of 12 months in the first instance.
Because he was not eligible for Medicare and had no private health insurance, he was unable to remain in hospital. His wife was expecting their first child and was unable to care for him. That child was stillborn in April 2003.
The deceased returned to reside in Kolhapur, India on 16 September 2003.
Following a period of care in hospital in Kolhapur, the deceased permanently resided with Mr Bedake and his second wife in their home.
Mr Bedake cared for the deceased in a room which was fitted out to cater for the deceased’s needs. Mr Bedake and his second wife, Meeru Bedake, looked after the deceased’s personal hygiene, feeding and exercise and transported him to and from treatment. They received nursing assistance in the morning and afternoon. In 2009 the deceased developed an infection and, despite intervention by doctors and hospitals, died on 24 July 2010.
The evidence does not describe in any detail the extent of any cognitive impairment of the deceased during the period after his return to India. The evidence is, however, consistent with him remaining significantly cognitively impaired. Orders for the management of his financial affairs were made under the Guardianship and Management of Property Act 1991 (ACT) up until the date of the deceased’s death.
The deceased’s only surviving blood relatives are his father, Mr Bedake, and his sister, Mayuru Bedake, who currently resides in Gadhilglaj, India.
The deceased’s mother died on 1 April 1980.
The child whom the deceased had fathered was stillborn, and accordingly, as at the date of his death he had no children.
The deceased and his wife were divorced at the time of his death having been divorced with effect from 15 October 2005.
The deceased left an estate in the Australian Capital Territory comprising money held by the Public Trustee described as follows:
Final salary, cash held in common fund
$20,308.01
Investments comprising $95,991.34 units in balanced investment fund
$111,983.50
Total
$132,291.51
The deceased had no will.
The Public Trustee made an election pursuant to s 87C of the Act to administer the estate of the deceased on 10 June 2015. The effect of filing such an election is that the Public Trustee has the functions that he or she would have if the Court had granted an order to collect and administer the estate under s 88 of the Act.
Issues
In order to determine this application it is necessary to decide what is the law to be applied to the distribution of the property held by the Public Trustee. That in turn depends upon the deceased’s domicile at the date of his death. Once the law to be applied is worked out it is necessary to determine to whom under that law the property should be distributed.
What is the law to be applied?
In the case of intestate succession the law to be applied in relation to movable property is the law of the domicile of the intestate at the time of death. Nygh’s Conflict of Laws in Australia (9th ed, 2014) at [38.4]-[38.7] describes the position of movable and immovable property as follows:
Movables
38.4 It has been trite law, at least since Pipon v Pipon (1744) Amb 25; 27 ER 14, that the succession to movable property on intestacy is determined by the law of the domicile of the intestate at the time of death: Bremer v Freeman (1857) 10 Moo PC 306 at 358; 14 ER 508 at 527. This means that an Australian court having jurisdiction in the state or territory where there are assets of the deceased, must distribute those assets among the persons who are entitled to receive them under the law of the deceased’s last domicile.
...
Immovables
38.7 In relation to immovable property, the lex situs determines the beneficial succession on intestacy no matter what the domicile of the intestate. Thus, if a person dies domiciled abroad leaving immovable assets within the forum, those assets must be distributed among the persons entitled to them under the law of the forum: Re Ralston [1906] VLR 689.
(Footnotes incorporated as text)
See also Lewis v Balshaw (1935) 54 CLR 188 at 193.
As a consequence it is necessary to determine the deceased’s last domicile in order to determine what law is to be applied in relation to the distribution of the assets of his intestate estate.
What was the deceased’s domicile at the date of his death?
The function of domicile is to establish the “technically pre-eminent headquarters” that every person is compelled to have so that certain rights and duties attached to it may be determined: Nygh’s Conflict of Laws in Australia (9th ed, 2014) at [13.5]. The three types of domicile are domicile of origin, domicile of dependence (also called domicile by operation of law) and domicile of choice. The law relating to domicile is affected in the Territory by the Domicile Act 1982 (Cth).
In the present case, given that the deceased was born in India, that is his domicile of origin. Australia then became his domicile of choice when he moved here in 1998 as he was physically located here and had the intention of remaining here indefinitely: Domicile Act 1982 (Cth) s 10.
The question in the present case is whether or not the deceased’s domicile of choice changed when he returned to live in India after the accident. Although the evidence is limited, on the basis of that evidence I have found that he remained significantly cognitively impaired. Nygh’s Conflict of Laws in Australia (9th ed, 2014) identifies the issue as follows:
13.22 Because acquisition of a domicile of choice depends in part upon intention, special difficulties arise in relation to persons of unsound mind. The Domicile Acts specifically state that they do not alter the common law in relation to such people. If a person by reason of mental illness is incapable of the required intention to settle in a country indefinitely, his or her domicile remains unchanged as long as the incapacity persists. It would seem that the domicile of the mentally-ill person cannot be changed by the guardian.
If, however, the incapacity exists during infancy, the dependence on the paternal, and in appropriate cases, the maternal, domicile continues even after the age of majority has been reached.
(Footnotes omitted)
The relevant provision in the Domicile Act 1982 (Cth) is s 8 which provides:
8 Capacity to have independent domicile
(1) A person is capable of having an independent domicile if:
(a) he or she has attained the age of 18 years; or
(b) he or she is, or has at any time been, married;
and not otherwise.
(2)Subsection (1) does not apply to a person who, under the rules of the
common law relating to domicile, is incapable of acquiring a domicile by reason of mental incapacity.
The authority cited in Nygh’s Conflict of Laws in Australia (9th ed, 2014) for the proposition that a person’s domicile remains unchanged as long as the incapacity persists is Kertesz v Kertesz [1954] VLR 195. In that case Sholl J said (at 197):
But a change of the domicil of choice, even by reverting merely to the domicil of origin, must be effected animo et facto. Both the intention to retain the domicil of choice, and the fact of residence therein, must be terminated: see Halsbury’s Laws of England (2nd ed.), vol. 6, p. 210; Dicey on Conflict of Laws (4th ed.), pp. 110, 140; and the extreme case of In bonis Raffenel (1863), 32 L.J.P. 203. … If, in the present case, the respondent’s animus manendi [intention to remain] ceased as the result of insanity, the factum of his residence in Victoria did not, for he has ever since he became insane been confined in institutions within Victoria, and accordingly cannot be held to have changed his Victorian domicil of choice.
There is, indeed, a wider principle of the English law as to the domicil of insane persons, which if applied to this case would produce the same result. It is a principle developed before the emergence of the modern view that the intention of a lunatic might for some purposes at least be investigated with the aid of medical testimony. Rejecting the doctrine favoured by some American Courts, that the domicil of an adult lunatic, like that of a child, might be changed by the action of his committee (or other legally constituted guardian), that English Courts have adopted the theory that a lunatic retains the domicil which he had at the time when he began to be legally treated as insane–see Dicey, op. cit., pp. 140-1; Halsbury’s Laws of England, loc. cit; and Urquhart v. Butterfield (1887), 37 Ch. D. 357, at p. 382, per Cotton L.J., and p. 386, per Lopes L.J.
The potential difficulties of the common law rule have been long recognised. Cheshire in Private International Law (5th ed, 1957) at 187-188 provides:
Although there is no direct authority, it is generally argued that the domicil of a lunatic cannot be changed either by himself or by the person to whose care he has been entrusted. Of course, in accordance with the general principle applicable to infants, the domicil of the father will be communicated to a child of unsound mind during the minority of the latter, but a somewhat irrational distinction has been suggested as regards an adult lunatic. If he has been continuously insane both during and after infancy, it is said that his domicil will continue to change with that of his father; but that if he first becomes insane after reaching his majority, his then domicil becomes indelible, for if the power of changing it were vested in the father or committee great danger might be done to ‘the interests of others’. The correct solution, though not yet supported by authority in England, seems clear enough. The paramount consideration is the interest of the lunatic, not of others. Therefore, subject to the approval of the court, his committee should be entitled to change his domicil if this appears to be for his benefit.
(Footnotes omitted)
The discussion of “lunacy” and “lunatics” is clearly outdated. While “since early times” a distinction has been recognised between “natural fools” who were incurable and whose lack of capacity was from birth and “lunatics” who became insane after birth and whose incapacity was or might be temporary or intermittent: Halsbury’s Laws of England (3rd ed, 1960) vol 29 at 403, the discussion in the authorities appears to use the term “lunatic” in the manner in which it was used in the Lunacy Act 1890 (UK) under which the question was whether or not the person was incapable of managing himself or his affairs. For the purposes of the common law I have treated the reference to “lunatic” as equivalent to being a person who is mentally disordered so as to be incapable of managing the person’s own affairs.
The fact that the concept of lunacy has been overtaken by statutory measures which recognise a variety of degrees of impairment and how the common law test for domicile should be treated in that context is explained in Dicey and Morris on The Conflict of Laws (12th ed, 1993) at 156 which states the rule as follows:
RULE 16–A mentally disordered person cannot acquire a domicile of choice and, subject to the Exception hereinafter mentioned, retains, while he remains mentally disordered, the domicile which he had when he began to be legally treated as insane.
The exception referred to is that a person who is born mentally disordered is treated as if the person remained a dependent child, a circumstance not relevant in the present case.
Included in the authority for Rule 16 is Kertesz v Kertesz [1954] VLR 195. The text recognises that the term “lunatic” is an outdated one and that the common law rule has not adjusted itself to the varieties of mental disorder which are now recognised:
The English cases which support these statements are, with one exception, concerned with persons who were “lunatics so found” by inquisition. This procedure, and the term “lunatic,” are obsolete in English domestic law, which now recognises and makes provision for many kinds and degrees of mental disorder .… Not all those who suffer from one of the recognised types of mental disorder will be regarded as dependent persons within our Rule. Although there is no authority on the point, the question whether a mentally disordered person can change his domicile would appear to be a question of fact, as are other questions of capacity in English law: does the propositus have the ability to form the necessary intention? It seems inappropriate to link the question of capacity for the purposes of the law of domicile to the use of compulsory detention or guardianship. The use of these procedures depends, at least in part, on the practice of social workers and hospital staff which may be more closely related to the immediate circumstances and willingness to cooperate of the patient than to factors relevant to the law of domicile.
Where the rule that a mentally disordered person cannot change his domicile applies, it is quite general in scope. Thus it does not seem that such a person’s domicile will be changed because he is moved from one country to another by the person in charge of him, or under the direction of the appropriate administrative authority.
(Footnotes omitted)
This passage appears to me to more appropriately formulate a modern statement of the common law. It invites the determination of a question of fact whether or not the mentally disordered person has formed the intention to make the place where he or she is living his or her residence for the indefinite future.
In the present case there is no evidence specifically dealing with the deceased’s capacity to form an intention in relation to his indefinite residence. However on the findings of fact that I have made it is more likely than not that the deceased remained unable to form an intention to change his place of domicile and hence that at the date of his death his domicile remained in the Australian Capital Territory notwithstanding his physical presence in India for many years.
Application of the Act
Because I have concluded that the deceased’s domicile remained the Australian Capital Territory it is the law of the Australian Capital Territory that must be applied. In the present case s 49 of the Act applies. Section 49 requires distribution in accordance with sch 6. Part 6.2 of sch 6 applies if the intestate is not survived by a “partner”. “Partner” is defined as relevantly “the spouse … of the intestate when the intestate died”: s 44. Because the deceased and his wife were divorced on 15 October 2005 she was not his partner for the purposes of those provisions in the Act and hence pt 6.2 of sch 6 applies. Item 2 of pt 6.2 applies if the intestate is not survived by issue but is survived by a parent or both parents and prescribes that, where there is only one surviving parent, the parent is entitled to the whole of the intestate estate. This has the effect that the deceased’s father, Mr Bedake, is entitled to the whole of his estate and hence to the distribution of the assets that exist in the Australian Capital Territory.
Required distribution if the domicile of the deceased was India
Because of the absence of specific evidence about the mental state of the deceased during the period when he was residing in India I set out below the reasons for concluding that even if he had formed the intention to reside indefinitely in India and hence his domicile of choice was India the same distribution of his estate in the Australian Capital Territory would be required.
Section 8 of the Hindu Succession Act 1956 (India) (the Hindu Act) is the relevant Indian law that would apply to the property of the kind here in question of an intestate Hindu in India. The deceased was born into the Hindu religion and the Brahmin caste.
The effect of s 8 of the Hindu Act is that the property of a male Hindu dying intestate shall devolve as follows:
(a)firstly upon the relatives specified as Class I heirs;
(b)secondly, if there is no heir of Class I, then upon the relatives specified as Class II heirs;
(c)thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased;
(d)lastly, if there is no agnate, then upon the cognates of the deceased.
In the circumstances of this case it is not necessary to explain what is meant by “agnates” and “cognates” of the deceased.
The Schedule of the Hindu Act specifies the members of each of the classes mentioned above which are as follows:
Class I
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.
Class II
I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.
Section 9 of the Hindu Act states that among the heirs specified in the Schedule, those in Class I shall take simultaneously to the exclusion of other heirs and those in the first entry in Class II “shall be preferred” to those in the second entry, who shall be preferred to those in the third entry, and so on in succession. Section 11 of the Hindu Act states that the property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally.
The intention of the legislation, as indicated by the language and structure of s 8 read in accordance with the Schedule of the Hindu Act, appears to be to devolve the intestate deceased’s property to a designated beneficiary, in the order in which beneficiaries appear first in a capital Roman numeral sub-class and then in an Arabic numeral sub-sub-class, until one or more beneficiaries is found. Because the father of an intestate is in an earlier sub-class of Class II than the sister of an intestate it follows that the father shall be preferred to the exclusion of the sister.
This interpretation of the Hindu Act is confirmed by the evidence of Chakrapani Misra who gave evidence by way of affidavit. He is a practising advocate in India and was admitted to practise law by the Bar Council of Maharashtra and Goa in 1992. He has practised in the areas of dispute resolution, wills and estates for over 20 years. The opinion that he expressed in his affidavit was as follows:
We understand that Milind Bedake died intestate in Maharashtra, India, leaving behind a surviving father, as well as certain assets in Canberra, Australia. The Hindu Succession Act, 1956 (“HSA”) would generally govern succession to the property of a person who is Hindu, Buddhist, Jain or Sikh, or who is not a Muslim, Christian, Parsi, or Jew, within the territory of India. Assuming Milind was a Hindu, the HSA would apply to the distribution of his property or assets, and it would appear in the situation described above that you are correct in suggesting that his father would be his sole heir. However, the jurisdiction of the HSA is territorially limited, and it may not be correct to state that the HSA would operate with respect to assets situated outside the territory of India.
I do not consider that the qualification in the last sentence of the above quote is of significance since it is not the Hindu Act applying by its own force but instead it is the common law of Australia as modified by the Domicile Act 1982 (Cth) which is applying the Hindu Act to determine the appropriate distribution of the estate within the Territory.
Applying the Hindu Act to the circumstances of the present case, there are no individuals that would classify as Class I heirs. The deceased’s only surviving blood relatives, namely his father Mr Bedake and his sister Mayuru Bedake, classify as Class II heirs. Mr Bedake would take in priority to Mayuru Bedake because he is in the first sub-class of Class II heirs and she is in the second sub-class. As a consequence, under the provisions of the Hindu Act, Mr Bedake would be entitled to the assets of the estate within the Australian Capital Territory.
This means that whether the deceased’s domicile at the date of his death was the Australian Capital Territory or India, the required distribution of his assets within the Territory is the same, namely, to his father, Mr Bedake.
Conclusion and order
Because Mr Bedake is entitled to the assets of the deceased in the Territory it is appropriate to make the order sought by the Public Trustee. The order of the Court is therefore:
1. Pursuant to s 97 of the Administration and Probate Act 1929 (ACT) the Public Trustee for the ACT shall distribute the balance of the estate of the deceased, Milind Bedake, to the deceased’s father, Manohar Baburao Bedake of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Kolhapur, Maharashtra State, India by payment to his bank account with the State Bank of India, account number xxxxxxxxxxx; CIF number xxxxxxxxxxx.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 2 September 2015 |
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