Narsi v Bhindi - [2008] NSWSC 1160

CITATION: Narsi v Bhindi; estate of Kalyanji [2008] NSWSC 1160

HEARING DATE(S): 15/10/08

JUDGMENT DATE :
15 October 2008

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 15 October 2008

DECISION: See para 58 of judgment.

CATCHWORDS: WILLS AND PROBATE – informal wills – testator did not sign in the presence of both witnesses – clear that document was intended to operate as a will and embodied the testamentary intentions of the deceased - WILLS AND PROBATE – rectification – clause distributing corpus was removed by testator in preparing a new will without legal advice – clear evidence that testator intended corpus to pass in the same proportions as income – clear evidence that testator intended to remove period postponing distributions of capital stipulated in previous wills – will rectified

LEGISLATION CITED: Wills, Probate and Administration Act 1898 (NSW)
Evidence Act 1995 (NSW)

CASES CITED: Rawack v Spicer [2002] NSWSC 849

PARTIES: Ramesh Narsi & 1 Or
v
Dhanesh Bhindi & 6 Ors; the estate of Prabhudas Bhindi Kalyanji

FILE NUMBER(S): SC 118838/07

COUNSEL: Plaintiffs: M Lawson
Defendants: J Xenos (sol'r)

SOLICITORS: Plaintiffs: Redmond Hale Simpson Solicitors
Defendants: Xenos Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 15 October 2008

118838/07 Ramesh Narsi & 1 Or v Dhanesh Bhindi & 6 Ors; the estate of Prabhudas Bhindi Kalyanji

JUDGMENT

1 HIS HONOUR: Mr Prabhudas Kalyanji Bhindi died on 12 September 2006 aged 83. The deceased left an estate valued for probate purposes of $3,635,650.95. He had seven children. In 2006 their ages ranged from about 34 to about 57. Between 1987 and 2004, the deceased made at least 13 wills. The last three were made in 1999, 2002 and 2004. The 2002 will has not been located although it is clear from unchallenged evidence from a Ms Proops that such a document existed. A signed copy of the 2004 will has not been produced, but again it is clear from Ms Proops' evidence that on 21 May 2004 the deceased made a will in terms of the unsigned document which has been produced.

2 The plaintiff seeks first a declaration that the document dated 9 February 2006 purporting to be the last will and testament of the deceased was intended by the deceased to constitute his will within the meaning of s 18A of the Wills, Probate and Administration Act 1898 (NSW), secondly, an order pursuant to s 29A of the Act rectifying the will to provide for the distribution of the corpus of the estate, and thirdly a grant of probate in solemn form of the document to be declared to be a will as rectified.

3 The facts are not in dispute.

4 All of the wills between 1987 and 2004 follow a similar pattern whilst varying considerably in detail as to the disposition of the estate. The pattern of the wills was that after appointing executors and trustees, the deceased provided that, "pending the date of distribution…

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 Narsi v Bhindi

Details

AGLC: Narsi v Bhindi [2008] NSWSC 1160
Case: [2008] NSWSC 1160
Decision Date: 15 October 2008

CaseChat Overview and Summary

Narsi v Bhindi is a case before the Court of Appeal, which involves a dispute over the validity of a will and its rectification. The deceased had executed a document which was intended to operate as a will, but it was not signed in the presence of both witnesses. Despite this, the court found that the document embodied the testamentary intentions of the deceased and was intended to operate as a will. The court also considered the issue of rectification, where the testator had removed a clause distributing the corpus of their estate in preparing a new will without legal advice. However, there was clear evidence that the testator intended the corpus to pass in the same proportions as the income and intended to remove a period postponing distributions of capital that had been stipulated in previous wills.

The legal issues before the court were whether the document was a valid will and whether it could be rectified to reflect the deceased's testamentary intentions. The court considered whether the failure to sign in the presence of both witnesses was fatal to the document's validity as a will and whether there was clear evidence to support the rectification of the will. The court found that the document was a valid will and that it could be rectified to reflect the deceased's testamentary intentions. The court found that the failure to sign in the presence of both witnesses did not render the document invalid as a will, as it was clear that the document was intended to operate as a will and embodied the testamentary intentions of the deceased. The court also found that there was clear evidence to support the rectification of the will, as the testator intended the corpus to pass in the same proportions as the income and intended to remove a period postponing distributions of capital that had been stipulated in previous wills.

In reaching its decision, the court considered the principles of informal wills and the circumstances of the case. The court found that the document was intended to operate as a will and embodied the testamentary intentions of the deceased, and that the failure to sign in the presence of both witnesses did not render the document invalid as a will. The court also found that there was clear evidence to support the rectification of the will, as the testator intended the corpus to pass in the same proportions as the income and intended to remove a period postponing distributions of capital that had been stipulated in previous wills. The court ordered that the will be rectified to reflect the deceased's testamentary intentions, and that the estate be distributed accordingly.

Orders