Re Ghosh
[2022] VSC 410
•22 July 2022
| 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 an application pursuant to r 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 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 and 1324 of the Corporations Act 2001
BETWEEN:
| ANABAN GHOSH (in his capacity as Executor of the will of Aroti Ghosh, deceased) | Plaintiff |
| v | |
| NEELANJAN GHOSH (both personally and in his capacity as Executor of the Will of Aroti Ghosh, deceased) | First Defendant |
| GHOSH ENTERPRISES PTY LTD (ACN 070 687 679) | Second Defendant |
| GREENHAVEN FUNERALS PTY LTD (ACN 159 798 964) | Third Defendant |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19, 22 July 2022 |
DATE OF RULING: | 22 July 2022 |
CASE MAY BE CITED AS: | Re Ghosh |
MEDIUM NEUTRAL CITATION: | [2022] VSC 410 |
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ADMINISTRATION AND PROBATE – Application for disposal of body – Coroner concluded not a reportable death - Defendant brother appealing Coroner’s conclusion - Plaintiff brother sought cremation of mother’s decomposing body – Defendant brother sought to retain as potential evidence – Will contended to be invalid - Court not constrained to determine person with greatest right to be appointed administrator - Plaintiff brother sought interim injunction to prevent first defendant’s dealing with assets of the deceased estate – Application granted – Order 54.02 Supreme Court (General Civil Procedure) Rules2015.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms R G Morison | Shiff and Company Lawyers |
| For the First and Second Defendants | Litigant in person | |
| For the Third Defendant | No appearance |
TABLE OF CONTENTS
A. Background................................................................................................................................... 1
B. Addition of the funeral parlour................................................................................................. 4
C. The disposal of the deceased’s body........................................................................................ 4
D. The house...................................................................................................................................... 9
E. The deceased’s bank accounts.................................................................................................. 10
F. Ghosh Enterprises Pty Ltd........................................................................................................ 11
G. Costs............................................................................................................................................. 12
H. Final Matters............................................................................................................................... 12
HIS HONOUR:
A. Background
Aroti Ghosh died in hospital on 9 June 2022 aged 76. She had Covid-19 and other health issues at the time of her death. She had two sons, Anaban Ghosh, the plaintiff, and, Neelanjan Ghosh, the first defendant. For convenience, and without meaning any disrespect, I will refer to them by their first names. Neelanjan believes that his mother was, as he puts it, ‘murdered’ by the hospital. He raised his concerns with the Coroner, who after an investigation, determined on 22 June 2022 that her death was not a ‘reportable death’ as that term is defined in s 4 of the Coroners Act 2008.[1] The Coroner concluded that the deceased’s death ‘was due to natural causes on a background of significant immunosuppression which arose in the context of a complex and significant medical history’. Neelanjan has, or intends, to appeal that finding.[2] Anaban believes that there is no cause for his mother’s death to be investigated by the Coroner.
[1]See Coroners Act 2008 (Vic) s 16.
[2]See Coroners Act 2008 (Vic) s 78.
The Coroner released the deceased’s body and it is now in the custody of a funeral parlour, Greenhaven Funerals Pty Ltd. At the request of Neelanjan, it has not been embalmed. The funeral parlour has advised that the deceased’s body has started to deteriorate. Indeed, the funeral parlour has described the body’s condition as in ‘a significant state of deterioration and decay’. I accept that evidence. More specifically, the funeral parlour describes the body’s condition as follows (which description I accept):
The right hand side of the deceased’s head has extreme discolouration. Parts of the deceased’s head, in particular the right-hand side, have turned purple and black and are leaking body fluid. I observed that mould has started to grow in that area of the body and the skin tissue appears to be breaking down.
The inside of the deceased’s mouth and lips have significant amounts of mould growing on them due to bacteria and the moist environment in that area of the body.
The skin on the deceased’s eyelid has blistered and her eyes have started to sink, which in my experience, indicates that the eyeballs are changing texture due to decay.
The funeral home expressed its view that moving the deceased’s body other than in a hermetically sealed bag or sealed coffin was ‘becoming a health and safety risk and causing [its] staff to feel anxious’ and that it is now believed it needed ‘to protect ourselves and our staff from the risk that [the un-embalmed deceased] presents currently from continued, ongoing viewings.’ The funeral parlour has indicated that it is not prepared to permit further viewings without the viewer signing a waiver indemnifying it against any ‘stress or trauma’ that might be caused as a result of the deceased’s condition.
Anaban has applied under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for an order that the body be released to him so that he can arrange for a cremation. He wishes to do so ‘to preserve [his] mother’s dignity in death’ and so that he may pay his last respects in a funeral ceremony. Neelanjan opposes this course: he wants to delay the cremation until after the hearing of his appeal against the Coroner’s finding, so that his mother’s body will be available as evidence in any subsequent investigation into the conduct of the hospital.
The matter came on for urgent hearing in the Practice Court on 19 July 2022. Anaban had an affidavit in support. The application was adjourned to today to give the parties an opportunity to file any affidavit material or further affidavit on which they sought to rely. Leave was given to Neelanjan to appear for Ghosh Enterprises Pty Ltd.
Anaban has produced a will apparently signed by the deceased in the presence of two witnesses appointing him and Neelanjan as joint executors of the estate. Probate has not been granted. Neelanjan contends that the will is either a forgery or is invalid because the deceased did not at that time in 2011 have the mental capacity to prepare a will and on the ground that if such a will had been executed he would have been aware of it. The purported will leaves a house presently registered in the name of the deceased and her husband (who predeceased her) as joint tenants to Neelanjan and the balance of her estate to Anaban. It also seeks to provide for financial adjustments as necessary to ensure that the value that each receives is the same. Anaban contends that, since the deceased’s death, Neelanjan has withdrawn sums from the deceased’s bank accounts, and has effected a change of ownership and control to himself in a company previously owned by the deceased, Ghosh Enterprises Pty Ltd. Anaban has produced statements of the deceased’s bank accounts that show numerous transactions including withdrawals since the date of the deceased’s death, and company search results that show that on 15 July 2022, which was six days after the deceased’s death, Neelanjan lodged documents with ASIC by which he was appointed a director and the secretary of Ghosh Enterprises Pty Ltd, and the transferee of all of its shares. Anaban has also sought an order restraining Neelanjan until further order from disposing of the assets of the estate.
Rule 54.02 empowers the court to grant any relief that could be granted in an administration proceeding. That includes the determination of any question which could be determined in an administration proceeding including any question arising in the administration of an estate. There is no dispute that this power permits the court to determine who is to undertake the task of disposing of a body and as to the manner and place of disposition,[3] and to make orders identifying what assets are assets of the estate. Similarly the court has power, either directly under r 54.02 or as an ancillary to the powers given by that rule, to make interlocutory orders restraining the disposition of assets that are or might be assets of the estate.
[3]See, eg, Leeburn v Derndorfer (2004) 14 VR 100, 103 [12] (Byrne J), approved in Re Horner [2020] VSCA 85, [54] (Tate and Kaye JJA); Wang v Jiang (No 2) [2022] VSC 371, [30] (Moore J). The Court probably also has inherent jurisdiction to decide this issue – see Minister for Families and Communities v Brown [2009] SASC 86, [3] (Gray J).
Neelanjan has submitted that Anaban does not have standing to bring this application on the basis that it is brought based on ‘an invalid will’ and contends that it ought to be summarily dismissed.
I am unable in this proceeding to make a finding on whether or not the will is invalid. But I am satisfied that Anaban, as a family member, potential beneficiary under a will, or potential next of kin, has standing to bring this proceeding.
In determining who is to undertake the task of disposing of a body and the manner and place of disposition, the court should not make findings on contested matters of fact other than to the extent that is strictly necessary.[4]
B. Addition of the funeral parlour
[4]Leeburn v Derndorfer (2004) 14 VR 100, [62]; Keller v Keller (2007) 15 VR 667, [9] (Hargrave J); Re Horner [2020] VSCA 85, [66] (Tate and Kaye JJA).
Anaban has applied by summons for an order adding the funeral parlour, Greenhaven Funerals Pty Ltd, as a defendant to the proceeding. As noted above, Greenhaven Funerals Pty Ltd currently has possession of the deceased’s body. The proceeding seeks, among other things, orders as to the disposition of the body.
The summons for an order to add Greenhaven Funerals Pty Ltd was provided to Greenhaven Funerals Pty Ltd. Greenhaven Funerals Pty Ltd has provided a letter to the Court indicating that it did not intend to appear but agreed to be bound by any orders made by the Court.
I accept that it is appropriate that Greenhaven Funerals Pty Ltd be added so that it will be bound by any orders made in relation to the body, and I will make an order to that effect.
C. The disposal of the deceased’s body
The executors of an estate are responsible for disposing of the deceased’s body.[5] Where no executors have been appointed, and it is possible to identify a person with the best legal claim to be appointed administrator, the court’s role will ordinarily be to identify that person and direct that that person has the power and responsibility to dispose of the body.[6] That rule is not absolute.[7] Further, where persons are ‘on an equal footing as regards the right to disposal’, the court has to resolve the argument in a practical way paying due regard to the need to have the body disposed of without unreasonable delay but with all proper respect and decency[8] including the sensitivity of various relatives and any religious, cultural or spiritual matters which might touch upon the question;[9] put another way, in those circumstances the court must, to the extent it can, consider ‘the merits’ of the competing claims to disposal of the body.[10]
[5]Williams v Williams (1882) 20 Ch all D 659, 665 (Kay J); Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997) 6, Leeburn v Derndorfer (2004) 14 VR 100, (Byrne J); Keller v Keller (2007) 15 VR 667, [6] (Hargrave J); Smith v Tamworth CC (1997) 41 NSWLR 680, 693G (Young J).
[6]Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997), 8; Smith v Tamworth CC (1997) 41 NSWLR 680, 694B (Young J), Keller v Keller (2007) 15 VR 667, [18].
[7]Jones v Dodd (1999) 73 NSWLR 328, [40], [46], [50]; Wang v Jiang (No 2) [2022] VSC 371, [39] (Moore J).
[8]Calma v Sesar [1992] 2 NTLR 37, 42 (Martin J); Smith v Tamworth (1997) 41 NSWLR 680, 694B (Young J).
[9]Jones v Dodd (1999) 73 SASR 328, [51], [55] (Perry J, with whom Millhouse and Nyland JJ agreed).
[10]Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997) 7.
I am not in a position to determine whether or not probate of the will will be granted. Probably, in those circumstances, it is appropriate to proceed on the basis that probate will in due course be granted, as the will appears, on its face, to be valid, and, on the evidence as it currently stands, I am not satisfied it was probably created fraudulently or that the deceased lacked the mental capacity to sign it.[11] Neelanjan is critical of Anaban for not producing an original of the will. But I am not persuaded by this that the will must be invalid: Anaban has sworn that he was provided by his mother with a copy of the will in or around mid-2012, and I am not in a position simply to reject this evidence which would be a plausible reason for which he would have possession of a copy of the will, rather than the original will.
[11]Cf Wang v Jiang (No 2) [2022] VSC 371 (Moore J).
But the result of the application in relation to the deceased’s body does not depend on whether or not probate would be granted. If probate is granted, the brothers will both be executors and in that sense neither would have a greater claim than the other to the legal right to determine the means of disposal of the body. If probate is not granted, and the deceased died intestate, then the brothers will both be next of kin and entitled to an equal share in the estate of the deceased.
I am not satisfied that Neelanjan would have a greater legal right than Anaban to be appointed as administrator of the estate. I consider it is appropriate to determine this matter on the basis that both Anaban and Neelanjan, as sons who are to inherit equal shares, whether under the will or otherwise, are on an ‘equal footing’. In those circumstances, it is appropriate that I determine the question of what ought to happen to the deceased’s body. Of course, in doing so I must consider the parties’ respective positions.
In my view, the matter comes down to whether further delaying the cremation would give sufficient potential advantage to Neelanjan, or otherwise be in the interests of justice in the event that he succeeds in his appeal and needs the body to be available as evidence in any subsequent investigation, to justify allowing the body to continue to decompose. In this context, I accept that there is a general public interest to be weighed in this case that bodies of deceased persons be treated with respect and cremated or buried reasonably promptly and not be permitted unnecessarily to decompose before so doing.
I have concluded that the cremation ought not to be delayed until after the hearing and determination of any appeal against the Coroner’s determination but that it should take place as soon as it can be arranged in the ordinary course. I have reached these conclusions for the following reasons:
(a) I am not satisfied that there is a real prospect, let alone a likelihood, that any appeal against the Coroner’s determination that the deceased’s death was not a ‘reportable death’ would succeed. The Coroner noted that the records contained ‘extensive documentation that [the deceased] had numerous medical problems including post-renal transplantation, mitral valve replacement, immunosuppression, osteoporosis, heart failure, a pacemaker and diabetes’. The Coroner stated that the deceased’s hospital admission ‘largely revolved around her deteriorating lung function on a background of COVID 19 positivity and changes in keeping with Covid 19 pneumonia.’ The Coroner noted that the deceased was unvaccinated and immunosuppressed. The Coroner then accepted the opinion of a forensic pathologist with the Victorian Institute of Forensic Medicine, who had been provided with all of the clinical records and Neelanjan’s concerns, that the deceased’s death was due to natural causes on a background of significant immunosuppression which arose in the context of a complex and significant medical history. Neelanjan has not produced any medical opinion to contradict the Coroner’s conclusions or the medical opinion accepted by the Coroner. He has not, for example, produced any evidence to the effect that his mother’s death was as a result of any mistreatment or inadequate treatment on the part of the hospital. Further, his proposed appeal is limited to an appeal on a question of law.[12] Even if Neelanjan were to produce evidence that contradicted the medical evidence relied upon by the Coroner, he would need to establish that it was not reasonably open to the Coroner to rely on the medical evidence that the Coroner relied on to form the views she did.
(b) I am not satisfied that the retention of the deceased’s body would be necessary for any subsequent investigation to be effective. Neelanjan did not produce any evidence to the effect that it would be necessary to go beyond the medical records in order to determine whether the hospital had mistreated the deceased. Nor did he produce any evidence that, if it would be necessary to go beyond the medical records, the deceased’s body would remain in a sufficient condition to permit a useful examination by the time the appeal had been heard and determined. It is to be borne in mind that it is already some six weeks since the deceased’s death, her body has started to decompose, and it will continue to decompose. Neelanjan was not proposing any steps by which the decomposition of the body could be halted; his expectation was that the funeral home would continue to hold the deceased’s body as it had been doing for the past six or so weeks. Where extensive contemporaneous medical records are available, I am not prepared to conclude, in the absence of evidence on the point, that an investigation into the cause of death could not properly be performed without the examination many weeks or months later of a significantly decomposed body.
(c) It is contrary to society’s (and other family members’) expectations relating to the dignity with which the bodies of deceased should be treated that they be permitted to deteriorate substantially unless there is very good reason to do so.
[12]Coroners Act 2008 (Vic) s 87(1).
On balance, and in summary, I do not consider that the potential benefits to Neelanjan or the administration of justice in the investigation of deaths justifies allowing, particularly over the wishes of another family member, the deceased’s body to deteriorate further before it is cremated.
Also, as discussed further below, Neelanjan contends that the house was given to him by his mother in 2012, and that accordingly the house is already his and not part of the estate. If this is so, then it may be that the entire estate will now go Anaban.[13] On that basis Anaban might have the greater legal right to be appointed administrator if the will cannot be proved. I have not relied on that possibility in reaching the conclusion I have. Similarly, even if I had formed the view that Neelanjan had a greater legal right to be appointed administrator of the estate in the event that the deceased died intestate, on the grounds that he had been living with his mother prior to his death and had a close or closer connection with her, I would have come to the same conclusion. Although the court will ordinarily defer to the wishes of the person with the greater legal right to be appointed administrator, it is not required to do so; the power under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 is not so constrained.[14] It makes good sense to defer to the wishes of the person with the greater legal right to be appointed administrator when there are differing views among family members relating to matters such as whether or how a body should be buried or cremated, what should happen to the ashes, or where a body should be buried. But in this case, both brothers agree that the deceased’s body should be cremated and cremated in Victoria. The dispute is simply about when that cremation should take place. Neelanjan’s wish to delay the cremation arises because of his desire to hold the hospital to account for what he considers to be its mistreatment of his mother. I accept that this desire is motivated by his love for his mother and his belief that by seeking to establish that his mother was mistreated he is acting in a sense in his mother’s interest. However, as discussed above I am not convinced it is necessary for the deceased’s body to be maintained for the purposes of the appeal of the Coroner’s decision.
[13]On the basis that the specific gift of the house was adeemed.
[14] Jones v Dodd (1999) 73 NSWLR 328, [40], [46], [50]; Wang v Jiang (No 2) [2022] VSC 371, [39] (Moore J).
Further, although Neelanjan contended that his cultural practices should be respected, his wish to delay the cremation has nothing to do with Hindu beliefs or cultural practices, or indeed any expressed wishes of the deceased. Indeed, in the Hindu tradition a body is usually cremated within a matter of days of death. Similarly, the fact that under Hindu traditions the elder son may, as he asserts, but did not depose to, be the person responsible for making funeral arrangements is of limited relevance and would not affect my decision.
D. The house
Neelanjan contended that the house left to him in the will had already been given to him many years prior to the deceased’s death, and has produced a signed transfer of land dated 4 May 2012. He also asserts that rates and other like notices were addressed to him, as well as to his mother, and has produced some correspondence that supports this. When the house was initially purchased in 1990, it was in Neelanjan’s name, along with the names of his parents. By 26 September 2002, the property was registered jointly in the names of the deceased and her husband.
How Neelanjan’s name came to be removed from the register, and why the transfer to him was not lodged for registration, was not adequately explained. If, as Neelanjan asserted orally, his mother did not have the mental capacity to execute a will in late 2011, a question may arise as to her capacity to sign a transfer of the property to him in 2012. Anaban does not accept that the house was transferred to Neelanjan and does not form part of the deceased’s estate.
I am prepared to accept that if a transfer was signed transferring the property to Neelanjan prior to the deceased’s death, then the interest in the house would not be an asset of the estate even if that transfer were not registered prior to the deceased’s death. If, however, the house had not been given to Neelanjan prior to the deceased’s death, then the house would form part of the estate. If, then, as Neelanjan asserts is the case, the deceased died intestate, he would have no greater right to the house than Anaban. In those circumstances, if Neelanjan were to dispose of the house or to use it as security or to create any interest in any other party, Anaban could potentially suffer significant detriment.
Neelanjan contends that there should be no restraint placed on him in relation to the house on the basis that it is his property. I accept that he has an argument that the property is his. However, I am unable, in this application, to determine that question.
In these circumstances, the balance of convenience justifies the maintenance of the status quo pending the determination of questions including whether or not the will was valid and what assets are within the estate. For this reason, I propose to make an interlocutory injunction that has the effect of precluding Neelanjan from lodging the transfer with the titles office or otherwise dealing with the property until the ownership of the property and the validity of the will have been determined, or further order. In this respect, I note that Neelanjan did not identify any prejudice that he would suffer from such a restraint.
In the event that Neelanjan has a pressing need to dispose of the property, or to use it as security, then he will have the ability to seek to have that order varied.
E. The deceased’s bank accounts
If the will is valid, Neelanjan will inherit the house (if it is not already his) in which he resided with the deceased, but no other assets of the deceased. As noted above, Anaban has produced bank statements for accounts in the deceased’s name that reveal numerous transactions, including many withdrawals, since the date of the deceased’s death. Neelanjan does not dispute that he has been effecting many withdrawals. He asserts, and I accept, that some of those were payments to the funeral parlour. He asserts that (at least) some of the other debits were used to meet ordinary household expenses.
Neelanjan justified this on the grounds that the household expenses have, for the last 40 or so years, been paid from those accounts. Further, he contended that the deceased previously intended for at least some of these bank accounts to be joint accounts with him, and that it would have been the wish of his mother than he have access to these accounts.
That said, Neelanjan has not produced any evidence that establishes that he has any rights over the moneys that exist in accounts that are held in the deceased’s name. Even if, as Neelanjan contends, the house is in truth his, that is no reason for which the estate should be paying the bills associated with its ownership and use. Until such time as it is ascertained who is to administer the deceased’s estate, it is inappropriate that the moneys that exist in those accounts be spent. I am satisfied that unless restrained from doing so, Neelanjan will continue to use those moneys. He asserts a right to do so. Neelanjan, who is a qualified engineer, has not put forward any evidence establishing pressing financial need to access those moneys. Accordingly, I will make an order restraining him from withdrawing any moneys from those bank accounts until further order.
Anaban accepted a carve out for withdrawals or transfers by pre-arranged direct deposit, and the order will accommodate that.
F. Ghosh Enterprises Pty Ltd
At the time of the deceased’s death, she was registered as the director of and sole shareholder in Ghosh Enterprises Pty Ltd. Neelanjan said that prior to her death the deceased had transferred shares to him and that he had been appointed a director of this company. Anaban does not accept that this is so. Neelanjan has not produced the actual signed transfer documents. The changes recorded by ASIC were not made until after the deceased’s death.
As with the property, if Neelanjan is correct, then the shares in Ghosh Enterprises Pty Ltd are not assets of the estate. If he is not correct, then allowing him to dispose of the shares in Ghosh Enterprises Pty Ltd, or allowing Ghosh Enterprises Pty Ltd to dispose of any of its assets, could cause detriment to Anaban as a beneficiary of the residual estate under the will or as someone entitled to a share of the estate in the event that the deceased died intestate. Neelanjan has not identified the assets owned by Ghosh Enterprises Pty Ltd, beyond asserting, from the bar table, that the only asset is an inexpensive motor vehicle.
As with the house, if, as Neelanjan asserted, his mother did not have the mental capacity to execute a will, it is not clear that she would have had the mental capacity to transfer shares to Neelanjan.
Again, the balance of convenience favours maintaining the status quo until the determination of this matter or further order. Accordingly, I propose to make an order restraining Neelanjan from disposing of any assets owned by Ghosh Enterprises Pty Ltd, until further order. Again, if there is some pressing need to do so identified by him, he can apply to have that order varied.
G. Costs
Costs should follow the event. I will order that Neelanjan pay Anaban’s costs of this proceeding to be taxed in default of agreement on the standard basis.
H. Final Matters
I confirm, for the avoidance of doubt, that nothing said in these reasons amounts to any final conclusion of the matters in issue between the parties.
I propose otherwise to refer the balance of the Orders sought to the judicial officer in charge of the probate list.
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