Re Kumar

Case [2017] VSC 81 3 March 2017

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2013 12315

AMRIT LAL and ASHA KIRAN

Plaintiffs

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2016
DATE OF JUDGMENT:	3 March 2017
CASE MAY BE CITED AS:	Re Kumar
MEDIUM NEUTRAL CITATION:	[2017] VSC 81 First Revision 6 March 2017

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SUCCESSION LAW — Where the deceased died intestate leaving a wife but no children — Where the deceased’s wife survived the deceased but died on the same day as the deceased — Entitlement to deceased’s intestate estate

WILLS AND ESTATES — Where deceased’s wife allegedly killed the deceased —Where deceased’s wife was not tried for alleged crime — Whether deceased’s wife morally culpable for deceased’s death so as to invoke forfeiture rule — Edwards v State Trustees Limited [2016] VSCA 28

PRACTICE AND PROCEDURE — Where Court appointed amicus curiae to represent the interests of the deceased’s wife’s estate to assist in the determination of the issues — Civil Procedure Act 2010, s 7

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	Easton Legal
Amicus curiae	Mr J L Smith	Suzanne Lyttleton

HER HONOUR:

Introduction

Asim Kumar (‘the deceased’)[1] died on 11 June 2012. At the time of his death, the deceased was married to Nidhi Parashar (‘Ms Parashar’). They lived together in a property in Blackburn, Melbourne (‘the matrimonial home’).
[1]Mr Sharma was also known as ‘Asim Kumar Sharma’ and ‘Asim Sharma’.

On the morning of 11 June 2012, a neighbour observed a woman, later identified as Ms Parashar, hanging from the carport of the matrimonial home. Having been alerted by the neighbour, police attended the scene and forced entry into the house. In a bedroom at the rear of the property, the deceased was found lying on a bed, having died from a combination of multiple blunt force wounds to his head and nine stab wounds to his chest and abdomen. A cricket bat and kitchen knife, both blood-stained, were found in the bedroom.

Despite searches, no last will and testament of the deceased has been found. The deceased’s estate has a net value of approximately $290,447.

Plaintiffs’ application

By originating motion filed 2 August 2013, the deceased’s parents, Amrit Lal and Asha Kiran (‘the plaintiffs’), applied for a grant of administration for the estate of the deceased. In order to determine whether the plaintiffs are entitled to a grant of administration, it must be determined whether the estate of Ms Parashar has any interest in the deceased’s estate. This raises two key issues for determination:

(a) Who of the deceased and Ms Parashar died first?

(b) If Ms Parashar survived the deceased, does the forfeiture rule preclude her estate from taking an interest in the deceased’s estate?

Ms Parashar’s parents were given notice of the plaintiffs’ application but did not seek to be joined as parties to the proceeding. In these circumstances, the Court appointed an instructing…

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 Re Kumar

Details

AGLC: Re Kumar [2017] VSC 81
Case: [2017] VSC 81
Decision Date: 3 March 2017

CaseChat Overview and Summary

The parties involved in this case were the deceased, their wife, and the interested parties to the estate. The deceased died intestate, leaving no children but a surviving wife. The dispute centred on the entitlement to the deceased's intestate estate, particularly in light of the circumstances surrounding the death of both the deceased and their wife on the same day. The wife was alleged to have killed the deceased, although she was not tried for the crime. The court was required to determine whether the wife was morally culpable for the death of the deceased and if this culpability would invoke a forfeiture rule under the principles established in Edwards v State Trustees Limited.

The legal issues that the court had to decide involved the forfeiture rule applicable to the estate of the deceased, given the wife's alleged involvement in the deceased's death. The court needed to examine whether the wife could be considered morally culpable for the death, and if so, whether this culpability would lead to her forfeiture of any entitlement to the deceased's estate. Additionally, the court had to consider the procedural aspect of appointing an amicus curiae to represent the interests of the wife's estate, in accordance with section 7 of the Civil Procedure Act 2010.

The court reasoned that the wife's alleged culpability did not necessarily equate to moral culpability under the forfeiture rule. The court found that the wife's involvement in the circumstances of the death did not meet the threshold required to invoke the forfeiture rule, as established in Edwards. The court determined that the wife was entitled to the deceased's estate despite the allegations against her. The appointment of an amicus curiae was deemed appropriate to ensure that the interests of the wife's estate were properly represented and considered in the determination of the case. The court's decision resulted in the wife being entitled to the deceased's intestate estate, with the amicus curiae's representation being recognised as a valuable procedural step.

Orders