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Singh v Singh

Singh v Singh

Case [2008] NSWSC 715 8 July 2008

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CITATION: Singh v Singh; Estate of Hari Bhajan Singh [2008] NSWSC 715

HEARING DATE(S): 7 and 8 July 2008

JUDGMENT DATE :
8 July 2008

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Young CJ in Eq

DECISION: Probate in solemn form granted to the first defendant of the wills of both January and February 2004. Plaintiff to pay 75% of the defendants' costs of the proceedings.

CATCHWORDS: SUCCESSION [55] [[143]- Whether on the whole of the evidence the testator intended for a later will to revoke an earlier will- Evidence indicates that the earlier will is to apply to Australian property and the later will to apply to Fijian property- Construction of phrase "my 50% share in H B Singh (Fiji) Pty Ltd"- Evidence shows the intention of the testator is for the phrase to mean 50% of my shares" subject to the trusts of the will. WORDS & PHRASES- "Properties".

LEGISLATION CITED: Wills Probate and Administration Act 1898, s 29A

CASES CITED: Brown v McEncroe (1890) 11 LR (NSW) (Eq) 134
Doe d Wall v Langlands (1811) 14 EAST 370; 104 ER 644
In re Suisted [1933] NZLR 119
Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151
Re Barker [1995] 2 VR 439
Re Page [1969] 1 NSWR 471; (1969) 90 WN (Pt 1) (NSW) 6
Re Resch's Will Trusts [1969] AC 514
Tatham v Huxtable (1950) 81 CLR 639

PARTIES: Rajindar Singh (P)
Suraj Kumari Singh (D1)
Masotu Pty Ltd (D2)

FILE NUMBER(S): SC P102787/08

COUNSEL: G A Rich (P)
D Murr SC and J Heazlewood (D)

SOLICITORS: Harish Prasad and Associates (P)
Lewarne & Goldsmith (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

YOUNG CJ in EQ

Tuesday 8 July 2008

P102787/08 –SINGH v SINGH; ESTATE OF HARI BHAJAN SINGH

JUDGMENT

1 HIS HONOUR: This probate suit concerns the estate of the late Hari Bhajan Singh who died on 17 August 2006. Although there is some material which might indicate to the contrary in the evidence, both parties are agreed that the deceased died domiciled in New South Wales and I will proceed on that assumption as they have had full opportunity to investigate all the facts.

2 The deceased left a family consisting of his widow, the first defendant, Suraj Kumari Singh, his three daughters, Sasha, Anjil and Premeel, and his son, the plaintiff, Rajindar. Rajindar had a son from his first marriage, Ravi, born on 8 September 1989, and so is now 19, and both those two men lived with the deceased. The second defendant is Masotu Pty Ltd, which is the trustee of a discretionary trust set up by the deceased.

3 The deceased died owning property in New South Wales, principally being: (a) $450,000 on deposit with the Westpac Bank; (b) shares in the family trust company of nominal value; and (c) loans, one owed by the family trust company for $3.2 million and two by Rajindar repayable in 2022 totalling $70,000.

4 The deceased also owned property…

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 Singh v Singh

Details

AGLC: Singh v Singh [2008] NSWSC 715
Case: [2008] NSWSC 715
Decision Date: 8 July 2008

CaseChat Overview and Summary

The case of Singh v Singh was heard in the Supreme Court of Queensland and involved a dispute over the succession of property left by a deceased individual, with the central issue being whether a later will revoked an earlier one. The deceased had property in both Australia and Fiji, and the contention was over the interpretation of a phrase in the later will, "my 50% share in H B Singh (Fiji) Pty Ltd," and its application to the Fijian property.

The court was required to determine the testator's intention with respect to the later will and whether it was meant to revoke the earlier will. The court also needed to interpret the phrase "my 50% share in H B Singh (Fiji) Pty Ltd" and understand if it referred to 50% of the testator's shares in the Fijian company, subject to the trusts outlined in the will.

In delivering the judgment, the court considered the evidence presented and concluded that the testator intended for the earlier will to apply to Australian property and the later will to apply to Fijian property. The court found that the phrase in question was meant to refer to 50% of the testator's shares in the Fijian company, subject to the trusts of the will. The court based its interpretation on the overall evidence and the testator's intention, which was to maintain the trusts as outlined in the earlier will.

The court ruled in favour of the estate being distributed according to the trusts set out in the earlier will for Australian property and the trusts specified in the later will for Fijian property. The court's interpretation of the phrase in question clarified the testator's intention and ensured that the trusts were upheld in accordance with the wills.

Orders