Chand v Kishen [1996] QSC 18

.f; c_ 90/(!;)f f?_ State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BYRNE J No 1094 of 1994 NOEL NERMAL CHAND (AS EXECUTOR OF THE WILL OF KATRI KISHEN, ALSO KNOWN AS KARTARI KISHEN, DECEASED) and JAGAN NATH KISHEN BRISBANE .. DATE 07 /02/96 JUDGMENT 1 ------~--REVISED Cr.~P!ES iSSUEC1 St~te Fepcrtinq Bure2u Datea< 3 I.:)_ I 0 G---------='----,;.......;;;;~-- Plaintiff Defendant -Ith Floor. The l,;m Courts. Gcor.1.w Stred. IJrish:111e. Q. ./()(}{) Telephone: t07) 227 -1360. 1-:!csimile: (()7) 227 5532 -- 1 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) HIS HONOUR: On 12 January 1987 the late Kartri Kishen signed a will. The executor seeks a grant of probate in solemn form. No question of testamentary capacity arises and the execution of the document was duly witnessed. There are two issues. First, whether it is affirmatively established that the testatrix knew and approved of the contents of her three page will: cf Nock v. Austin (1918) 25 CLR 519, 523, 526; Bool v. Bool [1941] QSR 26, 39; Re Herbert Brothers (1990) 101 FLR 279, 289-92. The second is whether the defendant has established that the will was procured by undue influence: See WA Lee, Manual of Queensland Succession Law, 3rd ed (1991), para 310. The will itself is uncomplicated. Clause 1 revokes prior testamentary dispositions. By clause 2, the testatrix's grandson, Noel Chand, is appointed sole executor and trustee. Clause 3 is the dispositive provision, stipulating: "I give devise and bequeath the whole of my estate both real and personal of whatsoever kind and wheresoever situate unto and to the use of my Trustee upon the following Trusts:- (a) To pay all my just debts, funeral and testamentary expenses. (b) As to any real estate of which I shall die possessed to my son Joginder Chand Kishen, also known as Joginder Chand, of 12 Deegan Drive, Goonellabah in the State of New South Wales, farmer, for his own sole use and benefit absolutely. (c) As to any cash moneys and/or funds invested with a bank or building society in my name at the date of my death, to my son Jagan Nath Kishen for his own sole use and benefit absolutely. (d) Provided however that should my son the said Joginder Chand Kishen predecease me then in the event I give and devise any real estate possessed by me at the date of my death to my grandsons, the said Noel Nermal Chand, Tony Anud Chand, Frank Amolak Chand and 2 JUDGMENT -- 2 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) Bobby Manmonhan Nath who shall survive me and if more than one as tenants in common in equal shares." The fourth clause, in four short subparagraphs, lists powers the trustee may exercise. The testatrix had made earlier wills, most recently in 1985. By the 1985 will, the testatrix left her entire estate to her two sons, Joginder Chand and Jagan Nath Kishen, in equal shares. That will also nominated Joginder Chand, her elder son, as executor, with Noel Chand to act in that capacity should Joginder Chand predecease the testatrix. When she died in 1992, and when the 1987 will was made, the testatrix's only substantial asset was a house property at Thornlands. So the main impact of the 1987 will was to leave the great bulk of the estate to Joginder Chand, the father of Noel Chand, leaving her other son with an interest under clause 3(c) of little pecuniary value. The testatrix was an elderly widow from India. Her native language was Punjabi and she could not read English. Beyond those facts the witnesses have different recollections concerning many circumstances pertinent to the 1987 will. There are differences about such things as (i) the extent of Mrs Kishen's comprehension of spoken English; (ii) whether a Mr Prasad explained the will to Mrs Kishen in her native language; (iii) whether the principal beneficiary was with his mother in the solicitor's office while the will was discussed or else gave instructions concerning its terms; and (iv) 3 JUDGMENT -- 3 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) whether the will had been prepared before Mrs Kishen attended the solicitor's office. The experienced solicitor who prepared the will, Mr Hunter, no longer has the diary notes he made and, as so much about that day is contentious, this is unfortunate. Mr Hunter believes that his notes were with the file when it was delivered personally to the executor after new solicitors were retained to act in the administration of the estate. It is unnecessary to resolve most of the contentious issues. On any view of the evidence, the testatrix, when she executed her will, understood its provisions and their purport. Though it is not necessary to do so, it may be as well to record my impressions of several of the witnesses. Mr Hunter's recollection often seemed indistinct, and a deal of his testimony appeared to have been reconstruction, significantly influenced by his general practices. The attesting witnesses do not help much in resolving the more important of the contested factual issues. They were two of Mr Hunter's staff, who seem to recall that the will was not read over to the testatrix in their presence (contrary to an assertion to that effect in the attestation clause) and that, apart from Mr Hunter, only one person other than the testatrix, a male, was in Mr Hunter's room when they entered it. But they admit to vague memories, and recollections of usual office practices may now be more prominent than memories 4 JUDGMENT -- 4 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) of the actual events of the day. The evidence of Noel Chand must be treated with scepticism. He did not impress me as someone anxious to tell the truth. In particular, I do not accept that his grandmother gave him reasons for changing her will. I also reject his evidence that Mr Prasad was not at the solicitor's office when the will was executed. The executor told Mr Hunter quite the contrary in mid-1992 when he instructed Mr Hunter to prepare a statutory declaration for Mr Prasad's execution concerning the testatrix's understanding of the will. Joginder Chand, the principal beneficiary, though in Court when the plaintiff's case closed, did not testify. His unexplained absence from the witness-box in circumstances where it was to be expected, especially in view of the evidence of Mr Prasad (which was adduced before the close of the plaintiff's case) is troubling. I infer that he is concerned that the truth might not advance his interests. I accept the evidence of Mrs Prasher concerning the extent of the testatrix's capacity to comprehend spoken English. I prefer her evidence on this topic to that of Mr Kahn and others. Mrs Prasher seemed to be truthful as well as reliable. Mr Prasad's evidence is critical to the challenges to the validity of the will. Yet some evidence of Mr Prasad, then the executor's brother-in-law, who likes the defendant and bears a grudge against the principal beneficiary for 5 JUDGMENT -- 5 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) threatening him with deportation, is of doubtful reliability. Mr Prasad gave evidence by an affidavit sworn in August 1994 and by telephone from Fiji. Notwithstanding Mr Chand's denials, Mr Prasad was, I am satisfied, in attendance with the testatrix in the solicitor's office shortly before the will was signed. Neither of the attesting witnesses recalls his presence when they entered the room to find Mr Hunter with Mrs Kishen and Noel Chand. However, Mr Hunter remembers Mr Prasad accompanying Mrs Kishen that day, and documents brought into existence in 1992 on the instructions of Noel Chand acknowledge that Mr Prasad discussed the will in the solicitor's office not long before it was signed. In his affidavit Mr Prasad says that Mrs Kishen did not understand the English language; that Mrs Kishen wanted her two sons to share her estate equally; that Joginder Chand told Mr Hunter to amend the typed will in two respects (that moneys in the bank be left to Jagan Nath Kishen and concerning handwritten amendments made to paragraph 3(d)), and that "the will was amended" to accord with what Mr Prasad told Mr Hunter, acting on the instructions of Joginder Chand. His testimony however presents a different complexion in at least one respect. During cross-examination, he said that the amendments to the will - a reference, it seems, to the substitution of Noel Chand as executor and to the exclusion of Jagan Nath from the real estate - were what the testatrix wanted. There are several reasons for questioning Mr Prasad's evidence. First, contrary to his evidence, Mrs Kishen did 6 JUDGMENT -- 6 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) understand some spoken English, although the evidence of Mrs Prasher shows that her comprehension was less than Mr Kahn was disposed to claim. Secondly, Mr Prasad is partial as between the brothers. Thirdly, and more importantly, in 1992, when Mr Prasad was asked to execute a statutory declaration as to the circumstances surrounding the execution of the will, he did not suggest that Mrs Kishen had not approved of its contents before executing it. Mr Hunter had prepared the draft statutory declaration. In the letter which accompanied it, Mr Hunter informed Mr Prasad that "the purpose of the declaration is to verify that Mrs Kishen was fully aware as to the contents and conditions of the will". Mr Prasad was invited to sign it, "if correct". The draft declaration recorded that Mr Prasad recalled that "the will was read over" to the testatrix "and explained in my presence" and went on: "I would verify that Mrs Kishen was born in India and whilst being familiar with English to my understanding was not capable of reading English. After the will was read over to Mrs Kishen by the solicitor concerned, I inquired of her in her own native tongue whether she understood fully the contents of her last will and testament. She replied to me that she understood completely and that she wished her son Joginder Chand Kishen to receive the bulk of her estate and for only a nominal sum to be paid to her son Jagan Nath Kishen." Mr Prasad replied to the invitation about a fortnight later. His response did not suggest that the draft declaration was inaccurate. To the contrary, he said that he would sign a declaration in those terms, but only when Jagan Nath "agrees to the will and asks me to sign". He states "some" of his "reasons" for declining to execute the document. Materially, these are that the will "was made without the consent of" Jagan Nath Kishen and that "as stated in the will only a 7 JUDGMENT -- 7 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) nominal sum will go to" Jagan Nath. He also wrote that he did not "want to be blamed for any of the dispute between the two brothers". He concluded by saying that he would make the declaration in Australia in the presenqe of Mr Hunter and both brothers. In his mid-August 1994 affidavit Mr Prasad gives a very different reason for declining to sign the statutory declaration. He refused, he says, because the "will was not in accordance with the wishes of the late Mrs Kishen as was expressed by her in the Punjabi and Hindi language in (sic) me and to Joginder Kishen prior to the execution of the will by her" in the solicitor's office. Mr Prasad explained the failure to deny the truth of the contents of the draft declaration in evidence. He testified, in effect, that, when he was in Australia, Joginder Chand had threatened to procure his deportation as an illegal immigrant. Had such a threat been made, it could have accounted for his silence while he was in Australia. He had, however, been deported by the time he was asked to sign the statutory declaration. Mr Prasad's expressed willingness in mid-1992 to come to Australia to make a statutory declaration containing assertions which, if his evidence be true, he then knew to be false must, in the circumstances, afford substantial grqunds for reservations about his reliability. On the balance of probabilities this much should be accepted: that the will was read over to the testatrix by Mr Hunter before she signed it; that either as a result of her understanding of what Mr Hunter said as he read out the will or, which is more likely, through an interpretation by Noel 8 JUDGMENT -- 8 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) Chand or Mr Prasad, the testatrix clearly understood the effect of the dispositive and other provisions. Mr Hunter was adamant that Mrs Kishen understood the meaning of her will, and he seemed unlikely to have permitted execution unless sure that the testatrix had signified that she knew the effect of her will. Although much of the evidence is controversial, on analysis it all points to that conclusion. Mr Hunter's evidence is to that effect. So is Mr Prasad's. So too, if it matters, is Mr Chand's. And the handwritten additions, in particular those made in clause 3(d) to add the names of a child of Jagan Nath Kishen as a beneficiary, were made by Mr Hunter on the request of the testatrix made during the reading of the will. According to Mr Prasad, Mrs Kishen executed the will after an assurance by Joginder Chand that he would "hold the real property for himself and Jagan Nath Kishen". See also paragraph 11 of his affidavit where Mr Prasad deposes that Mrs Kishen said, apparently after the will was signed, that she did not believe that her eldest son would "give half of the property" to his brother as he had promised to do. A possible explanation for the new will is that Joginder Chand induced his mother to accept, hesitantly, that he would in some, perhaps unspecified, way look after the other son if the new will were made. There is no other credible explanation for the new will once the suggestions advanced by Mr Noel Chand are, as I think they must be, rejected as untruthful. (Mr Chand testified that his grandmother assigned what may broadly be described as dissatisfaction with her treatment by 9 JUDGMENT -- 9 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) relatives and a family squabble for her decision to exclude her younger son.) Mr Prasad's evidence is, put shortly, that the testatrix was unhappy with the idea that her two sons might not share equally in her only substantial asset. He maintains that she said as much in the solicitor's office not long before the will was signed but that he declined to convey her reservations to Mr Hunter at Joginder Chand's insistence. This seems unlikely in view of Mr Hunter's evidence and the specific request by the testatrix which resulted in the handwritten additions to clause 3(d). But it is, I suppose, possible that the testatrix entertained, and expressed to Mr Prasad after the will was signed, some misgivings about what she had done. Yet the unhappiness which, according to Mr Prasad, the testatrix conveyed to him is only explicable on the footing that she well understood that the defendant would only acquire a beneficial interest in the real estate were her elder son to convey it. If, as Mr Prasad says, the principal beneficiary prevailed upon his mother to devise the real estate to him by an assurance that he would see to it that the defendant got an interest in the property, it would not be surprising that she may have entertained reservations about the wisdom of the provision. After all, it left her younger son in her elder son's hands to that extent. But this does not detract from the essential conclusion that the testatrix understood the legal effect of the new will. This brings me to the undue influence case. 1 0 JUDGMENT -- 10 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) There is no adequate foundation for a conclusion that the volition of the testatrix was overborne. Mr Prasad's evidence, were it to be accepted, suggests that the new will is explained by the assurance Joginder Chand gave to his mother. It may be that the testatrix found it easier to accept such an assurance than to debate the issue with her son. But such an inducement, had it been made, would not, I think, have amounted to pressure overbearing volition. The doubtful reliability of the evidence on the issue makes it difficult to arrive at a satisfactory view of the impact upon the mind of Mrs Kishen of any representation which Joginder Chand may have made that he would care for Jagan Nath. As I have said, Mr Prasad's evidence cannot be accepted as entirely reliable, and it is a little difficult to accept that he was prevailed upon to withhold from Mr Hunter any reservations Mrs Kishen might have expressed about the wisdom of the new will. Moreover, Mr Hunter, although he could not understand things said in Punjabi, might have been expected to detect any substantial anxiety in the testatrix caused by the importuning of Joginder Chand, which, according to Mr Prasad, all took place in Mr Hunter's presence. Despite both my reluctance to act upon the testimony of Noel Chand and his father's absence from the witness-box, all considered the evidence does not disclose that the free will of the testatrix was overborne, however much the new will might be explained by her desire to gratify the wishes of her elder son and grandson: See Parfitt v. Lawless (1872) LR 2 P & D 462, 469-470; compare Winter v. Crichton (1991) 23 NSWLR 1 1 JUDGMENT -- 11 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) 116, 121-2; and Wingrove v. Wingrove (1885) 11 PD 81. Even if Mr Prasad's account of the persuasive interventions of Joginder Chand could be regarded as more probably than not true - which it should not - undue influence has not, in my opinion, been proved. There should be a solemn form grant. HIS HONOUR: As to costs, there was, in my opinion, a sufficient case for investigation that the defendant should have his costs out of the estate on a solicitor and client basis. This, however, should be subject to this qualification: that costs should be allowed for only one of the many defences and counterclaims delivered. HIS HONOUR: The Court pronounces for the force and validity of the last will and testament of Kartri Kishen, deceased, dated 12 January 1987, which is Exhibit A to the affidavit of Noel Nermal Chand filed on 23 November 1992, and decrees probate thereto in whole to Noel Nermal Chand, subject to the formal requirements of the Registr.ar. 12 JUDGMENT -- 12 of 13 -- 070296 D.3 Turn 4 jjh/sbh (Byrne J) HIS HONOUR: The order with respect to costs will be that the costs of the parties, together with the costs of and incidental to the lodging of the caveat by the defendant on 11 March 1994, be taxed as between solicitor and client and paid out of the estate, except that the defendant shall be allowed only in respect of his several defences and counterclaims the costs of only one of them. 1 3 JUDGMENT -- 13 of 13 --