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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. 98 OF 1995
Between:
HARPREET KAUR aka PRATAP KAUR
d/o Ami Chand
Plaintiff
and
AZARD KAUR
d/o Ami Chand
Defendant
Mr. H. Robinson for the Plaintiff
Mr. M. Sadiq for the Defendant
JUDGMENT
On 20 February 1995 Harpreet Kaur also known as Pratap Kaur daughter of Ami Chand of Nasea, Labasa (the “plaintiff) issued a writ of summons through her then solicitors against her sister Azard Kaur d/o Ami Chand of Nasea, Labasa, School Teacher disputing the ‘validity of the alleged Will’of her deceased father dated 6 June 1990. Her father died at Labasa on 22 July 1990.
Background facts
Some of the background facts are as follows as stated in the Statement of claim.
That AMI CHAND son of Wazira Ram also known as Wajira Ram Late of Nasea, Labasa, Retired died at Labasa Hospital on 22 July, 1990.
That he left behind him surviving his widow Raj Kaur daughter of Gopi Singh and two daughters namely Azard Kaur and Harpreet Kaur also known as Pratap Kaur.
That the Defendant is the lawful daughter of the deceased and also one of the persons entitled to a share in the deceased’s estate.
That the Defendant is also the sole executrix and trustee in the estate of the deceased by virtue of Probate Number 26023 granted by the High Court of Fiji on the 17th day of December, 1990 on the basis of an alleged Last Will and Testament dated the 6th day of June, 1990.
Grounds of dispute
The grounds on which the said Will is disputed are as stated below (as in the Statement of Claim).
That the alleged Last Will and Testament is not a valid will in that firstly the deceased did not know and approve of its contents and secondly that at the time of the execution of the will the testator was not of sound mind, memory and understanding.
That the nature of the case on which the Plaintiff intends to rely on is as follows:-
That the will is in variance with the known affections of the testator and his previous verbal declaration that his property was for his widow and two daughters equally.
That the deceased at the time of the execution of the alleged will dated the 6th day of June, 1990 was 84 years old and sickly. He could not get up and walk without assistance or eat by himself and could barely talk and whatever he said was difficult to comprehend and at times incomprehensible.
His memory was so defective and untrustworthy that he could not recall recent events. He was at the time of the execution of the alleged will in such a condition of mind and memory as to be unable to understand the nature of the act and its affects, the extent of the property which he was disposing or to comprehend and appreciate the claims to which he ought to give effect.
The Will
The contents of the Will are as follows:
THIS IS THE LAST WILL AND TESTAMENT of me AMI CHAND son of Wazira Ram of Nasea, Labasa, Fiji, Retired.
IN WITNESS whereof I have hereunto set my hand this 6th day of June, One Thousand Nine Hundred and Ninety (1990).
SIGNED by the said AMI CHAND for his last )
Will and testament by affixing his left thumb mark )
in the presence of us both being present at the same )
time who at his request in his presence and sight ) Left thumb mark
and in the presence and sight of each other have ) of AMI CHAND
hereunto subscribed our names as attesting )
witnesses after the contents hereof had first been )
read over, explained and interpreted to him in the )
Hindustani language and he appeared fully to )
understand the meaning and effect thereof. )
(Sgd) K. Prasad (Sgd) K. Kumari
Solicitor’s Clerk, Labasa Solicitor’s Clerk Labasa.
Evidence at the hearing
At the hearing of this action the plaintiff gave evidence followed by evidence of Mr. Ami Chand Kohli, a solicitor.
At the close of the plaintiff’s case, the defendant testified. She called Krishna Kumari d/o Bissesar, formerly a clerk to Mr. Sadiq and now Clerk to Kohli & Singh to testify on her behalf.
Plaintiff’s evidence
The plaintiff was 44 years old at the time of the hearing. The defendant who is her sister is ten years older than her.
They both lived with their parents. The defendant went to Nasinu Training College, Nasinu, Suva to become a teacher while the plaintiff attended St. Mary’s Primary School, Labasa. She said that she was quite attached to her parents and her father gave her all that she needed. There were only two of them in the family. The defendant had married when the plaintiff who was 14 years old then was in Form IV at school. The defendant was teaching.
She testified that after 13 April 1990 her father at the age of 83 years became sick. She was 32 years old then and was not working and stayed home. Both her mother and plaintiff looked after the father. He had to be fed and had to be ‘held’ when he wanted to walk. He became ‘childish’ and among other things ‘threw food’. After 3 or 4 weeks he was taken to hospital. Her mother brought him from hospital after a week.
The father told the plaintiff that the house will remain in the family and that with the $30,000.00 he has in the Bank he will take her to India and spend part of it on her education. She said that her father looked after both her and her sister.
Father was taken to hospital after 3 or 4 weeks as his condition was getting worse.
The plaintiff said that she did not know that a Will was made until she was given notice to vacate the house by the defendant. The notice is dated 25 August 1994 (exhibit P2).
She said that it was in January 1991 that she got married to an ex prisoner at 9 miles, Nasinu at Sikh Temple, Labasa. It was arranged by her sister’s husband. Marriage lasted about 2½ months and she obtained divorce for non-consummation of marriage and she returned to the mother at the family house.
She was shocked to receive the letter to vacate. The sum of $10,000.00 was given to her from the father’s $30,000.00 in the Bank. The plaintiff said that she paid $300.00 to her then counsel for the divorce case and the balance $7000 she returned to defendant as the latter said that she had spent that much on plaintiff’s marriage.
The plaintiff said that her father would not have made that Will. She wants her share of the property.
Mr. Kohli’s evidence (plaintiff’s witness)
In gist Mr. Kohli’s evidence is that he had known the deceased since 1966. He knew the family very well and paid visits to their home. Ami Chand was also a regular visitor to his office. The deceased used to seek his advice in making a Will. At one time the deceased said that he would like to see that his wife and two children had equal shares so that they do not realize that he did not care for them.
He was brought to his office in May 1990 by his daughter and his son-in-law. Mr. Kohli gave a detailed account of what took place on that day. Mr. Kohli’s mother also worked in the office that time and the deceased’s family and the deceased got on very well with her. Mr. Kohli’s mother told Mr. Kohli that these people have come to make a Will.
Mr. Kohli said that the deceased was “very frail and could hardly see and recollect ...... he did not recognize me ... he did not respond to the greeting... he did not say why he wanted to see me. Son-in-law said Ami Chand has come here to have a Will made.”
After some discussion Dr. Jaspal Singh (now deceased) was called and after examining him he said that ‘he doesn’t understand anything, he cannot make
a Will’. This confirmed what Mr. Kohli thought. He refused to make a Will and told them. Mr. Kohli once visited him after he was discharged
from hospital but he did not speak to him.
Defendant’s evidence
The defendant said that it was on 6 June 1990 that she brought her father from hospital after his discharge from there. The plaintiff was also home that day.
The defendant said that that day her father said that he wanted to make a Will and asked to be taken to a lawyer’s office. She took her to Mr. Sadiq’s office. Mr. Sadiq’s clerk Mr. Kalika Prasad and Mrs. Krishna Kumari, the typist were in the office. The deceased told Kalika that he wanted to make a Will and so Kalika took him inside his office while the defendant waited outside. After a while the deceased came out with a ‘brown envelope in his hand’. She took him home and later after his death she took out Probate of his Will.
The defendant said that apart from the expenses she incurred towards the plaintiff’s marriage including buying jewellery etc she gave her sister “$10,000.00 not to be refunded to me – complete gift to her”.
The defendant said that after her father’s discharge from hospital “he was well, he fed himself, wore clothes, going to toilet did himself”.
She said that the land is in her name as in 1994 it was given to her after the old lease had expired. The defendant said that she paid “$2000 and paid rates and rent $500, I’ve been paying all that”.
Evidence of Krishna Kumari (defendant’s witness)
The witness Krishna Kumari was at the time when the Will was made typist/clerk to Mr. Sadiq but is now with Mr. A. Kohli.
She said that Kalika Prasad was also there and he asked Ami Chand (the deceased) “yes boss, anything I can help?” He then gave instruction for a Will for him.
She typed the Will according to the instructions. The Will was read by Kalika to Ami Chand in her presence and he understood same and affixed his left thumb mark to it. Then the two of them witnessed the execution of the Will. The copy Will that was prepared has been tendered as an exhibit (exhibit D2) and attached to the copy Probate.
Issues for Court’s determination
There are three issues for Court’s determination, namely:
(a) Is the Will dated 6 June 1990 a valid will?
(b) Did the testator Ami Chand know and approve of the contents of the Will? and
(c) Was the testator at the time of execution of the Will of sound mind and understanding?
Consideration of the issues
I have stated hereabove in considerable detail the facts of the case and the circumstances under which the deceased’s Will was made and executed.
As already stated Probate of the Will was granted by the High Court of Fiji on 17 December 1990 and it was not until 20 February 1995 that the plaintiff instituted this action.
The reason the plaintiff gave for not instituting the proceedings earlier was that it was not until the Notice dated 23 August 1994 (exhibit P2) was served on her did she know what had actually happened as far as her alleged rights in the estate was concerned.
I shall deal with issue No. (c) first, followed by issue No. (a) and then issue No. (b).
As for third issue (No. ‘c’), namely, whether the deceased at the time of execution of the Will was of sound mind and understanding!, I can only go by the evidence adduced before me.
No doubt the deceased was very old when he executed the Will. At one time in May 1990 he was quite sick and was in Hospital. He came home after his discharge. The witness Mr. Kohli outlined to Court in considerable detail how the deceased came to his office to make a Will but for the reasons stated hereabove no Will was made then.
Between the time of his discharge and when he made his said Will on 6 June 1990 there is no evidence whatsoever of his condition particularly the state of his health except that he went to Mr. Sadiq’s office unaided to make the Will. According to witness Krishna Kumari the Will was prepared on his instructions. The Will was read to him by clerk Kalika Prasad in her presence and he understood its contents. He executed the Will by putting his left thumb mark and witnessed by both Kalika Prasad and Krishna Kumari.
After analyzing the evidence of the plaintiff and her witness Mr. Kohli and the evidence of the defendant and the two witnesses to the Will, I am convinced that the deceased was capable of making a Will. I have no reason to doubt Krishna Kumari’s evidence.
I am satisfied that a proper procedure was followed before and at the time of the execution of the Will.
I shall now deal with the first issue, (No. ‘a’) namely, is the Will dated 6 June 1990 a valid one?
Having found on the third issue that the deceased (testator) was capable of making the Will and there being no contrary evidence that he was not of sound mind or did not understand the contents of the document he was signing as explained to him by Kalika Prasad in the presence of Krishna Kumari, I have no hesitation in holding that it was his Will.
There was full compliance by Mr. Sadiq’s office of the provisions of s.6 of the Will Act Cap. 9 which provides:
(c) the witnesses attest and subscribe the will in the presence of the testator, but no form of attestation is necessary.
I shall now consider second issue (No. ‘b’), namely, whether the deceased knew and approved of the contents of the Will?
When dealing with issue No. (c), I have already covered this aspect. On the evidence before me of Krishna Kumari which I accept the answer is in the affirmative and I have no doubt whatsoever in this regard.
I agree with Mr. Sadiq’s submission that at the time of the execution of the Will, apart from the testator, Kalika Prasad and Krishna Kumari there was no one else present, hence no question of ‘undue pressure’ being imposed arose. The testator was given a copy of the Will and if he was not satisfied with anything in it or on anything else he could have had it read out to him by anyone at all at any time.
I am sure the plaintiff and her mother would have known where the testator had been when he was absent from home at the time when he went to Mr. Sadiq’s office. The plaintiff is completely silent on this aspect except to say that she knew nothing about the Will until a long time afterwards in August 1994 when she was asked by the defendant to vacate the house. This I find hard to accept.
Conclusion
To conclude, on the evidence before me, it is clear that on the day he made the Will the testator knew what he was doing, for in the absence of any evidence to the contrary I find that the plaintiff was of sound mind and understanding; ‘now sanity must be presumed till the contrary is shown’ (Burrows, infra). One of the two witnesses to the Will testified that the testator understood the contents of the Will after it was read out to him by Kalika Prasad. She considered him to be fully capable of making and executing the Will. Kalika Prasad no longer lives in Labasa.
It was held in Burrows v Burrows 1827 1 Hagg. ECC 524 as follows:
Instructions for a will containing the fixed and final intentions of the deceased are valid if the formal execution is prevented by death: and, if there is no evidence of insanity at the time of giving the instructions, the commission of suicide, three days afterwards, will not invalidate the paper by raising an inference of previous derangement.
In this case the fact that, as according to Mr. Kohli’s evidence, after the doctor had seen the testator, the deceased was not in a proper state of mind at that time does not mean that he could not have been normal by the time he made this Will. There is no evidence of a medical nature closer to the time when he made the Will in regard to the state of his mind or his understanding of what he was intending to do.
The deceased made provision in the Will for the plaintiff. Subsequently, after obtaining Probate the defendant administered the estate according to the Will and the plaintiff accepted the sum of money that was given to her from the Estate and never questioned the defendant in regard to this or in relation to her share in the Estate. Would she have kept quiet for so long? Did it not dawn on her to inquire as to who are the beneficiaries in the Estate? It is hard to believe that she left this matter for over four and a half years before issuing the writ of summons herein. The plaintiff is well educated having been to the University of the South Pacific for a short while and having been a school teacher temporarily herself like the defendant.
The defendant has put forward the document (the Will) as being the true and last Will of the deceased as it was her duty to do so, has established that the testator knew and approved of its contents at the time when he executed it.
Although the plaintiff disputes the Will on the grounds stated earlier in this judgment, she has not produced any evidence as to the state of the testator’s health or the state of his mind at the time of the execution of the Will. Mr. Kohli’s evidence is not strong enough nor proximate enough to the time of the execution. His evidence does not assist the plaintiff to prove her case.
I do not see any suspicious circumstances which excite the vigilance and suspicion of the court to require a very high degree of proof to dispel the belief that the testator did not have the testamentary capacity, was of unsound mind or did not understand what he was doing when he instructed Mr. Sadiq’s office to prepare his Will so that he can execute it. As a general rule, in the absence of suspicious circumstances the fact that a Will has been ready, or read over to, the testator affords a strong presumption that he understood and approved the content (Guardhouse v Blackburn L.R 1 P & D/109, Cleare v Cleare L.R. 1 P & D 655) but it has been that there is no inflexible rule on this aspect (Tyrrell v Painton [1896] UKLawRpPro 15; (1896) P 151).
In the outcome, the plaintiff’s claim is dismissed. In the circumstances of this case I make no order as to costs.
D. Pathik
Judge
At Labasa
27 April 2004
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URL: http://www.paclii.org/fj/cases/FJHC/2004/347.html