Chand v Wati [2005] FJHC 504; HBC0116.2001L (2 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL CASE NO. HBC0116 OF 2001L

BETWEEN:

DHIVEN VIKASH CHAND
s/o Kirpa Ram
Plaintiff

AND:

RAJ WATI
d/o Prabhudin
Defendant

Counsel: Ms. V. Patel for the plaintiff
Dr. M. Sahu Khan for the defendant

Date of Hearing: 22 August 2005
Date of Judgment: 2 September 2005

JUDGMENT

By Writ of Summons filed on the 10^th April 2001, the plaintiff seeks a grant probate of the Will of his grandmother, Ram Raji dated 17^th June 1994. The defendant, Raj Wati, being the widow of the deceased’s son, Lekh Ram, opposes the application and has entered Caveat No. HPC0038 of 1994 against the grant probate.

Whilst the defendant had filed a counterclaim, at the commencement of the hearing Counsel for the Defendant indicated that the counterclaim was not being pursued and it is accordingly dismissed.

Background

Ram Raji on the 17^th September 1993 made a Will wherein she appointed her son, Lekh Ram, executor and trustee and the sole beneficiary of her estate. In that Will, she made specific mention that she had provided for her daughters, Tara Wati, Suruj Kumari, Gyan Wati and Ram Sati during her life time. Lekh Ram died in December 1993, leaving his widow, Raj Wati. The testatrix, Ram Raji, on the 17^th June 1994 made a further Will in which she revoked all former Wills and appointed her grandson (plaintiff), Dhiren Vikash Chand, as the sole executor and trustee of her estate and left her estate to him. She died on the 12^th September 1994.

Raj Wati has lodged a Caveat No. HPC0038 of 1994 against the grant of probate of the Will dated 17^th June 1994.

The Issue

It is agreed that the issue for determination by the court is whether the Will of the testatrix dated 17^th June 1994 was properly and validly executed and whether the testatrix was mentally capable of properly instructing the preparation of the Will and that she knew and understood the contents of the Will at the time of its execution and further whether there was undue influence or whether the plaintiff manipulated the deceased at that time.

The Evidence

The Will of the 17^th June 1994 was witnessed by Abhimanyu and Satendra Prasad. Abhimany gave evidence that he was the gang sardar of the sugarcane harvesting gang in which the testatrix’s cane farm was located. His evidence also was that Satendra Prasad whilst being a school teacher at Natabua High School was a cane farmer and the president of the gang.

Abhimanyu says that in or about June 1994 whilst cane was being harvested near the testatrix’s residence, she approached him and asked if he would organize for a new Will to be prepared for her. He wrote down her instructions and took them to the Cane Growers Council in Lautoka, who at that time would prepare a Will for cane growers without charge. He says on the 17^th June 1994, he delivered the instructions to the Cane Growers Council in the morning and then he collected the Will at about 2.00pm and he then arranged with Satendra Prasad for him to be present to facilitate the execution of the Will. He says that Satendra Prasad indicated that he would be free from school at about 4.00pm and that he and Satendra Prasad met at the testatrix’s house at about that time and the Will was executed.

He says that prior to the execution of the Will, he read the will to the testatrix who appeared to him to understand the Will and that similarly, it was read to her by Satendra Prasad. He confirms that the Will was executed in accordance with requirements of section 6 of the Wills Act (Cap. 59).

Prior to and about the time of obtaining instructions for the Will, Abhimanyu said he had regular contact with the testatrix as gang sardar and that she was operating the cane farm and giving all necessary instructions to various authorities. He says that whilst she was not very mobile due to problems with her legs, she was mentally alert at the time of the instructions for and execution of the Will.

Satendra Prasad did not give evidence as Abhimanyu informed the court that he had migrated some 4 years back.

The plaintiff in his evidence indicated that there were two houses in the compound on the property, one house was occupied by his mother and the other house was occupied by he and his grandmother. He says at that time he was working as a cane cutter and was around the house a lot. He says that his grandmother cared for herself and operated the property by engaging tractors when required and other labourers. He says that prior to the death of Lekh Ram, the grandmother had a good relationship with him and saw his wife, the defendant, but after the death of Lekh Ram, the relationship deteriorated significantly with the defendant and there was indeed no contact. He also says that the property on which the defendant and Lekh Ram resides was a property some distance away which was purchased by his grandfather for Lekh Ram.

There was no suggestion that the plaintiff had anything whatever to do with the drafting or execution of the Will of the 17^th June 1994. Nor is there evidence before the court of any relationship between Abhimanyu and the plaintiff.

The plaintiff further gives evidence that his grandmother was indeed alert, albeit a little immobile due to her knees swelling up, right up to the time of her death. He says that she died at Lautoka Hospital, and that the funeral left from the house on the property for the Lovu cemetery.

The only other evidence on behalf of the plaintiff was the production by the Probate Registry of the original Will of the 17^th June 1994.

The defendant whilst giving evidence indicated that she had a very close relationship with the testatrix. That the testatrix in fact lived with her and the testatrix’s daughter, Tara Wati, prior to her death. She further gave evidence that the testatrix was not of sound mind at that time as she undressed herself at inopportune times and threw her food around. There was no specific evidence

as to the time of this behaviour nor any evidence relating it to the time of the execution of the Will in June 1994. She says that the testatrix’s property was in fact managed by her husband, Lekh Ram, whilst he was alive. This was of course denied by the plaintiff.

She says that she attended the deceased in hospital prior to her death and that she was the person who attended upon the deceased immediately following her death with others. She also says that whilst preparing the deceased she noted that her hands were indeed clean.

The one time tenant of a room attached to the house of Lekh Ram and Raj Wati, Subashni Devi appeared a most unreliable witness. She was able to give almost verbatim evidence of her observations of the testatrix, in her being naked at times and throwing her food but was unable to put any time frame on her observations. She was also unable to say whether she was residing in the room at the time of Lekh Ram’s death or whether she was residing in the room at the time of the death of the deceased. She said she resided in the room for about 2 years. I find her evidence to be most unsatisfactory and unacceptable.

The brother of the defendant also gave evidence of his observations of the testatrix but again, was very vague with time frames relative to the execution of the Will and the death of the deceased and there is little in his evidence that is of assistance to the defendant’s case.

The Law

The parties acknowledged that the relevant time for the determination of the testatrix mental capacity is the time at which the instructions are given and the Will is actually executed. Whilst the plaintiff has the burden of proving the Will,

it is the defendant who bears the burden of proving the mental incapacity of the testatrix.

In Harpreet Kaur v Azard Kaur – Civil Action No. 98 of 1995 Labasa, Pathik J. when considering similar issues relied on Burrows v Burrows [1827] 1 Hagg. ECC 524 “now sanity must be presumed till the contrary, is shown” further from that same authority -

“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.”

His Lordship also considered the requirements surrounding the execution of the Will and said at page 13:

“As a general rule, in the absence of suspicious circumstances the fact that a Will has been read, 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 held that there is no inflexible rule on this aspect (Tyrrell v Painton [1896] UKLawRpPro 15; (1896) P 151).”

Similar findings were made by Madraiwiwi J. in Binay Prasad v Makardu – HBC0201 of 1995L when dealing with allegations of unsoundness of mind, His Lordship said:

“However in order to establish that there must be some circumstance or conduct that the defendant can cite for the court’s consideration Low v Gutherie [1909] UKLawRpAC 13; (1909) AC 278. A bare allegation on its own, which is to the effect that the testator was ill and therefore unduly influenced or not of sound mind is unhelpful.”

Conclusion

On the evidence placed before the court, I find the evidence of the witness to the Will, Abhimanyu and of the plaintiff to be preferred to the evidence of the defendant, Subashni Devi and the brother of the defendant. In the circumstances therefore, I am of the opinion that the instructions for the Will were given and the Will was executed at the time when the testatrix was of sound mind and that she was not unduly influenced by the plaintiff or any other person. I am satisfied that the Will dated 17^th June 1994 has been proved in solemn form and accordingly, the Orders of the Court will be:

1. Probate at the Will of Ram Raji dated 17^th June 1994 in solemn form be granted to the plaintiff.
   

2. I order that Caveat No. HPC 38 of 1994 be removed forthwith.

3. The defendant to pay the plaintiff’s costs as agreed or taxed.

John Connors
JUDGE

At Lautoka
2 September 2005