In the Estate of Shailendra Singh [2021] FJHC 425; HPP82.2020 (22 October 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

PROBATE ACTION NO.: HPP 82 of 2020

IN THE MATTER of an application for leave to prove the will or codicil as contained in a copy and for the issuance of Grant of Probate thereof under the provisions of Section 3 of the Succession, Probate & Administration Act 1970, Section 18 (1) of the High Court Act 1875, Order 1, Rule 11 of the High Court Rules 1988 and Rule 54 of the Non-Contentious Probate Rules 1987 in Her Majesty’s High Court of Justice in England

AND

IN THE MATTER of THE ESTATE of SHAILENDRA SINGH late of Lot 14, Cargill Street, Davuilevu, Nausori, Fiji, Unemployed, Deceased, Testate

AND

IN THE MATTER of an application by RAJESHNI DEVI as the Sole Executrix and Trustee under the instrument proposed to be construed as deposing the testamentary intentions of SHAILENDRA SINGH late of Lot 14, Cargill Street, Davuilevu, Nausori, Fiji, Unemployed, Deceased, Testate.

APPEARANCES/REPRESENTATION
APPLICANT : Ms. S. Prakash [Legal Aid Commission]

RESPONDENT : Ex-Parte

RULING BY : Acting Master Ms Vandhana Lal

DELIVERED ON : 22 October 2021

JUDGMENT

1. The Applicant seeks leave to have copy Will of Shailendra Narayan dated March 2000 proved and take out a grant of probate for the estate.
   
2. In her application the name of the deceased is typed as Shailendra Singh and not Narayan.
   

However, the marriage certificate; the children’s birth certificate; the purported Will and search letter contains the name of the deceased as Shailendra Singh and not Shailendra Narayan.

3. The Applicant states she is the lawful spouse of Shailendra Narayan and they had one issue of the marriage.
   

Her husband passed away on 18^th March, 2021.

Sometimes in 2009 and 201, he had given her a document stating that that was his Will. The said document was dated as “March 2010” only and she was named as the sole executrix and trustee. Both she and her child were named as beneficiaries.

The Will is said to be witnessed by two witnesses and has the signature of the deceased which she recognises. The deceased would sign with his left hand due to a stroke he suffered to his right side of the body.

The witnesses named are: Kandhaiya Lal of 7 miles, Nasinu Taxi driver and Lal of 9 miles Nasinu, Salesman.

The Applicant states she has no knowledge of the identity of these witnesses nor did the deceased informed her about them. The addresses provided on the Will are too vague for her to locate them.

The Will bears three signatures in ink pen however has two stamps denoting “copy” on the first page. It also had fold marks, discoloration and marks due to handling and storage of the same.

The Applicant has conducted a search for the original Will with the High Court Civil Registry and the Registrar of Titles Office Suva. The said searches were futile.

She has no knowledge of the original Will and undertake to hand over the same once it is located.

4. Tristram and Coote’s Probate Practice 29^th edition Winegarten, Costa and Synak: Butterworth 2002 Ed on paragraph 3.25 states:

“However unusual or irregular in form such a document may be, if it fulfils the foregoing condition (contains a disposition of property or appoints an executor or executors even though executor is dead or renounces probate) it may be entitled to proof provided that it is established that it was intended to be testamentary”.

5. A writing executed in the same manner as a will, but merely revoking a former testamentary disposition is not entitled to probate – Re Fraser’s Goods (1869) LR 2 P & D 40; Toomer v. Sobinska [1907] UKLawRpPro 2; [1907] P 106.
   
6. An instrument merely appointing a guardian has been also held not to be entitled to probate – Re Norton’s Goods (1864) 3 SW & Tr 422.
   
7. Pursuant to Section 6 of the Wills Act:

“A Will is not valid unless it is in writing and executed in the following manner -

1. It is signed by the testator or by some person in his or her presence and by his or her direction. In such place on the document as to be apparent on the face of the will that the testator intended by such signature to give effect to the writing on his or her will;
2. Such signature is made or acknowledged by testator in the presence of at least 2 witnesses present at the same time; and

100. The witnesses attest and subscribe the will in the presence of the testator, but no form of attestation is necessary”.

8. Pursuant to section 6A of the Wills Act:

“(1) A document purporting to embody the testamentary intention of a deceased person, even though it has not been executed in accordance with the formal requirements under section 6, constitutes a will of the deceased person if the Court is satisfied that the deceased person intended the document to constitute his or her will.

(2) The Court may, in forming its view, have regard in addition to the document, to any other evidence relating to the manner of execution or testamentary intention of the deceased person, including evidence, whether admissible before or after the commencement of this section, of statements made by the deceased person.

(3) A party that seals a declaration under this section has the onus of proof.

9. In Kumar and Others v. Ramlu a Lautoka High Court Civil Action HPP 32 of 2014 Tuilevuka J. whilst citing Bowman v. Hodgson (1867) 1 L.R.P and D 362 stated:

“21. An executor who desires to prove that a Will had been duly executed must, a common law, call one of the attesting witnesses, if any was available”.

10. In Parnima Devi v. Kumar Khagendra Narayan Deo [1962] 3 SCR 195, the Supreme Court of India held:

“The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court”.

11. The purported document has a signature of the testator which the Applicant identified as that of the deceased.
    

She has informed the witnesses are not known to her and with the address she cannot locate them.

12. I do not find there to be any suspicious circumstances surrounding the execution of the Will.
    

Final Orders

13. Accordingly following final orders are made;
    • (i) Copy of the Will dated as March 2000 of the deceased is to be admitted for proof for a grant for the Estate of Shailendra Narayan;
      
    • (ii) Applicant is granted leaved to lodge her requisite document with the Probate Registry for a grant of Probate;
      
    • (iii) Registry to make a copy of the Will and place copy in court file. The document tendered in Court to be released to the Applicant for use with her application for grant.
      

......................................
Vandhana Lal [Ms]

Acting Master

At Suva.

21 October 2021

TO:

1. Suva High Court Probate Action HPP 82 of 2020;
2. The Legal Aid Commission, Solicitors for the Applicant.