IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

PROBATE ACTION NO. 21 OF 2002

IN THE ESTATE of RAM KUMARI
(father’s name Bali Hari) Deceased

Between:

RAM LAKHAN PRASAD
f/n Bhagauti Prasad
Plaintiff

and

SHOBNA DEVI PRASAD
f/n Bhagauti Prasad
Defendant

Mr. G. O’Driscoll for the Plaintiff
Mr. D. Sharma for the Defendant

Date of Judgment: 25 November 2005

JUDGMENT

On 1 October 2002 Ram Lakhan Prasad f/n Bhagauti Prasad (the ‘plaintiff’) issued a writ of summons against his sister Shobna Devi Prasad disputing the validity of the alleged Will dated 2 October 2000 of his deceased mother Ram Kumari f/n Bali Hari who died on 4 October 2000.

Background facts

Some of the background facts, in so far as they are relevant, as stated in the Statement of Claim are as hereunder:

That the Plaintiff was and is the son of Ram Kumari (father’s name Bali Hari), deceased testate and is named as an executor and trustee of the estate of the said Ram Kumari (father’s name Bali Hari) under a will dated the 11th day of December 1996.

The Defendant was and is the daughter of Ram Kumari (father’s name Bali Hari), deceased testate and is named as an executor and trustee of the said Ram Kumari (father’s name Bali Hari) under a will dated the 2nd day of October 2000.

That the will under which it is proposed by the Defendant that a grant of probate be given is one dated the 2nd day of October 2000 and it is against such grant that the Plaintiff lodged Caveat No. 17 of 2000.

That the true and last will and testament of the said deceased is the one dated the 11th day of December 1996 and which it is proposed to put before this Court after determination of the within action, should the same go in the Plaintiff’s favour.

That the said last will and testament dated the 2nd day of October 2000 was executed improperly in that at the time of execution only one witness was actually present, and the second purported witness signed later.

That at the time of the said deceased’s death she was domiciled in the Republic of Fiji.

That the said last will and testament dated the 11th day of December 1996 names the Plaintiff as one of the executors and trustees of the said deceased’s estate along with his wife, Saroj Prasad (daughter of Chandar Pal Sharma).

That it is alleged that the will dated the 2nd day of October 2000 is invalid due to its being improperly executed and also because at the time it was purportedly signed by the Plaintiff’s mother she was incapable of forming the necessary testamentary intention because of her declining health. The plaintiff’s mother passed away on the 4th October 2002, (should be 2000 – see death certificate only two days after the purported will was purportedly executed by her.

That the will dated 2nd day of October 2000 is not properly witnessed, as each of the two witnesses signed separately and not both at the time when the Plaintiff’s mother put her mark to the same.

That the said will dated the 2nd day of October 2000 was signed by the said deceased when she was sick and it is alleged that she had no idea of what it was she putting her mark to.

That the Plaintiff became aware of this situation and lodged in Caveat No. 17 of 2000 immediately after his mother’s death. 

Reliefs sought

The plaintiff seeks orders and declarations as follows:

(a)	that the Will of the deceased dated 2 October 2000 is not a valid last Will of the deceased and should be declared null, void and of no effect. 

(b)	that no grant of Probate be given to the defendant on the Will dated 2 October 2000.

(c)	that the plaintiff be granted Probate as executor and trustee based on the Will dated 12 December 1996.

The disputed Will of 2 October 2000

For ease of understanding the real dispute between the parties I give below the full text of the Will:

“THIS IS THE LAST WILL AND TESTAMENT of me RAM KUMARI (father’s name Bali Hari) of Lot 44 Yasi Yasi Road, Nadera, Nasinu near 
Suva in Fiji, widow.

1.	I am of sound mind but not in good health as I make this Will.

2.	I HEREBY REVOKE all former Wills and Testamentary Dispositions at any time heretofore made by me including my former will dated 11th December 1996 and DECLARE this to be my last Will and Testament.

3.	I APPOINT my daughter SHOBNA DEVI PRASAD (father’s name Bhagauti Prasad) of Lot 44 Yasi Yasi Road, Nadera, Nasinu near Suva in Fiji to be the sole Executrix and Trustee of this my Will.

4.	I DIRECT my Trustee to pay my just debts funeral and testamentary expenses.

5.	I GIVE DEVISE AND BEQUEATH all my real and personal estate and property of whatsoever kind and wheresoever situate of which I shall be entitled and or over which I shall have disposing power at my death to and unto my daughter namely SHOBNA DEVI PRASAD absolutely for her own benefit for looking after and caring for me during my years of ill health.

IN WITNESS WHEREOF I have hereunto subscribed my name this 2nd day of October, 2000 (Year Two Thousand).

Left Hand Thumb Print of Testatrix

SIGNED AND ACKNOWLEDGED by the said RAM KUMARI, the Testatrix as and for her last Will and Testament after the same had been read over and explained to her in the Hindustani language and she appeared perfectly to understand the same in the presence of us both being present at the same time who at her request in her sight and presence and in the sight and presence of each other have hereunto subscribed our names as attesting witnesses:

(Sgd) BHAWANI PRASAD			(Sgd) MICHAEL SHIU SHANKAR
INSPECTOR OF POLICE			JUSTICE OF THE PEACE
FIJI ”

The issues

The issues for Court’s determination are:

(1)	Which of the two Wills in dispute is the valid and subsisting Will?

(2)	Was the Will of 2 October 2000 properly witnessed as alleged by the defendant?

Evidence at the hearing

At the hearing of this action evidence for the plaintiff was given by Doctor Rati Ram, the plaintiff’s sisters Kushma Wati Singh, Shiu Mati and Vidya Wati. The plaintiff himself did not give evidence.

At the close of the plaintiff’s case evidence on behalf of the defendant was given by Inspector of Police Bhawani Prasad who was one of the two witnesses to the Will and the defendant Shobna Devi Prasad herself. The second witness to the Will died prior to the hearing of the case.

Plaintiff’s submission

The plaintiff challenged the October Will on two grounds, namely, firstly that it was improperly executed and secondly, that at the time of execution the deceased was incapable of forming the necessary testamentary intention due to her declining health.

The learned counsel for the plaintiff summarized the evidence of the various witnesses for the plaintiff and I considered them.

According to him the Doctor’s (PWI’s) evidence is that he was called to the residence of the deceased on 3 October 2000 i.e. a day after the said Will was signed and a day before the deceased’s death. Counsel interprets the Doctor’s evidence as saying that she was ‘old, senile and a very fussy lady’. He even suggests that the doctor’s evidence suggested that she was not fully capable of understanding the said Will.

The witness Kushma Wati Singh (PW2) testified, inter alia, that the deceased was in her opinion not in a fit condition to make any Will.

Then a witness, another sister Shiu Mati went to the extent of saying that on the day the Will was made she was present and she said that while standing at the door of the deceased’s room the latter was ‘not communicating’ and the defendant was pulling ‘her mother’s hand to some papers and put a thumb print there’. She even went to the extent of saying that the second witness to the Will (Michael Shiu Shankar) came at another time. She said that she never saw the two witnesses together at the time when the deceased signed the paper but she did see the police officer signing.

Defendant’s submission

The learned counsel for the defendant submitted that it is a valid Will and that there is no corroboration of the allegation that the Will was witnessed at different times.

The witness Inspector Bhawani Prasad testified that the witness Michael Shiu Shankar was present with him in the room when the testatrix affixed her left thumb mark to the Will.

He said that the testratrix was aware of the contents of the Will and had discussed the contents with them.

The Inspector even went on to state that Shobna Devi (the defendant) had been looking after her over the many years of her illness and that the deceased wanted her to have the house.

Counsel for the defendant deduces from the doctor’s evidence that she was ‘mentally competent’. He said that the doctor said that the usual complaints were about her family members neglecting her. He said that it was the defendant who looked after her mother.

Consideration of the issues

I have before me for my consideration helpful written submissions from both counsel.

I shall deal with the second issue first which is: 

Was the Will of 2 October 2000 properly witnessed as alleged by the defendant? 

The Court can only go by the evidence adduced before it. I have seen and heard the witnesses and have watched their demeanour. The clear impression that I get from the defendant’s sisters is that they teamed up to give evidence which would be unfavourable to the defendant mainly because it is the defendant who is the beneficiary under the Will.

This is a case of a brother suing a sister arising out of the Will executed by their mother on 2 October 2000 and she died two days later on 4 October 2000.

I have before me the evidence of Inspector of Police Bhawani Prasad. He was one of the two witnesses to the Will. The other was Michael Shiu Shankar a Justice of the Peace who unfortunately died by the time the case came up for hearing.

Inspector Prasad testified that he explained the contents of the Will to the deceased and she understood its contents before she affixed her left thumb mark to the Will in the presence of the other witness Michael Shiu Shankar.

As to the circumstances in which the Will was executed, there is sufficient evidence which I accept that the Inspector was present in the deceased’s room when the Will was executed.

Also it is alleged by the plaintiff’s witness that the two witnesses were not together at the time of the execution of the Will; I am convinced on the evidence that they were there. The evidence of a witness indicates that when she saw the Inspector in the room when he got the deceased to execute the Will, she did not say that the other witness was not there at all. The picture that she painted was that he came later.

After analyzing all the evidence in this connection I regard the Inspector as a witness of truth when he said that the two of them were present. I cannot see any reason why a senior member of the Police Force and a Senior Prosecutor to tell lies. On the other hand the plaintiff’s sisters who do not get on well with the defendant have every reason to tailor their evidence to suit them as they do not benefit under the Will but the defendant does.

I find as fact upon on civil standard of proof that the October Will was properly executed in the presence of the two witnesses after the contents were read over and explained to the testatrix before she put her left thumb mark to the Will. This was in accordance with the provisions of s.6 of the Wills Act Cap.9 which provides:

“6.	Subject to the provisions of Part V, a will is not valid unless it is in writing and executed in the following manner:-

(a)	 it is signed by the testator or by some person in his
presence and by his 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 as his will;

(b)	such signature is made or acknowledged by the testator in the presence of at least two witnesses present at the same time; and 

(c)	the witnesses attest and subscribe the will in the presence of the testator, but no form of attestation is necessary. 

Dr. Rati Ram’s (PW1’s) evidence who was a common witness is most important to show the deceased’s condition and capacity to make a Will.

The Doctor has been the deceased’s doctor since 1988. He said that she was unhappy with her children as she felt that they did not care for her but it was the defendant (daughter) who looked after her during her ill-health for many years.

The doctor was called to the deceased’s bedside on 3 October 2000, that is, a day after the Will was executed. Giving the history of the patient he said that she was a known case of hypertension, heart disease and arthritis and had ‘many episodes of heart attack’.

He said that when he saw her on 3 October she evidently had a stroke and was ‘not communicating at all… she was in coma’. He told the Court that on asking the daughters who were there they said that prior to this ‘she was bedridden but she was able to move, she was able to talk, she was able to feed but on morning of 3rd October, 2000 she had stopped responding to them’.

When asked what ‘state’ she was in before she was taken to hospital a month prior to this, the doctor said that she was ‘communicative, she had chest pain’. In answer to a further question he said that the ‘stroke’ came on suddenly; she was about 76 years old. When he was next called on 4 October she was dead and after police clearance he issued the Death Certificate which showed the reason for death as ‘acute respiratory arrest’.

The doctor told the Court that when he saw her about a month before she died, her mental condition was such that she was able to understand things, she knew what she was doing and she behaved normally and was quite normal.

When the doctor said that she was a ‘fussy lady’ he explained what he meant, that is, she was not happy with her children and was complaining about them not looking after her and that is usually the case with old people.

As I have said before I find as a fact that the contents of the Will were read over and explained to her and she appeared to understand it as stated by the witness Police Inspector Prasad. I have no reason to doubt his testimony in this regard and I accept it.

I accept the evidence that the deceased gave proper instructions to the solicitors to prepare her Will.

I am satisfied that proper procedure was followed before and at the time of the execution of the October Will which was the last Will and Testament of the deceased and I do so find.

Conclusion

After analyzing all the evidence I find that the deceased was capable of making the Will and was capable of understanding and she knew what she was doing.

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.” (emphasis added)

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 she was doing when she instructed the Solicitors to prepare her Will so that she 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 she 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) P 151).

Therefore, the answer to the second issue is in the affirmative in that the Will of 2 October 2000 was properly witnessed.

Having answered the second issue as above it follows and it is the answer to the first issue that the said October Will is the valid and subsisting Will and I do so find that it is the Last Will and Testament of the deceased and Probate whereof should be granted to the defendant who is the sole executrix and trustee under the said Will of 2 October 2000 and I do so order.

In the outcome, the plaintiff’s action is dismissed with costs in the sum of $700.00 to be paid within 28 days.

D. Pathik
Judge

At Suva
25 November 2005