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Chandra v Chandra [2012] FJHC 1080; HPP41119.2003 (14 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

ACTION: HPP 41119 OF 2003

BETWEEN:

VIKASH CHANDRA
Plaintiff

AND:

DINESH CHANDRA
Defendant

Mr S Chandra for the Plaintiff
Defendant in Person

JUDGMENT

In an amended Statement of Claim filed on 29 March 2006 the Plaintiff sought relief from this Court in the form of a pronouncement against the will purported to have been executed on 6 January 2003 by Parvatiama Chandra deceased (the testatrix).

The Plaintiff pleaded that he was one of the executors and trustees of the will dated 6 December 2002 being the last will and testament of the deceased.

The Plaintiff was the son of the deceased and the Defendant was the lawful husband of the deceased. The deceased died on 15 January 2003. The will propounded by the Defendant was dated just nine days before the testatrix died.

The Defendant's Defence did not dispute the validity of the Will dated 6 December 2002 (the former will). His Defence pleaded simply that it was not the last will and testament of the deceased. If the Court pronounces for the will propounded by the Defendant then it will be the last will and testament of the testatrix thereby revoking all previous wills. On the other hand if the Court pronounces against the will propounded by the Defendant, then the question arises whether the will dated 6 December 2002 should be granted probate.

In this action the Plaintiff has challenged the will dated 6 January 2006 (the later will) propounded by the Defendant on the grounds that the deceased's signature was forged, that the will was manufactured after the death of the testatrix and that the will was not executed in accordance with the provisions of the Wills Act Cap 59.

In respect of the allegation relating to non-compliance with the Wills Act, no particulars were provided in the Statement of Claim. The case proceeded and evidence adduced on the basis that the principal issue before the Court was whether the testatrix had executed the later will.

In this case the two wills are incapable of standing together. In the later will propounded by the Defendant the two essential clauses state:

"1 _ _ _

2 I hereby appoint my husband Dinesh Chandra (f/n Ram Narayan) of 16 Kikau Street Samabula Suva, Consultant to be the sole trustee and executor (hereinafter referred to as "the trustee") of this my will.

3 I give devise and bequeath all my real and personal property whatsoever and wheresoever situate which I may be possessed of at the time of my death to and unto my trustee for life thereafter to and unto my sons Vikash Chandra and Raltesh Dinesh Chandra in equal shares, share and share alike absolutely."

However, in the former will the two essential clauses were quite different in terms of the intention of the testatrix:

"1 _ _ _

2 I appoint my sons Vikash Chandra and Raltesh Dinesh Chandra (father's name Dinesh Chandra) of 16 Kikau Street Samabula, Suva Director and Self Employed to be my executors and trustees of this my will.

3 I give devise and bequeath all my real and personal estate of whatsoever nature and wheresoever situate of whatever nature or kindsoever, including any property over which I may have a power of appointment or disposition to and unto my said sons Vikash Chandra and Raltesh Dinesh Chandra (father's name Dinesh Chandra) of 16 Kikau Street Samabua, Suva, Director and Self-Employed in equal shares, shares and shares alike."

The principal component of the estate of the testatrix consisted of a half share as tenant in common with her sister of the property at 16 Kikau Street Samabula. The estimated value of that half share was $150,000.00 according to the evidence of the Plaintiff. The effect of the later will was (1) to revoke the will dated 6 December 2002, (2) to appoint the Defendant as sole trustee and executor of the will and (3) to give to the Defendant a life interest in the property which was then to pass to the Plaintiff and his brother.

Although not produced during the course of the trial, in the Court file was a caveat dated 17 January 2003 but filed on 19 February 2003 by Patel Sharma and Associates on behalf of the Defendant. A caveat dated 17 February 2003 was filed on the same day by G.P. Lala and Associates on behalf of the Plaintiff and his brother Raltesh Dinesh Chandra. Of course both caveats were lodged well before the Plaintiff commenced the present proceedings. Both caveats sought to restrain any grant of probate or sealing thereof without notice to the caveators.

In the closing submissions filed on 17 February 2012 by Counsel for the Plaintiff it is stated that the Plaintiff made an application for probate of the former will on 5 February 2003. A Probate Registry print out shows that the Defendant made an application for probate of the later will on 7 April 2003. There was no print out relating to the Plaintiff's application for a grant in respect of the former will.

On 19 May 2003 the Defendant filed and subsequently served on the caveators a "Warning to Caveator." The Plaintiff and his brother were required within 8 days of service of the warning to enter an appearance setting out their interest in the estate of the deceased. On 22 May 2003 the caveators entered an appearance claiming an interest in the estate of the deceased under a will registered number 10830 with the Registrar of Titles and opposing the sealing of a grant of probate on the will dated 6 January 2003. It is clear that up to this point the parties had been proceeding under Rule 44 of the Non-Contentious Probate Rules to which reference is made in both section 52 of the Succession, Probate and Administration Act Cap 60 and in Order 1 Rule 11 of the High Court Rules.

On 11 July 2003 the Plaintiff and his brother commenced the present proceedings against the Defendant seeking orders that the Court pronounce against the later will and pronounce in favour of the former will. As a result of the 2006 amended Writ and Statement of Claim the Plaintiff's brother was no longer a party. The relief sought was amended. The Plaintiff sought an order pronouncing against the later will and an order for probate in favour of the former will.

During the hearing of the action it was disclosed that the Plaintiff had reached an agreement with his brother whereby the Plaintiff had acquired his brother's "interest" in the estate.

As a result, the hearing proceeded on the basis that the Plaintiff's interest in the whole of the estate of the deceased under the former will was prejudiced by the testamentary document being the later will. Under those circumstance the executor (in this case the Defendant) of the later will was compelled to propound that will and to establish it by calling one or more of the attesting witnesses: Belbin –v- Skeates 164 ER 669. As I indicated earlier the Defence filed by the Defendant did not, in my judgment, require the Plaintiff to propound the former will. The claim in the Defence, in my judgment, went no further than to allege that the former will was not the last will of the testatrix due to the existence of the later will which, amongst other things, purported to revoke "all former wills and testamentary dispositions."

Whenever it is necessary for an executor to establish due execution of a will, he is required, at common law, to call one of the attesting witnesses, if any was available (Bowman –v- Hodgson (1867) 1 L.R. P and D 362).

The burden imposed on a party who seeks to propound a will was stated clearly by Lord Hanworth MR in In the Estate of Lavinia Musgrove, Davis v Mayhew [1927] P 264 at page 276:

"It is clear first, that the onus of proving a will lies upon the party propounding it, and secondly, that he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. To develop this rule a little further – he must show that the testator knew and approved of the instrument as his testament and intended it to be such.

Parke B in the course of his judgment in Barry v Butlin (1) says:

The strict meaning of the term onus probandi is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases the onus is imposed on the party propounding a will, it is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed."

The Court will usually pronounce for a will if one of the attesting witnesses deposes to the due execution of the will. However the Court will not exclude further relevant evidence for the purpose of avoiding fraud. Vere – Wardale –v- Johnson and Others [1949] P 395 is authority for the proposition that "the evidence of the attesting witness to a will is not necessarily conclusive, and the court is competent to receive evidence in rebuttal." Willmer LJ at page 397 stated:

"It appears to me that the object of the legislature in imposing the strict formalities required by the Wills Act, 1837, was to prevent fraud. My duty here is to do all that I can to see that no fraud is perpetuated; and if I exclude further evidence such a ruling can only assist the possibility of the perpetration of fraud.

In the circumstance it is my opinion that it would be quite wrong, and not in accordance with authority, to exclude such further evidence with regard to the attesting of this will as may be available."

The issue to be determined is not whether the two attesting witnesses were both present at the time when the deceased signed as testatrix, the question is whether the deceased signed the document.

One of the two attesting witnesses to the signature of the deceased on the later will was Elemi Kurusiga. He was called by the Defendant to give evidence. He was shown the document marked as 'ex 3' being a copy of the will dated 6 January 2003 (the later will). He acknowledged that the signature was his and that he had printed his name and address under his signature. He said he recalled that the document was a will. He stated that the other witness Mr Damodar Prasad signed in his presence. He also recognised the signature of the testatrix who had signed the will in his presence. The date "6 January 2003" was written in his presence. The will was signed at 16 Kikau Street Samabula.

Under cross-examination the witness admitted that he knew both the Plaintiff and the Defendant. However he pointed out that he had become acquainted with the Plaintiff first. He had some time prior to 6 January 2003 sold his car to the Plaintiff. He said that he often visited the family home (i.e. the Chandra home at 16 Kikau Street). He stated that the testatrix had asked him to witness the will on the same day as he signed it. He just happened to be visiting on that day. It was a Monday. He stated that he spoke English and Fijian. He also stated that he understood the Hindi language spoken by Fijians of Indian descent and could "speak a little." He confirmed that he had read the paragraph which appears below the signature of the testatrix. He had explained its contents to the deceased who appeared to understand what he had said.

He said he had made a written statement to the Police. He had been given a copy but he did not have the copy now. He said he had told the Police Officer interviewing him that he had signed the will as a witness. He denied having received any guidance before being interviewed by the Police.

During the course of cross-examination the witness was asked to explain a two page document. The first page, he admitted, was in his handwriting. The second page was a typed version of the first page. The witness accepted the accuracy of the typed version. The two page document was admitted into evidence as ex. 33.

The document is undated. The witness could not recall when he had drafted the document. He said that it was an outline of what had transpired on the day the will was executed being 6 January 2003. It is apparent from point 10 that the notes were written some time after 6 January 2003. Point 10 states:

"I recall making a casual visit to 16 Kikau St on Monday 6 January 2003 around 3.00p.m."

The notes were, in respect of relevant details, consistent with the evidence given by the witness at the hearing.

It would appear that the other attesting witness, Mr Damodar Prasad was unable to attend court to give evidence due to illness and absence in Australia. The evidence called by the Defendant established a prima facie case for pronouncing in favour of the will dated 6 January 2003 on the basis that the deceased had executed the will in the presence of two witnesses and on the basis that the will revoked all previous wills.

The Plaintiff's principal challenge to the later will was based on the allegation of fraud in that the signature of the testatrix was forged. It was alleged that the testatrix had not executed that testamentary document.

There were further allegations (i) that the Defendant had forged the signature only upon acquiring knowledge of the existence of the will dated 6 December 2002 and (ii) that the Defendant had manufactured the will dated 6 January 2003 after the death of the deceased. However the evidence adduced to establish the first of these allegations was entirely circumstantial and in my judgment fell short of even the civil standard being on the balance of probabilities. It was simply not possible on the evidence before the Court to make a finding as to when the Defendant acquired knowledge of the existence of the will dated 6 December 2002. The second allegation is to some extent connected with what is without doubt, the principal issue raised by the Plaintiff. That is whether the signature on the will dated 6 January 2003 was the signature of the testatrix.

The burden falls on the Plaintiff to establish that fraud was involved in the sense that the signature on the will dated 6 January 2003 was not the signature of the deceased and had been forged.

The Plaintiff called an expert witness by the name of Mr Paul Westwood. Mr Westwood described himself as a handwriting and questioned document examiner. Mr Westwood had prepared a report dated 8 December 2006 which was admitted into evidence as ex. 7. He gave evidence by Skype from Sydney on the first day of the hearing. He was also cross-examined by the Defendant who was appearing in person.

The expert's evidence of handwriting in this case was evidence by comparison. A number of documents which were accepted as having been signed by the deceased were forwarded by the Plaintiff's legal practitioner to the expert. These signatures were compared with two signatures on the will document dated 6 January 2003. The purpose of such evidence and the role of the expert was succinctly stated by the learned authors of "Cross on Evidence": Second Australian Edition at page 622

"Strictly speaking an expert in handwriting should not be asked to say definitely that a particular writing is to be assigned to a particular person. His function is to point out similarities between two specimens of handwriting or differences, and leave the court to draw their own conclusions: (Wakefield –v- Bishop of Lincoln (1921) 90 LJPC 174."

In his oral evidence Mr Westwood adopted his report and indicated that he had nothing further to add to the report. When cross examining the expert the Defendant appeared not to take issue with Mr Westwood's qualifications which were set out in Appendix F to his report.

By letter dated 17 November 2006 from the then legal practitioners acting for the Plaintiff, Mr Westwood was instructed to undertake a comparative examination of two questioned and eight specimen signatures in the name of P. Chandra. The purpose of the examination was to possibly determine whether or not the two questioned signatures which appeared on the will dated 6 January 2003 were written by the writer of the eight specimen signatures attributed to (and apparently not disputed) the deceased.

Mr Westwood stated in paragraph 8 of his report that he was satisfied that the specimen signatures on or reproduced on the documents provided could reasonably be taken to have been written by one person. The Report then indicated that these specimen signatures would be referred to as the Chandra specimens.

The Report then stated that a comparison of the questioned signatures on the will dated 6 January 2003 and the Chandra specimens revealed a similarity in general appearance as well as significant differences between them. He then listed six significant differences. In paragraph 11 he concludes:

"In the light of these observations I have concluded that the questioned signatures are very probably the product of some person attempting to simulate the form of a genuine "P. Chandra" signature."

As the document under consideration purported to be the last will and testament of the deceased, Mr Westwood thought it was unlikely that this was a document which the deceased would have signed in a manner which might subsequently give her the opportunity "to disavow" the signature.

Under cross-examination Mr Westwood stated that he had not examined the handwriting of the date "6 January 2003" on the later will. He had made no conclusion about the possibility of the date and the signature having been written by the same person. He accepted that the dates on the acknowledgment letter appeared to have been written by different persons. On that document he could not conclude whether the signature and first date had been written by the same person.

In respect of one of the specimen documents (pages 18 and 19 of the report) Mr Westwood stated that any differences in the specimen signatures were due to natural variation and in his opinion were all written by the same person.

He considered that the specimen signatures on the provided documents were consistent over a number of years. He also stated that he had not listed the similarities, only the differences. He considered the similarities to be self evident and he said that the differences between the specimen signatures (the Chandra specimens) and the questioned signatures were significant and certainly constituted more then variations. He stated that he felt his conclusion was justifiable on the basis of the material provided.

In re-examination he confirmed that he had not been requested to examine the handwriting of dates nor the signatures of the witnesses. He also stated that as far as he was aware all the specimen signatures were non-contentious signatures.

I am satisfied that in reaching his conclusion Mr Westwood had taken into account the fact that the specimen signatures represented non-contentious samples covering a wide period of time with variations that may be expected to develop over time.

It was not put to Mr Westwood whether his conclusion would be any different if evidence was presented that an attesting witness had been present when the deceased signed the will dated 6 January 2003 being the document containing the two questioned signatures.

Furthermore there was no evidence to infer that the significant differences in the questioned signatures were the result of ill health or senility on the part of the deceased at the time when she was alleged to have executed the will dated 6 January 2003. There simply was no evidence to that effect from any of the witnesses who were called at the hearing. The evidence called by the Defendant as to the circumstances under which the later will had been executed would allow the Court to conclude that in every respect the conditions and circumstances were entirely ordinary and would not in any way have contributed to the significant differences which Mr Westwood's report found and upon which he based his conclusion.

In my judgment Mr Westwood's evidence in the form of his report and his oral evidence was balanced, professional and objective. He answered the question that was asked in clear terms. His methodology was logical and comprehendible. The substance of his evidence was persuasive and, in my view, reliable.

As a result the Court must now return to the evidence given by the attesting witness. In particular I have some reservations about the circumstances surrounding the execution of the later will. The attesting witness stated that he just happened to be making a casual visit when he was asked to witness the will. At the same time Mr Damodar Prasad just happened to be visiting the deceased and her husband. The evidence appeared to be that out of the blue it was suggested that the two visitors should witness the deceased's will which was then prepared and typed by the Defendant whilst the visitors continued drinking "grog". The question that concerns the Court is whether this narrative of events was merely a coincidence or too good to be true. The will dated 6 January 2003 was not prepared by legal practitioners. The will dated 6 December 2002 was prepared by a legal practitioner. The mutual wills dated 29 December 1994 were prepared by legal practitioners. The will made by the deceased in 1996 was in a form which appeared to have been prepared by the Trustee Corporation Limited.

I am satisfied that the will dated 6 December 2002 was made by the testatrix as a result of a heated argument between the deceased and the Defendant the day before at the family home. This resulted in a complaint of assault against the Defendant being made to the police by the testatrix. The effect of the former will was to change the testamentary disposition of her estate in favour of her two sons.

The Plaintiff stated in his evidence that to his knowledge nothing had changed between the deceased (his mother) and the Defendant (his father) between 6 December 2002 and the date of her death on 15 January 2003 that would have resulted in the need for a further will to effect a different testamentary disposition. He denied that any will was made by his mother on 6 January 2003. He maintained that he and his partner were at the family home all that day. He denied that either of the two witnesses visited the home that day. He accepted that both his parents were at home that day. Although both the Plaintiff and the Defendant had much to gain by the Court preferring the evidence of one over the other, I have concluded that the evidence of the Plaintiff appeared to be logical and consistent. It was based on a better memory and recollection of events. The Court prefers his evidence as being more reliable. The Defendant's evidence appeared to be based more on a reconstruction of events.

However there is another aspect of the evidence adduced by the Defendant which is of some concern to the Court. During the course of his evidence the Defendant stated that at the request of the deceased he prepared a will which she wanted in the same terms as the 1994 mutual wills. He said that he did this at her request on about 18 or 19 December 2002. After he had prepared the will he gave it to the deceased who put it into the safe. When Damodar and Kurusiga visited on 6 January 2003 to drink grog the deceased indicated to her husband that "these two will do."

On the other hand there is the evidence of the attesting witness Kurusiga in the handwritten statement which was admitted into evidence as exhibit 33. The typed version of that statement contains the following:

"11 On arrival Mr Chandra and Damodar Prasad were having grog in the lounge.

12 I joined them.

13 About 20 minutes later Mrs Chandra joined us and requested me and Damodar to be signatures to her Will in the present of Mr Chandra.

14 I suggested to see the lawyer but she refused, because its going to be late.

15 In the Mr Chandra agreed that mine and Damodar's signature were sufficient and no lawyers were necessary.

16 Mr Chandra also said that they were leaving for Nadi.

17 The papers were then typed by Mr Chandra and Mrs Chandra.

18 Myself and Damodar continued to drink the grog while Mrs Chandra left for the kitchen.

19 Mr Chandra had left with us to read a page on information about Will.

20 It was between 4.00 and 4.30pm that the papers were signed."

There was never any suggestion that there were two drafts of the will dated 6 January 2003. Mr Kurusiga was narrating events that occurred on the day of signing and witnessing the will. The Defendant's evidence was that the will had been typed on 18 or 19 December 2002. Mr Kurusiga's evidence was that the documents were typed on 6 January 2003. This is a significant issue upon which there is disagreement as to the date the will was typed. It is unfortunate that neither witness was cross-examined by Counsel on this critical issue. The accounts given by the attesting witness and by the Defendant as to the circumstances surrounding the preparation and typing of the will are inconsistent. The inconsistency relates to an essential detail forming part of the Defendant's attempt to propound the will dated 6 January 2003. It was a matter of some importance in the context of the transaction in which each of them participated. The Defendant was alleged to have typed the will. Mr Kurusiga was alleged to have witnessed the signing of the will. Apart from any unfavourable impression that may have been formed by their demeanour, I consider that there were inherent improbabilities in the accounts that they both gave concerning the execution of the will in question. I have concluded that their evidence was unreliable and I have therefore rejected both versions as to the typing and execution of the will dated 6 January 2003.

All the evidence that I have considered above leads me to the point of not accepting the genuiness of the signature on the will dated 6 January 2003 and as to its due execution. The Defendant has not established, on the balance of probabilities that the will was the last will and testament of the deceased. As a result the Court pronounces against the will dated 6 January 2003.

The next question for the Court is whether it should grant probate of the will dated 6 December 2002. As I have previously found the pleadings do not put into issue the validity of the former will. This finding is based on paragraph 2 of the Statement of Claim which pleads that the will dated 6 December 2002 was the last true will of the deceased. The remainder of the Plaintiff's claim refers to the will dated 6 January 2003. In the relief claimed by the Plaintiff, the Court is requested to pronounce against the will dated 6 January 2003. It is not expressly requested to pronounce for the will dated 6 December 2002. In his Defence the Defendant pleaded only an allegation that the former will was "not the last will" of the deceased. Had he put the validity of the will in issue, it would have been necessary for the Plaintiff to prove due execution. In my judgment validity was not in issue. The only issue was whether the will dated 6 December 2002 was the last will or the second last will of the deceased.

As a result it was not necessary for the Plaintiff to call either of the attesting witnesses to the will dated 6 December 2002 to establish due execution and hence validity.

In conclusion I pronounce against the will dated 6 January 2003. I order that probate of the will dated 6 December 2002 be granted in common form to the Plaintiff and his brother as executors and trustees subject to the lodgment with the Chief Registrar of the necessary application. I refer the matter to the Chief Registrar to complete the grant. I also order that the Defendant pay the Plaintiff's costs of those proceedings which are fixed summarily in the sum of $1500.00. I make no order in respect of the Plaintiff's claim for re-imbursement of any amount paid by the Plaintiff. The Plaintiff as the Defendant's son should make some form of provision for or assistance to his father.

W D Calanchini
Judge

14 May 2012
at Suva