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Narayan v Narayan [2014] FJHC 955; HBC250.2005(S) (16 June 2014)

IN THE HIGH COURT OF FIJI AT SUVA

Civil Action No. HBC 250 of 2005(S)
HBC 332 of 2005(Ltk)

Between:

Prem Narayan
First plaintiff

And:

Deo Narain
Second plaintiff

And:

Bal Ram
Third plaintiff

And:

Vijay Narayan
First defendant

And:

Kushdeep Kumar
Second defendant

Appearances:Mr Anil Singh for the plaintiffs
Mr C.B.Young for the defendants
Ms A. Swami for the intervener

Dates of hearing: 3rd and 4th June, 2014

Judgment

1. The plaintiffs and the first defendant are children of the testatrix, Bhan Mati. The second defendant is admittedly, said to be a nephew of the first defendant, "by affinity".In these proceedings, the plaintiffs allege that the first and second defendants fraudulently coerced and unduly influenced the testatrix to make a Will, leaving the substantial portion of her properties, cash and term deposits in two banks to the first defendant and his four daughters. Bandhana (Vandhana) Narayan, a daughter of the first defendant and adopted by the parents of the second defendant, is also a beneficiary. It is also alleged that the Will contains several blank spaces and typed inserts effected after the execution by the testatrix. The two married daughters and a grandchild of the deceased were bequeathed minimal portions. Another son, Yasua Narayan,(the intervener)joined on the application of the second defendant, was left farm machinery. The plaintiffs seek that the Will be declared null and void, the probate granted to the first defendant be revoked and letters of administration be granted intestate.
   
2. The amended statement of claim
   
   1. The amended statement of claim recites that the testatrix died on 3rdOctober,2004, leaving a last Will of 30th August,1995.
      
   2. On 14thDecember, 2004, the third plaintiff lodged a caveat against the grant of probate of the Will.
      
   100. The first defendant, in 2005 "by trickery or collusion" caused the trustee under the Will, Amra Wati Singh to renounce her trusteeship in his favour and obtained probate P43300 on 18th February, 2005, despite the caveat. On 16thMarch, 2005, the plaintiffs discovered the grant of probate to the first defendant and complained to the Registry. The Registry notified Chaudhry & Associates, solicitors for the first defendant, to return the probate.
        
   4. The plaintiffs state that on 16th March,2005, the first defendant was in one of the banks to withdraw money, when the Registry and the plaintiffs' solicitors immediately advised ANZ Banking Group and Westpac Banking Corporation that the probate was granted in error and to withhold all transactions. There was a sum of $100,000, in both banks.
      
   5. The amended statement of claim continues to state that the plaintiffs, after the death of their father, contributed to the acquisition, maintenance and upgrading of the property and chattels acquired by the deceased in her name and by inheritance from her late husband, who died intestate with the concurrence of the deceased that she will leave the properties to the plaintiffs equally.
      
   6. The first defendant worked for Air Terminal Services. He did not contribute to the acquiring or upkeep of the properties. He was sickly and did not work in any farm. The plaintiffs helped him to acquire a farm in his own name. The third plaintiff worked his farm and the deceased's farm without remuneration, on the express and or implied assurance of the deceased that she will leave certain properties to the third plaintiff.
      
   7. The deceased was uneducated and an illiterate person. She could not give valid instructions for preparation of her will. The deceased had no understanding of the details of her properties such as title numbers, vehicle numbers nor the names of the various beneficiaries named in her Will.
      
   8. Messrs Chaudhary & Associates, solicitors could not locate the instructions in their office.
      
   9. The particulars of fraud and conspiracy read:
      
      1. The two Defendants providing, colluding and conspiring together to provide written instructions as to how the purported Will was to be made by the said Solicitors and who did make the said Will accordingly in terms of the instructions.
         
      2. That the 1stDefendant sending the Deceased specifically to the said solicitors office in Lautoka with the 2ndDefendant to ensure the Will was made in terms of the instructions.
         
      100. That the Deceased signed the said purported Will without understanding the contents thereof.
           
      4. That the Deceased was coerced into signing the Will as directed by the two Defendants who did provide and conspired together with written instructions to the said firm of Solicitors as to how the Deceased's interest and properties were to be bequeathed and devised.
         
      5. That at the time of executing the said Will in 1995, the Deceased was seventy-five years old and had neither the physical nor sound mental understanding of what she was signing or doing.
         
      6. That the Deceased did not herself personally give instructions to the said firm of Solicitors to prepare the Will.
         
      7. That the purported Will was executed by the Deceased under undue influence of the 1stDefendant and 2ndDefendant and who ensured to have the Will made in terms of the instructions provided by them and taken to the said firm of Solicitors office by the 2ndDefendant personally and who brought her back to Nadi where the Deceased resided.
         
      8. That at the time, the Deceased allegedly executed the said alleged Will, she was in such a condition of mind and memory as to unable to understand the nature of the act and its effects.
         
      9. That the Defendant took the advantage of the Deceased's condition and prepared the instructions for the alleged Will and arranged for its alleged execution by the deceased. The Plaintiff would allege that the influence of the 2nd Defendant over the deceased were such that she was not a free agent in that the said alleged will which was not a product of her own violation but was procured by the importunity of the Defendants.
         
      10. The said Deceased at the time of the said alleged Will purports to have been executed did not know or approve of the contents thereof.
          
      11. That the deceased never gave any instructions for the alleged Will and the said alleged Will was not read over or properly explained to her, nor did she read it herself before it was executed and she was not aware of the nature and effect nor she was capable of comprehending or appreciating its provisions and effects.
          
      50. That the said Will was in pre-printed form with blank spaces which appear to have been completed by the First defendant after the alleged execution by the Deceased.
          
3. The amended statement of defence of the first defendant
   
   1. The amended statement of defence of the first defendant states that that Bandhana Narayan was legally adopted by the first defendant's wife's sister and her husband, when she was 1 year,8 months old. Bandhana Narayan often visited and resided with the first defendant's family and the deceased. After leaving school in 1994, she spent most of the time with them and assisted in caring for the deceased.
      
   2. The deceased bequeathed her properties as follows:
      

Lot 18 (Plan ND 5154) from Crown Lease 7386 to her son, the first defendant

Lot 4 (Plan ND 5112) from Crown Lease 7386 to her grandson Neil Narayan of Los Angeles.

Lot 2 (Plan ND 5124) from Crown Lease 7386 as follows:

• One quarter share to her daughter Maya Wati.
• One quarter share to her daughter Padma Wati.
• One half share to her granddaughters Amrita Ashika Narayan, Warsha Bandhana Narayan, Deepa Devika Narayan and Puja Priya Narayan, all daughters of the first defendant .
  

David Brown Tractor registration number AA 051 to the first defendant absolutely (Clause 7 of the Will).

Messey Ferguson Tractor, Toyota Corolla Car and Van registration numbers BB 528, AJ 348 and BP 628 her farm machinery to her son Yasua Narayan absolutely, (Clause 8 and 9 of the Will).

The rest and residue of her property to her granddaughters Amrita Ashika Narayan, Warsha Bandhana Narayan, Deepa Devika Narayan and Puja Priya Narayan.

100. The first defendant states that:
     
     • (i) He became aware of the caveatafter he was granted probate.
       
     • (ii) Amra Wati Singh, the trustee named in the Will renounced her trusteeship in his favour, on her own free will and accord.
       
     • (iii) He informed the first and third plaintiffs that he was obliged to distribute the deceased's estate according to her last Will.
       
     • (iv) He was informed by officers of ANZ Banking Group Ltd and Westpac Banking Corporation that they had received advise there was some error in the issuing of probate.
       
     • (v) On 16thDecember,2005, the Probate Registry notified Chaudhary and Associates, to return the probate granted.
       
     • (vi) He paid labourers to cultivate the deceased's farm, which was in a deteriorating state. He maintained and cared for the deceased.
       
     • (vii) He did not leave the family property of the deceased's estate. He assisted the deceased to maintain, improve and acquire additional properties.
       

4. The plaintiffs and the first defendant acquired farms.
   
5. The first plaintiff did not contribute towards the acquisition, maintenance, improvements of deceased's property and chattles. In the year 1972, the first plaintiff left the deceased's estate in Meiguhyah, Nadi and moved to Westpac Banking Corporation, Suva.
   
6. The third plaintiff constructed a two bedroom corrugated iron and timber house on the deceased's property and rented it. In 1986, the third plaintiff bought a second farm, which he has been cultivating. He did not contribute to the acquisition, maintenance and improvement of the deceased's estate. The third plaintiff took possession of tractor registration nos. AA 051 and BK 638, motor vehicle registration nos. AJ 348 and BP 256, 2 trailers, 1 flat trailer and farm implements belonging to the deceased during her lifetime. He utilised the rental and hire proceeds for his own benefit.
   

4. The amended statement of defence of the second defendant
   
   1. The second defendant reiterates the averments in the statement of defence of the first defendant, as regards Bhandana Narayan.
      
   2. The first defendant provided for the maintenance and care of the deceased. He assisted the deceased to maintain and improve her assets and acquire additional properties.
      
   3. The statement of defence denies the allegations of fraud and conspiracy.
      
5. The reply of the plaintiffs
   

The plaintiffs joins issue with the averments in the defences of the first and second defendants and state that the first and second defendants provided written and oral details that were included in the Will of the deceased. The deceased was not in a position to provide the relevant details contained in the Will, as she was illiterate.

6. The hearing
   

The first, second and third plaintiffs PW4,(Rimal Narayan, a son of the third plaintiff) testified.
DW1,(Mr Rajendra Chaudhary, solicitor), DW2,(Dr Sanesh Kumar) and the first defendant gave evidence for the defendants.

7. The determination
   
   1. The plaintiffs allege that the last Will of 30th August,1995,of Bhan Mati, their deceased mother was not executed in accordance with the provisions of the Wills Act(cap 59).
      
   2. I will start with the ultimate particular of fraud and conspiracy pleaded. This provides that "the said Will was in pre-printed form with blank spaces which appear to have been completed by the First defendant after the alleged execution by the Deceased".
      
   100. The Will was prepared by DW1,(Mr Rajendra Chaudhary, solicitor at Lautoka,).
        
   4. The plaintiffs, in their testimony and the closing submissions filed on their behalf pointed out to several typescript amendments made in several clauses of the Will, at page 1. I reproduce the relevant clauses:
      

Clause 6: I GIVE DEVISE AND BEQUEATH Lot 2 ( Plan ND 5124) from my Crown Lease Number 7386 to the following as.........

Clause 7: I GIVE DEVISE AND BEQUEATH my DAVID BROWN Tractor registration number AA 051 to my son VIJAY NARAYAN absolutely.

Clause 8: IGIVE DEVISE AND BEQUEATH my MASSEY FERGUSON Tractor, Toyota Corolla Car and Van registration numbers BB 528 AJ 348 and BP 628 to my son YASUA NARAYAN absolutely.

5. I find, an unusual space preceding the words "Lot 2" in clause 6,as contended by the plaintiffs. The numeral "2" is in a different typeset. There followed a list of bequests,6 in all, with the highest percentage of one half share to the testatrix's "granddaughters AMRITA ASHIKA NARAYAN, WARSHA BANDHANA NARAYAN, DEEPA DEVIKA NARAYANandPUJA PRIYA NARAYAN all daughters of Vijay Narayan..", and one quarter share to two of her married daughters "MAYA WATI and "PADMA WATI".
   
6. Next, the registration numbers of the vehicles in clauses 7 and 8 have been typed and inserted in a different typeset. As pointed out by the plaintiffs, there is also a significant and inexplicable blank space after the typed words "AA 051" in clause 7;and after, and in between "AJ 348 and BP 628"in clause 8, as depicted.
   
7. Page 1 of the Will containing the typescript insertions highlighted does not bear the signature of the testatrix. In my view, that omission is fatal to the validity of the Will.
   
8. I would refer to section 12 of the Wills Act. This reads:
   

Alterations in wills

Except so far as the words or effect of a will before an alteration are not apparent, an alteration made in a will after the execution thereof is invalid unless it is duly executed in the manner required by section 6 by the signatures of the testator and witnesses, either in the margin or opposite or near the alteration in such manner as to indicate the intention of the testator that the will as altered was to take effect, or to a memorandum written on the will and referring to the alteration and in either case the will as so altered shall be deemed to have been duly executed.

1. For an alteration to be valid, then the alteration has to be duly executed, in terms of section 6.
   

10. Section 6 provides that "a will is not valid unless it is in writing and executed in the following manner: -
    

Execution generally

(a) it is signed by the testator ......

(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,..

11. DW1, in cross-examination admitted that the typing was in a different print and the signature of the testatrixisnot contained in page 1. He said the differences existed at the time she signed the Will.
    

50. The short answer to that contention is contained in the headnote to Doe v. Palmer,16 QB 748:
    

Alterations apparent on the face of a will are presumed to have been made after the will was executed, until evidence to the contrary is adduced. .. Held, that it was necessary for the defendant to rebut the presumption of the alterations having been made after the will was executed by adducing some evidence of their having been made before. Also, that the declarations of the testator made before the execution of the will were admissible evidence from which a jury might draw that inference, since the alteration was made in furtherance of an intention shown to have existed before the execution of the will.(emphasis added)

13. There was no evidence adduced by the defendants, to rebut the presumption that the alterations were made after the Will was executed.
    
14. It follows that the alterations are not valid.
    
15. It transpired in evidence that two names of the grandchildren of the testatrix in clause 4 are misspelt.DW3,(the first defendant) admitted that the name of the daughter he adopted out to the second defendant, was misspelt in the Will and likewise in paragraph 3(2) of the statement of defence.
    
16. On that point, Mr Young, counsel for the defendants, in his closing submissions quite correctly submits that the misnaming of a legatee is not sufficient to disentitle the legatee to a legacy. But the issue is whether the misnaming excites the suspicion of Court, and calls upon it to be "vigilant and jealous", in examining the evidence placed before Court.
    
17. As Lord Langdale, M.R., in Giles v Giles. Penfold v Penfold,, [1836] EngR 1023; [1836], 1 Keen 685 as cited by Karminski, J in Re POSNER (deceased), [1953] 1 All ER 1123 at 1124 stated:
    

.a mere misdescription of a legatee will not defeat the legacy..In order to defeat the legacy there must also be a fraudulent assumption of that character, and furthermore, the testator must have been deceived by that fraud.(emphasis added)

18. Viscount Simonds in Wintle v Nye,[1959]1 WLR 284 at page 291 declared:
    

a suspicion must be removed by the person propounding the will. In all cases, the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.

19. In Nock v Austin, (1918) 25 CLR 519 Isaacs J. at page 528 laid down the law as follows:
    

The relevant law is not doubtful. It may be thus stated:-(1). In general, where there appears no circumstances exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents..(2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document..(3)If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate..(emphasis added, footnotes omitted)

20. There is an unusual space between clause 10 and the commencement of the next paragraph "IN WITNESS" and again, between that paragraph, the signature of the testatrix and the attestation clause, as admitted by DW1, in cross-examination.
    
21. It emerged that two of the three vehicles featured in clause 8 of the Will: BB 528 and BP 628 did not belong to the testatrix. The third, AJ 348 is described as a Toyota Corolla, when it was a Toyota Crown Mark II.
    

5. DW1, in cross-examination stated that specific details pertaining to the registration numbers and names were given to him by an intermediary, Amara Wati Singh, a sister of the testatrix and the trustee and executor appointed under the Will
   

23. I refer to the cross-examination of DW1:
    

Q. Who provided you the details in clause 8 regarding the vehicles?

1. From memory, Amara Wati brought the 3rd party policies. Amara Wati provided details to verify registration numbers
   

Q. It is the will of Amara Wati, she is your friend?

A. She was assisting, as she (Bhan Wati) was not educated. She gave registrations nos, but Bhan Wati gave instructions..

Q. Unchallenged evidence that Bhan Wati did not own vehicle BB 528 and BP 628

A. Nos could be a mistake

.........

Q. Bhan Wati did not know the names of her grand children?

A. She was assisted by Amara Wati.(emphasis added)

10. I find DW1's testimony that the testatrix gave instructions and Amra Wati Singh provided the details most suspicious. I am far from satisfied that the testatrix knew the extent of the properties she was disposing.
    

25. Moreso, DW1 said that he could not find the written instructions given to him by the testatrix. This is a strong contraindication that the testatrix gave him instructions. He could not recollect, if his fees were paid. It transpired that he had no proof of the identification of the testatrix, when she came to execute the Will. She was introduced to him by Amra Wati Singh, The family lawyers of the testatrix were admittedly, Messrs Suresh Maharaj and Harish Sharma.
    
26. In relation to the capacity to make a Will, Cockburn C.J., in Banks v. Goodfellow, (1870) L.R.5 QB 549 said that it is "essential to the exercise of such a power that the testator shall ..understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect;.."(emphasis added)
    
27. The preceding passage was cited in the more recent case of Perrins v Holland,[2010] EWCA Civ 840; [2011] 2 All ER 174 at page 188.
    
28. On the opportunities for deception where instructions are given by an intermediary, Lord Normand in Batan Singh v. Amirchand, (1948) AC 161 at pg 169:
    

The opportunities for error in transmission and of misunderstanding and of deception in such a situation are obvious, and the court ought to be strictly satisfied that there is no ground for suspicion, and that the instructions given to the intermediary were unambiguous and clearly understood, faithfully reported by him and rightly apprehended by the solicitor, before making any presumption in favour of validity.(emphasis added)

0. Lord Normand cited Cockburn C.J., in Banks v. Goodfellow,(supra) as follows:
   

it is essential to the exercise of such a power (scilicet, testamentary power) "that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect;(emphasis added)

30. The defendants called DW2,(Dr Sanesh Kumar) who had attended the testatrix. He said that she had minor ailments and did not suffer from dementia nor Alzheimer.
    
31. In my view, the key issue is whether the testatrix was of sound memory and understanding at the time she executed her Will.
    
32. PW1, PW2 andPW3(the plaintiffs) and PW4 testified that the testatrix was illiterate and had memory losses. She had no knowledge of the extent of her property, title number, registration numbers of vehicles nor the correct names of her grand-children. She called them by nicknames, while the Will contains their names in full.
    
33. I accept the evidence of PW1,PW2, PW3 and PW4that the testatrix was illiterate, forgetful at 71 years of age and unversed with the properties she was bequeathing. I found them to be reliable and credible witnesses.
    
34. In my view, the Will was not the offspring "of a free and capable testator" in the words of Lord Hanworth M.R. in In the Estate of Lavinia Musgrove, Davis v Mayhew, [1926] P 264 at page 276 as cited by Mr Anil Singh, counsel for the plaintiffs in his closing submissions.;
    

2. It transpired in the evidence of DW3,(the first defendant) that the second defendant,(a nephew of the first defendant) took the testatrix to Lautoka, while Amra Wati Singh had taken her to the office of DW1.
   

36. Amra Wati Singh, by a deed of renunciation signed before DW1 on 30th November, 2004, renounced her rights as sole executrix and trustee of the estate and consented to the grant of probate to the first defendant.
    
37. DW3, in cross-examination said that Amra Wati Singh renounced her rights of her free will. She phoned and asked him to accompany her to the office of DW1. It emerged that DW3 had met Pravin,( DW1's clerk) on 10 to 11 occasions on that account. Mr Anil Singh put it to him that Pravin gave him a "precedent" copy of a Will and he,(DW3) filled in the details and took it to DW1 for attestation.
    

0. DW1 was pertinently asked why the first defendant was substituted as trustee, when there were other members of the family too. I find his answer which I reproduce as follows, t unsatisfactory:
   

He (DW1) agreed to be trustee-he saw my clerk Pravin..

..others did not come forward.

39. The role played by Amra Wati Singh eludes me. She was not called to testify. I agree with Mr Anil Singh, that the rule in Jones v Dunkel, applies.
    
40. PW1,PW2 andPW3 testified that all of them together with the intervener worked in the farm.PW3 admittedly, continues to work on the farm. They said that the first defendant was sickly and could not work on the farm. He was employed. Their mother regarded her lease, as a family investment. She assured them that upon her death, the estate will be distributed equally among them. She had not mentioned the Will to any of them.
    
41. Next,DW3admitted that Maya Wati, the testatrix's daughter had built a house on Lot 18 of the lease. She lived in that house for 30 years. Lot 18 was bequeathed to the first defendant by clause 4 of the Will.
    
42. The question arises whether the testator acted of her own volition, in making the dispositions.
    
43. In my view, it would appear that the passing over of the plaintiffs, Maya Wati and the intervenor, (who was left farm machinery)was rendered improbable under the unhappy circumstances of this case. Padma Wati, the other daughter predeceased the testatrix.
    
44. The first defendant had a different story to tell. He said his brothers did not contribute to the estate and the testatrix was sharp and alert.
    
45. I do not accept the evidence of the first defendant. I found him to be evasive and an untruthful witness. His answers to the questions posed in cross-examination on the insertions and discrepancies in the Will and the reason why the testatrix suddenly visited Amra Wati Singh in Lautoka, were unsatisfactory.
    
46. In my judgment, the evidence of DW1, DW2 and DW3 fails to dispel the suspicious circumstances surrounding the execution of the Will. The defendants have failed to discharge the burden of proving that the testatrix knew and approved of the contents of the Will.
    
47. There remains the allegations of undue influence against the defendants.
    

0. Lindley, L.J. in Tyrrell v. Painton, (1893) P 151 at page 157 said that " it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the Will, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence..".
   

49. For completeness, I will proceed to consider the allegations of undue influence.
    

20. Hood J of the Supreme Court of Victoria in In the Will of Wilson, [1898] VicLawRp 39; (1897) 23 VLR 197,198-199 succinctly stated:
    

To constitute undue influence there must be coercion or pressure, so as to overpower the volition of the testatrix, there must be some substitution of another mind for hers.

51. The Supreme Court of Victoria in Nicholson v Knaggs, [2009] VSC 64 at paragraph 127 stated that:
    

The test to be applied may be simply stated: in cases where testamentary undue influence is alleged and where the Court is called upon to draw an inference from circumstantial evidence in favour of what is alleged, in order to be satisfied that the allegation has been made out,the Court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole. (emphasis added)

52. DW3and his family were living with the testatrix. He and his family were the substantial beneficiaries of the Will. He had the opportunity to influence the testatrix.
    

aaa. Revising the evidence as a whole, to my mind, the facts are consistent with the hypothesis that the Will was obtained by the undue influence of DW3.I have no hesitation in drawing this inference. The "facts..are inconsistent with any other hypothesis", in the words of Lewinson J in Edwards v. Edwards, [2007] EWHC 1119,paragraph 47 iii).

bbb. I have come to the conclusion that undue influence is established particularly, from the following facts:(i)the vulnerability and dependency of the testatrix on DW3, (ii) the suspicious circumstances surrounding the execution of the Will,(iii) the engagement of DW1 as solicitor, when the solicitors of the testatrix were admittedly, Messrs Suresh Maharaj of Lautoka and Harish Sharma of Nadi,(iv) Amra Wati Singh's role as intermediary and her relinquishing her appointment as sole executor and trustee and the clandestine substitution of the first defendant, as sole executor and trustee, by an affidavit signed before DW1,(v) the cutting out of the plaintiffs and Maya Wati of Lot 18, (vi) DW3's conduct in obtaining Probate no: P 43300 on 18th February,2005,despite the caveat granted against the probate on 14th December,2004, and admittedly, withdrawing a sum of $ 64000 from the bank account of the testatrix and inserting his name in the lease by transmission of death on 14th March,2005, without uplifting the title.

0. Mr Young, in his closing submissions argues that the first defendant was not in the office of DW1, the solicitor, when the Will was executed.
   

ddd. I need hardly state that there is rarely direct evidence of undue influence. The "proof has to come from more, circumstantial evidence":Schrader v. Schrader,[2013] EWHC 466 at paragraph 96.

eee. I would also refer to the following passage from the judgment of Nicholson v Knaggs, (supra,at para 150):

The key concept is that of "influence". The influence moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the free, independent and voluntary will of the testator. It is the fact rather than the means which is the focus of the principle. The effect can be achieved in the context of a variety of circumstances and relationships. It can be the product of a chain of events, or a single event. It may be achieved by the conduct of one person or several, whether acting in concert or quite independently.

fff. As against the second defendant, the evidence is in my view, to slender to build a case of undue influence. The part played by the second defendant was limited to taking the testatrix from Nadi to Lautoka.

8. Before I part with this judgment, I note that Mr Young, in his closing submissions has raised the issue that the other beneficiaries were not made parties to this case. In my view, that is a procedural irregularity, which should have been raised at the commencement of the case.
   
9. In my judgment, the plaintiffs' action succeeds. The estate of Bhan Mati falls to be divided intestate.
   
10. Orders
    

I make orders as follows that:

1. I pronounce against the Will of 30th August,1995 of Bhan Mati.
   
2. Probate No.43300 granted on 18th February, 2005, to the first defend ant is declared null and void and is revoked.
   
3. The first defendant shall return to the estate of the late Bhan Mati, the sum of $ 64000 he withdrew from her bank account.
   
4. Letters of administration of the estate of late Bhan Mati be granted intestate, as provided in the Succession, Probate and Administration Act.
   
5. The defendants shall pay the plaintiffs costs in a sum of $ 5500 summarily assessed.
   

16^th June, 2015

A.L.B.Brito-Mutunayagam
Judge