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Maharaj v Lochan [1979] FJLawRp 38; [1979] 25 FLR 156 (29 March 1979)

[1979] 25 FLR 156

IN THE FIJI COURT OF APPEAL

RAJENDRA DUTT MAHARAJ & ANOR.

v.

HARRY RAM LOCHAN

[COURT OF APPEAL 1979 - Gould, V.P., Henry, J.A. Spring J.A. 13th, 29th March]

Civil Jurisdiction

Action by respondent claiming Probate of the "1965 Will".

K. C. Ramrakha & A Singh for the Appellant.
S. M. Koya for the Respondent.

The testator Shiu Parsad John Lochan died on 24 October 1973 having acquired considerable assets. He had executed four wills, referred to below, being the subject of these proceedings.

1. 1965 Will by which Harry Ram Lochan (respondent) and Rajendra Dutt Maharaj (appellant) were appointed executors and trustees. The dispositions thereby effected are set out in the judgment. Respondent derived income and corpus from this will.

2. Will dated 21 June 1973 (the June 1973 Will) revoking former Wills. Rajendra was appointed sole executor and trustee. The estate was given to the wife, daughters June and Olin and Rajendra.

3. Will dated 22 September 1973 (the first September Will) revoking all forms Wills, and appointing Rajendra and Olin, daughter (wife of Rajendra) June daughter, widow with six children. The estate was equally divided amongst the wife and daughters June and Olin. This was written in the handwriting of the solicitors who drew it up.

4. The last named Will was typed and executed on 25 September 1973 three days later and was called "the September 1973 Will."

The September 1973 Wills contained a statement that no person "other than my above named wife and daughters is entitled to any share or benefit of any kind under this my Will".

By defence and counterclaim the respondents set up the June 1973 will as a revocation of the 1965 will and claimed to be entitled to probate of the "second September 1973 "Will".

In a Statement of Defence to the counterclaim respondent brought all three 1973 wills into issue. The court summarised the Statement of Defence thus:

1. The wills were not duly executed.

2. The wills were forgeries.

3. Fraud had been committed in their execution.

4. Testator lacked testamentary capacity.

5. The appellants and others mentioned had obtained execution by reason of the exercise of undue influence.

The serious allegations mentioned above were made against the wife and June. They were not mentioned as parties. Allegation of forgery were withdrawn.

The learned Judge at first instance made a finding of lack of testamentary capacity in respect of all 1973 Wills (or if wrong) undue influence exercised by the wife, daughters and Rajendra (appellant).

Probate of the 1965 Will in solemn form was decreed.

Held: A Presumption of undue influence can arise where certain relationships - as here-are proved. The question arose as to whom the burden of disproving it arose.

The question posed by the court which should have been answered by the learned trial Judge was "...did the testator understand the nature and extent of the claims on his bounty".

It was impossible, after reviewing the evidence as a whole, to come to a conclusion on the record. The trial Judge had either failed to consider some matters or given undue weight to others e.g. on the failure of those propounding the 1973 Wills to show why the respondent should be disinherited.

A new trial was ordered.

Cases referred to:

In the Craig deed (1970) 2 All E.R. 390.

Craig v. Lamoureux (1920) A. C. 349.

Blomly v. Ryan [1956] HCA 81; 99 C.L.R. 362.

Wingrove v. Wingrove [1885] UKLawRpPro 46; (1885) 11 P.D. 81.

Banks v. Goodfellow L. R. 5 Q.B. 549.

Battan Singh v. Amichand (1948) 1 All E.R. 152.

Swansea Vale (Owners) v. Rice [1911] UKLawRpAC 22; (1912) A.C. 238.

The judgment of the Court was given by HENRY J.A.:

Siuparsad John Lochan alias Shiu Prasad John Lochan late of Lautoka died on October 24 1973. He had earlier executed four wills which are the subject matter of these proceedings. The first was executed in 1965. The then members of his family were his wife (Rambasi), a daughter June who was then (and still is) a widow with four daughters and two sons, a daughter Olin who married the appellant Rajendra Dutt Maharaj and the respondent who was a nephew. Respondent was brought up by testator as a son. He married in 1957 and has two daughters. Respondent's wife and testator's wife were said "not to be compatible" so respondent moved out of testator's home and setup a separate household. The date is not given but it appears to be not later than 1959. Respondent remained on friendly terms with testator. The learned judge found that the "father-son" relationship continued till testator's death.

The relevant testamentary document are:

(1) A will dated February 17,1965, (called "the 1965 will") in which respondent and appellant Rajendra Dutt Maharaj (Olin's husband) were appointed executors and trustees. Provisions was made for the maintenance of the wife for life according to testator's status in life and for Olin until she attained 21 years or married. The remaining income for a period of 20 years, subject of the wife's life interest, was payable equally amongst June, Olin and respondent. The corpus was then divisible amongst the same three beneficiaries equally with a gift over in the event of failure to survive.

(2) A will dated June 21, 1973 (called "the June 1973 will") was a simple will revoking former wills. It appointed appellant Rajendra Dutt Maharaj sole executor and trustee and gave the whole estate equally to the wife, the daughters June and Olin and appellant Rajendra Dutt Maharaj, that is one-quarter each.

(3) A will dated September 22, 1973 (called "the first September will") which revoked all former wills and appointed Olin and her husband executors and trustees (with June as an alternative) and divided the estate equally amongst the wife and daughters June and Olin.

(4) The first September 1973 will was in the handwriting of the solicitor who drew it on the day when he saw testator at his home. This document was, typed and executed by testator three days later, namely, on September 25, 1973. This is called "the second September 1973 will".

The other terms of these wills need not be noted except that the June 1973 will made no provision for the wife to occupy testator's home and the September 1973 wills contained the following provisions:

"I DECLARE that no person other than my abovenamed wife and two daughters are entitled to any share or benefit of any kind under this my will."

Testator had a property on which the business of a cinema was carried on by a company. His wife had a fifty per cent shareholding in the company. The Court was given only sketchy details of the whole estate and its value. However, on the view we have formed, there is no occasion to make further reference to particulars of his estate nor to certain dealings mentioned in evidence. The only other relevant fact is that respondent appears to have acquired considerable assets. He said he had a block of two shops and flats in Lautoka and a house. He gave his occupation as a blacksmith. These are relevant factors to weigh against the needs of the wife and family to share in testator's bounty.

As a result of caveats lodged against the grant of probate respondent commenced an action against appellants claiming probate of the 1965 will. By a defence and counter-claim appellants setup the June 1973 will as a revocation of the 1965 will and claimed to be entitled to probate of the second September 1973 will. In a statement of defence to the counter-claim respondent brought all three 1973 wills into issue and claimed, to summarise a long and particularised statement of defence, that:

(1) the wills were not duly executed;

(2) they were forgeries;

(3) that fraud had been committed in respect of their execution;

(4) that testator lacked testamentary capacity; and,

(5) that appellants together with the wife and June had obtained execution by reason of the exercise of undue influence.

Very serious allegations were made against the wife and June in respect of these grounds but no attempt was made to join them as parties. They were thus not separately represented. June gave evidence but the wife did not. We refrain from repeating the allegations except to say that criminal conduct and grave allegations of fraud were made and claims that testator suffered from (inter alia) senile dementia and apoplexy. There was evidence of at least two strokes, loss of memory, some paralysis and physical pain and suffering.

The allegations of forgery were withdrawn on the fourth day of a five-day trial but otherwise the case proceeded on the pleadings. However, the learned judge said in his judgment that the issues were ultimately lack of testamentary capacity and/or undue influence. There was first a finding that testator lacked testamentary capacity in respect of all three 1973 wills and the learned judge went on to say that, if he was wrong on that, then he found that all the said 1973 wills were executed as the result of undue influence exercised by his wife, the daughters and appellant Rajendra Dutt Maharaj. Judgment was entered against the 1973 wills and probate in solemn form was decreed in respect of the 1965 will. Costs were awarded to respondent. From this judgment the present appeal has been brought.

We have come to a conclusion that this case should be referred back to the Supreme Court for a new trial so we will not deal with the evidence except to the extent that it is necessary to develop the grounds relative to that course. The finding that undue influence was exercised can be shortly disposed of. The learned judge held that it was for appellants to prove the non-exercise of undue influence and cited In re Craig deed. [1970] All E.R. 390 and Blomly v. Ryan 99 C.L.R. These cases deal with the equitable jurisdiction of the Court in respect of a gift inter vivos and a contract for sale of land where it was claimed the bargain was unconscionable and that there was constructive fraud. The comparison between such cases and testamentary instruments is epitomised by Viscount Haldane in Craig v. Lamoureux [1929] A.C. 349, 356 where his lordship says:

"...... a will, which merely regulates succession after death, is very different from a gift inter vivos, which strips the donor of his. property during his lifetime."

It is sufficient for our present purpose to cite from Williams and Mortimer on Executors, Administrators and Probate (1970 Edn. under Chap. 17) where the following passages appear:

"In equity persons standing in certain relationships to others are liable to have undue influence presumed against them in relation to certain transactions, e.g., a father benefiting from a child, a doctor from his patient or a solicitor from his client. In consequence the erroneous view has sometimes been formed, strengthened by a misapprehension as to the effect of the Judicature. Acts, that where the Chancery court would presume undue influence the Probate Court would do so likewise.

The error of this view is clear from Parfitt v. Lawless where Lord Cranworth's dictum in Boyse v. Rossborough `Undue influence cannot be presumed' was quoted with approval."

A comprehensive passage is set out on pages 159 and 160. This is taken from a charge given to a jury by Sir James Hannen in Wingrove v. Wingrove [1885] UKLawRpPro 46; (1885) 11 P.D. 81, 82. Two passages are pertinent:

"To be undue influence in the eye of the law there must be - to sum it up in one word-coercion."

"It is only when the will of the person who becomes a testator is coerced into doing that which he does not desire to do, that it is undue influence."

As to the burden of proof the learned authors say at pages 161 and 162:

"While the overall burden of providing a will lies on these who propound it, such burden is, in general, discharged by showing that the will was duly executed and that the testator had testamentary capacity. On these matters being shown, those alleging undue influence must prove it; for, as already stated., undue influence cannot be presumed. It is not sufficient to show that the circumstances attending the execution are consistent with its having been procured by undue influence, it must be shown that they are inconsistent with any other hypothesis:"

The learned judge made the following finding:

"In my view the circumstances attending the wills of June and September 1973 are such as to raise a presumption of undue influence exercised by the beneficiaries upon the testator. It is significant that the person who was omitted from those wills,' the nephew and adopted son, had been deterred from visiting the man who had been his father from childhood. Those who benefited were actually present i.e. within the flat when they were made and at least one of them, namely the de facto wife, had deterred the nephew from visiting the testator on what proved to be his deathbed."

He then went on to say that there was nothing in the evidence given by the defendants (appellants) to rebut the presumption of undue influence which arises in the circumstances. We are of the opinion that the learned judge wrongly applied the onus of proof so this finding must be set aside. However, the circumstances and evidence upon which the learned judge relied on are relevant to the question of alleged lack of testamentary capacity.

A convenient statement of the criterion of a sound disposing mind is set out in Williams on Wills 4th Edn at p.22. the passage reads:

"Sound testamentary capacity means that three things must exist at one and the same time:

(i) The testator must understand that he is giving his property to one or more objects of his regard;

(ii) He must understand and recollect the extent of his property;

(iii) He must also understand the nature and extent of the claims upon him both of those whom he is including in his will and those whom he is excluding from his will. The testator must realise that he is signing a will and his mind and will must accompany the physical act of execution. It is said that perversion of moral feeling does not constitute unsoundness of mind in this " respect, but this is really a matter of degree."

The learned author then cited the often quoted passage from Banks v. Goodfellow L.R. 5 Q.B. 549, 565.

The judgment in the Court below commenced with a short description of the immediate family, namely, the wife and daughters and referred to the respective wills and the allegations in the statement of claim (sic.) and then turned to the status of respondent. His lordship posed the following question.

"However, there is no evidence that the father-son relationship ceased or was strained. In fact the evidence which I accept points to its continuance. Why therefore should the testator's last 3 wills disinherit the nephew when in 1965 he was a beneficiary as to one third and a co-executor?"

In respect of the June 1973 will the learned judge turned immediately to the failure of the solicitor, who drew the will, to "inquire about relatives". The case of Batan Singh v. Amirchand (1948) 1 All E.R. 152 was cited. This was an appeal to the Privy Council from the Supreme Court of Fiji. It drew attention to the desirability, when a testator intended to disinherit a near relation, of sending for any previous will. That was a case where a testator gave his property to strangers in blood who had no claim on his bounty and testator was suffering from a delusion concerning the existence of nephews. There were positive statements by testator that he had no relatives. Later the learned judge quoted from the same case the following passage at p.152:

"Such behaviour was commented on by the Privy Council in Battan Singh v. Amichand 1948, 1 All E.R., 152 F who said:

"It is relevant to note that he failed to employ the solicitor who had acted for him previously or even to ask him to send the previous wills or copies of them, for these are precautions which a testator of sound mind who deliberately intended to alter his will and disinherit his near relations would naturally take.""

His lordship later said:

"There is no evidence that the solicitor who drafted the will questioned' the testator about the size of his family, or his close relatives, or any previous testamentary dispositions or the extent of his disposable possessions. According to the Privy Council supra those are considerations which help to determine whether a testator intended to disinherit a near relative."

In our view unwarranted weight was placed on this case. It bore no resemblance on its facts with the present case. We draw attention to Swansea Vale: (Owners) v. Rice [1911] UKLawRpAC 22; [1912] A.C. 238, 239 where Lord Loreburn L. C. said:

"Cases are valuable in so far as they contain principles of law. They are also of use to show the way in which judges regard facts. In that case they are only used as illustrations. What you want is to weigh probabilities, if there be proof of facts sufficient to enable you to have some foothold or ground for comparing and balancing probabilities at their respective value, the one against the other."

In our opinion the learned judge gave undue weight from the beginning to the end of his judgment on the failure of those propounding the 1973 wills to show why respondent should be disinherited. The question was too narrowly stated and over-emphasised to the exclusion of a balanced review of the competing claims and changed circumstances since 1965.

With the greatest respect he took a wrong view of the evidence of June and Olin.

He said:

"The daughters Olin and June both state that the deceased was in possession of his mental faculties until after the will of September 1973 was made. Like the plaintiff (nephew) they are beneficiaries and could be tempted to colour the evidence in their own favour."

The fact is that June and Olin took exactly the same share, namely one-third, under the 1965 will as they did under the two September 1973 wills. The only person who got a greater benefit was the wife who surely had to be carefully considered as one who might have a valid claim to his bounty greater than the life interest given in the 1965 will. This was at the expense of respondent's former one-third share. She had looked after her husband during a long and difficult illness whilst respondent had made his own way in life, had substantial assets and was well able to support himself and his family: This aspect was never considered by the learned judge. Conditions in the household had drastically changed since 1965.

His lordship placed great stress on the fact that testator "was absolutely dependent upon those around him" and that for the whole of 1973 he was dependent on his wife and daughters. This was referred to on a number of times in the judgment. One passage, in addition to one earlier cited, will give an example. The learned judge said:

"His wife and two daughters were in constant attendance on him and were in a position greatly to influence him having regard to his dependence upon them."

No consideration appears to have been given to the position of the family caring for a sick husband and father. Respondent had then long left the home and had successfully set himself up with his own family. Testator was now, in old age, sick and physically handicapped and was being attended to by his wife and daughters who nursed and cared for him with solicitude and kindness in the family home. A pejorative construction appears to have been placed on these services but no consideration was given to the probability that this might be a reason why testator might, in the changed circumstances since 1965, wish to give his wife a different share at the expense of respondent. The dominant inquiry throughout was why should testator disinherit respondent? No attack can be made on the inheritance of the daughters because this is the same in 1965 and in September 1973. The attack was made. The fact was that testator had preferred to give his wife a greater share in his estate at the expense of a reasonably well-to-do adult nephew who had been brought up as a son and at the same time to keep the interests of his daughters intact.

Viscount Haldane in Craig v. Lamoureux (supra) p.357 when speaking of a will made in favour of a husband and omitting two sisters of testatrix said that:

"There is no reason why a husband or a parent, on whose part it is natural that he should do so, may not put his claims before a wife or a child and ask for their recognition, provided the person making the will knows what is being done. The persuasion must of course stop short of coercion, and the testamentary disposition must be made with comprehension of what is being done."

The June 1973 will was dismissed in a few words. The learned judge said:

"I arrive at a similar conclusion for similar reasons in regard to the will of June 1973."

There was a period of three months between the wills. The evidence was not the same on each occasion. Testator was nearer to his death in September 1973. The evidence as to the situation in June 1973 ought to have been carefully and separately evaluated. It was not. A number of errors appear. Respondent's marriage was given as 1967 whereas it was 1957. This is relevant to the time when he left testator's home. Certain evidence of Olin was taken to refer to the September 1973 wills but she is clearly speaking of the June 1973 will. The evidence of Dr. Young was stated to refer to a period 4-2 months before death. This would be prior to the June 1973 will. The evidence was 4-6 weeks before death which brought it within the crucial period. A criticism of the June 1973 will was that it made no reference to any kind of property disposed. This is so in respect of all wills. In one passage the learned judge gives weight to the fact that testator made three wills in three months. Although three wills were signed there was only one substantial alteration made, namely, the exclusion of respondent and the giving of his former interest to the wife. There appears to be a good reason for replacing the June 1973 will. In it the family unit represented by Olin (by reason of a quarter share being given to her husband) took one-half of the estate. The September 1973 wills merely adjusted this imbalance and it further restored the right of the wife to occupy the home-a provision which was omitted from the June 1973 will. The family situation and control of the business had changed since 1965.

His lordship had, as we have already stated, early in his judgment posed the question why should testator disinherit respondent. With the greatest respect this question is unduly prominent throughout the judgment. When discussing the terms in the September 1973 wills which declared that no person other than the wife and daughters was entitled to benefit under the will, the learned judge said:

"Was the testator there saying these are the only persons who have ‘a claim upon me’ by way of close kinship? If so, it was not accurate because he had an adopted son who was also his nephew. Surely the latter, having been brought up as a son from childhood would have a moral claim on the estate. By statute an adopted child has the same rights as a natural child. On signing that will had the testator failed to recollect the adopted nephew? Did he intend to disinherit him?"

So to postulate that respondent surely had a moral claim tends to beg the question. The inquiry is not: did testator intend to disinherit respondent? It is whether testator understood the nature and extent of the claims on his bounty. Such claims ought to be examined in the light of the nature and extent of his then estate and the relative claims on that bounty as they existed in 1973. The estate appears to be substantially limited to or linked with the business interests of testator. Respondent was no longer so closely associated with them and family affairs had changed since 1965. Respondent was financially independent and had an occupation unrelated to testator's business and a separate home. The care and attention of testator by the wife and sisters since 1965 and particularly during the illness of testator had since intervened. The desirability, or otherwise of giving respondent a share in the business at this stage is not unimportant. It was after all the means of providing for the wife and June who was a widow. The long standing shares of the daughters were not altered. What testator did was to give his wife a greater share at the expense of respondent who appears to be well circumstanced financially. Relationship of itself does not create a so-called moral claim. The elimination of a relative when there are competing claims is not the equivalent of a wrongful denial of a moral claim. All the relevant circumstances must be looked at. This aspect of the case was not sufficiently considered.

The nursing and care given by the wife and daughters in the home was not properly weighed. Indeed, what was a normal family set-up in the circumstances, was given excessive weight as an opportunity to over-bear testator. Except for evidence of exclusion of respondent from visiting testator, the home was a normal one in the circumstances to which visitors came freely and doctors were called and attended testator as well as the solicitors and clerks involved in the said 1973 wills. There was no complaint from testator about his treatment at the hands of his family. The learned judge appeared to look with disfavour on the question of hospitalisation of testator. Dr Young recommended that testator be taken to hospital for his then physical state. The learned judge blamed "the family" for not "responding". No attention was given to the evidence of Dr Gounder who said hospitalisation was not necessary. Yet Dr Gounder's evidence was treated as the yardstick by which other witnesses were tested. It is impossible to know why an adverse comment was made when the actions of the family were in accordance with the opinion of Dr Gounder. An adverse construct was put on evidence of an inquiry by testator who asked if "they" that is the family, were satisfied with the will. This is at worst equivocal and may well indicate that testator did know what he had done.

Upon a full consideration of all the above matters, and, after fully reviewing the evidence and judgment as a whole, we are of opinion that it is impossible for this Court to come to a conclusion on the record. The proper remedy is to order a new trial. The judge at the new trial will disregard all our comments on the evidence. We have not purported to evaluate the weight of evidence or the relative importance of any matters in the ultimate determination of the issues. These are all questions entirely for the judge at the new trial in the light of the case then put before him by the parties.

The only ground of appeal that requires mention is ground one which deals with the learned judge's ruling that appellants should begin. This ground, and the relevant cases and rules, were discussed at the Bar. We agree with the ruling of the learned judge. Appellants had the initial burden of establishing the will of June 1973 which they set up as revoking the 1965 will and of establishing the second will of September 1973 which they set up as the last will of testator. Counsel elected to call evidence on all issues and therefore the correct procedure was adopted. We do not find it necessary to say anything further because the judge at the new trial will be called upon to rule on the situation as it presents itself before him.

The appeal will be allowed and the judgment in the Court below will be set aside and a new trial will be ordered. Respondent will pay the costs of the appeal. Costs in respect of the first trial are reserved for determination by the judge presiding over the new trial.

Appeal allowed, retrial ordered.