Singh v Singh; Estate of Hari Bhajan Singh

LEGISLATION CITED : Wills Probate and Administration Act 1898, s 29A

Brown v McEncroe (1890) 11 LR (NSW) (Eq) 134 Doe d Wall v Langlands (1811) 14 EAST 370; 104 ER 644 In re Suisted [1933] NZLR 119 CASES CITED : Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151 Re Barker [1995] 2 VR 439 Re Page [1969] 1 NSWR 471; (1969) 90 WN (Pt 1) (NSW) 6 Re Resch's Will Trusts [1969] AC 514 Tatham v Huxtable (1950) 81 CLR 639

Rajindar Singh (P) PARTIES : Suraj Kumari Singh (D1) Masotu Pty Ltd (D2)

COUNSEL : G A Rich (P) D Murr SC and J Heazlewood (D)

SOLICITORS : Harish Prasad and Associates (P) Lewarne & Goldsmith (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

P102787/08 -SINGH v SINGH; ESTATE OF HARI BHAJAN SINGH JUDGMENT 1 HIS HONOUR: This probate suit concerns the estate of the late Hari Bhajan Singh who died on 17 August 2006. Although there is some material which might indicate to the contrary in the evidence, both parties are agreed that the deceased died domiciled in New South Wales and I will proceed on that assumption as they have had full opportunity to investigate all the facts. 2 The deceased left a family consisting of his widow, the first defendant, Suraj Kumari Singh, his three daughters, Sasha, Anjil and Premeel, and his son, the plaintiff, Rajindar. Rajindar had a son from his first marriage, Ravi, born on 8 September 1989, and so is now 19, and both those two men lived with the deceased. The second defendant is Masotu Pty Ltd, which is the trustee of a discretionary trust set up by the deceased. 3 The deceased died owning property in New South Wales, principally being: (a) $450,000 on deposit with the Westpac Bank; (b) shares in the family trust company of nominal value; and (c) loans, one owed by the family trust company for $3.2 million and two by Rajindar repayable in 2022 totalling $70,000. 4 The deceased also owned property in Fiji. This principally was 13,000 or 87 percent of the shares in a Fijian corporation H B Singh (Fiji) Ltd. The remaining 2,000 shares were owned by the deceased's widow. The company formerly traded in electrical products and components. It no longer trades, but it has assets of about $2.4 million Fijian. 5 The trust was set up in October 1980. Since the deceased's death, about $1 million has been distributed to the deceased's children. The assets of the trust currently consist of two factory premises with a combined value of about $800,000 and a further $800,000 in various cash management accounts. 6 The problem which the court faces is that on 23 January 2004 the deceased made a will in New South Wales which said, inter alia, that "the whole of my property both real and personal of whatsoever nature and wheresoever situated" was to pass to his widow. Probate of that will in common form was granted by this Court to the widow on 21 December 2006. 7 On 10 February 2004 the deceased flew to Fiji. On 27 February 2004 he executed a further will in Fiji. This will left "my 50% shares in H B Singh (Fiji) Ltd" to Rajindar and Ravi in proportion of 70 percent and 30 percent respectively" and "the residue of my properties" to the widow. On 26 January 2007 the High Court of Fiji granted probate of that will to the widow. It has not been the subject of a grant so far in New South Wales. 8 It would appear that in December 2006 and January 2007 the solicitors concerned, both in New South Wales and Fiji, took the view that the January will applied to NSW assets and the February will to Fijian assets. However, that solution is now hotly disputed in the current litigation. 9 The current litigation involves an application by the plaintiff Rajindar, the deceased's son, for an order that the February will applies so that it revokes the January will and operates over property of the deceased wherever situate. The first defendant, his mother, contends that the January will applies to the property apart from the property in Fiji and that the February will only applies to the property in Fiji. 10 The present litigation actually throws up three issues.

1. Does the February will revoke the January will or does the February will apply to Fijian property and the January will apply to Australian property only?

2. Constructions issues, viz: A. On the true construction of the February will, what is meant by "my 50% shares in H B Singh (Fiji) Ltd? B. On the true construction of the February will, what is meant by "my properties"?

3. Has any case been made for the rectification of either will? 11 I will deal with each of these matters in turn, however, the first matter that needs consideration is the background facts and I will deal with these before focusing on the core issues. 12 The evidence discloses that the deceased primarily lived in Sydney and he constantly retained Mr David Lewarne, a partner in the Parramatta firm of Lewarne & Goldsmith as his solicitor. Mr Lewarne believes that his first contact with Mr Singh was in 1997 when the trustee company purchased factories at Castle Hill. The deceased asked Mr Lewarne to prepare wills for himself and his wife in 1998 and he did so and the wills were signed on 12 May 1998. He again saw Mr Lewarne with respect to his trusts in 2000 and the wills were revised in connection with the variation of the trust. 13 In February 2003 Mr Lewarne received instructions to revise the wills. He said that these wills did not vary significantly from the previous wills save in increasing the time at which the grandson should inherit from his 21st birthday to his 25th birthday. He says that at that time the deceased asked him whether he would hold all the original documents in safe custody on his behalf. He said he would uplift the documents and bring them in and he did so. 14 There was a considerable amount of evidence as to whether Mr Singh had told people that he had wills in both New South Wales and Fiji. Mr Lewarne was cross-examined and he gave evidence that he had been told that in 1998 and he had also seen the Fijian will of 2002 when documents had been delivered to him for safekeeping. 15 Mr Rich, who appeared for the plaintiff, said that there was considerable significance that so little had been told to Mr Lewarne who was the key solicitor for the deceased in Sydney. However, it does seem abundantly clear that Mr Lewarne was aware that there was a Fijian will of 2002 dealing with Fijian property. Mr Rich says that that was 2002 and the will was being made in January 2004 and things could change. So they could, but the odds are they didn't. 16 Secondly, he says that it is rather odd that if Mr Lewarne did have that in his mind and the testator had it in his mind the January 2004 will was drawn in the way it was. That is a valid point, but it has to be weighed against the other points. 17 Mr Goldsmith took over from Mr Lewarne when the latter retired from practice in December 2005. The deceased was happy for Mr Goldsmith to act for him and there was quite a long conference between the deceased and Mr Goldsmith about his will and other affairs on 11 August 2006. They spent over an hour together in conference. The then current New South Wales will made by the deceased and his wife were discussed. Mr Goldsmith gave evidence that he had the firm's deed packet which consisted of copies of wills including Fijian wills. A very small part of the conference concerned the Fijian wills, but he does remember the deceased saying: "I have changed the solicitors in Fiji and made a new will for over there. That is something you don't have to concern yourself with. My solicitor in Fiji has our original wills for Fiji assets." Unfortunately, the deceased became too ill to complete the conference and he died about a week later without altering his will. 18 Mr Rich challenged Mr Goldsmith's recollection. He put that Mr Goldsmith had made no meaningful notes, that what had happened was an aborted situation in 2006 and that there was no guarantee that Mr Goldsmith had remembered the remark about the solicitors in Fiji. However, Mr Goldsmith gave his evidence with clarity and there did not appear to me to be any suggestion that he was inventing things by reconstructing what must have happened and I will accept his evidence. 19 Evidence was also called from two of the solicitors who were retained by the deceased in Fiji, Mr Anu Patel and Mr Vijay Naidu. There were arrangements made for Mr Patel to be cross-examined by videolink, but, unfortunately, the electronic systems have let us down and it was not possible for that cross-examination to take place. However, because of a sensible arrangement between counsel, I was able to read most of Mr Patel's evidence despite the fact that he was not cross-examined. 20 Mr Patel swore that he had commenced to act for the deceased in 1985 and, amongst other things, he had prepared wills for the deceased in 1998 and 2002. Mr Naidu moved to Fiji from the ACT in 2003. He became friendly with the deceased. He swore that the deceased called on him in February 2004 and asked him to make a will for him. Mr Naidu said that: "It is not my recollection that at the time I took instructions for the will from Mr Singh that I saw a copy of any previous will he had made either in Australia or Fiji. I recall he also said to me: 'I have a family trust in New South Wales. I just want to have a will done for Fiji only.' " 21 He also says that looking at the will it does not contain his standard clause dealing with residue of whatsoever kind and wheresoever situate. He said he didn't give any thought to putting a clause in the will that specifically said that it related to property in Fiji. He never had this situation before and, indeed, this has been his only time. 22 In his second affidavit, Mr Naidu gave evidence as to the bequest of the 50 percent shares. He said that he read the will over to Mr Singh in Hindustani prior to him signing it. He said there is a different way of explaining the words "my 50 percent shares" and the words "50 percent of my shares" in Hindustani. He gave the Hindustani for each expression, which there is no need to repeat. He said: "I consider the words 'my 50 percent shares' in the will to be a mistake. I did not pick it up at the time the will was drafted or at the time I read it to Mr Singh. I never knew what his percentage shareholding in H B Singh (Fiji) Ltd was before he died. If I had translated the words 'my 50% shares' in that form I would have recognised my mistake. I therefore believe that it is more likely than not that I translated those words as '50 percent of my shares'. As to clause 5 of the will, I would have said in Hindustani, 'Bacha Kucha to my wife', which means 'whatever else to my wife'. I would not have translated the word 'properties'." 23 There was some difficulty about admitting that material on questions of construction. Counsel have not been able to refer me to any authority where a will is written in English, the testator understands English and the solicitor reads and paraphrases the words in the will to the testator in another language, as to whether what the solicitor says can be used as evidence on construction. 24 I have some doubt about the matter, but it seems to me that even though what the court is doing is construing the written words, the exercise is to find out what the deceased meant by the words in his will and if they were translated to him in Hindustani in a paraphrased form, then I can use that material to work out what the words written on the paper meant for that particular testator. In other words, in my view, they are admissible on the construction issue. It matters very little because if I was wrong on that then the evidence was certainly admissible as to whether the will should be rectified to be in accordance with the way in which it was paraphrased. 25 There was other background material to which I should refer briefly. Before the will of 1998 was made the deceased had consulted financial planners. They, through the witness Mr Dubler, presented an estate plan and the estate plan contained a statement that the testator's then intention was that his shares in H B Singh (Fiji) Ltd were to be given to his son who would be able to continue to operate the business conducted by that company. Mr Lewarne drafted the will taking full note of what the estate planning report had said. Furthermore, the will which was drafted by Mr Patel in Fiji in 2002 made provision so that if the widow survived him for a month, she would have all the shares in H B Singh (Fiji) Ltd, but if she failed to survive him for a month then the shares were to be sold and 70 percent of the proceeds given to Rajindar and the other 30 percent to be used to maintain and educate Ravi until he attained 25 and then to be paid to him. All of those provisions run contrary to the current February 2004 will whose construction I will come to shortly. 26 Mr Rich put that the deceased's intention always was that his son have control of the Fiji business and the shares which would go to secure that control and that in fact the son was managing the business. Apart from the changes to the wills, which I have already noted, the evidence of one of the daughters of the deceased, Premeel Kuar Singh, was that shortly before her father's death he entreated her to come over and see him and said to her, in circumstances where he first secured absolute privacy from his son: "Should something happen to me, the paperwork is in all these files in this filing cabinet. I want you to be the one to take over the paperwork because Mata won't be able to. [Mata was the affectionate name given to the widow]. Jindar [which referred to the plaintiff] won't look after Mata, he will want control. I want you to make sure that Mata stays in control of what's hers." 27 He also said to her at some stage: "I have two wills. One in Fiji and one in Australia. I have left everything to Mata, but I have left Jindar and Ravi some shares in Fiji because I couldn't expect them to go back and look after the business and not get anything from it. Mata won't be able to look after the business anyway." He then repeated: "Make sure what's Mata's stays in her control and if it gets hard, don't give up." 28 That does seem to indicate that the deceased was not intending to give his son all his shares, however, this material is only admissible on the issue of revocation and of rectification and I do not consider it nor do I use it as material that can be used on construction. Although Mr Rich put that I should prefer Mr Dubler's evidence to the daughter's evidence, I cannot see any reason for doing so. Especially as, with respect, there was only very light cross-examination on that particular issue and it is also clear that things had changed quite considerably since Mr Dubler had given his report at the end of 1997. 29 Having now set the background facts, I will turn to the precise matters I have to decide. The proceedings commenced before me on 7 July 2008 and continued on 8 July 2008. As I have said, Mr G A Rich appeared for the plaintiff and Mr D Murr SC and Mr J Heazlewood appeared for the defendants. All witnesses other than the attesting witness to the February will were cross-examined save that the witnesses in Fiji who were intended to be cross-examined, for technical reasons were not able to be cross-examined, but I do not think this really matters. 30 Mr Murr put that the background facts which I have basically related show that the deceased was a very careful businessman who took seriously his testamentary responsibilities. Mr Rich, on the other hand, did not gainsay that the deceased was other than a careful businessman, but said that when one looked at the documents, when one saw the actual terms of the Fijian will which revoked all previous wills, it was quite obvious that he did not completely appreciate the solemn acts that he was doing and that the Fijian will of February 2004 was the last will and displaced the January will because it clearly on its face, revoked it. 31 The first issue, as I have said, is whether the February will revoked the January will or whether the February will applied to Fijian property and the January will applied to Australian property only. Mr Murr said the test to be applied in this sort of case was that laid down by Tadgell J in Re Barker [1995] 2 VR 439 at 445 to 446. At 446 Tadgell J said: "The very existence of a revocation clause in a will is, however, prima facie solemnly eloquent of the testator's intention. Evidence sufficient to rebut it must be clear and unequivocal. Nevertheless, if there is receivable evidence which is sufficient to rebut it, there can be no doubt that it is the duty of a court of probate to give effect to it." 32 In this Court in Re Page [1969] 1 NSWR 471; (1969) 90 WN (Pt 1) (NSW) 6, Helsham J reached a similar rule to apply in this sort of case, at pages NSWR 474-475, WN 11: "The fact that a deceased says in the document which he executes as a will that it is to constitute the whole of his testamentary dispositions to the exclusion of any other instruments (for example, by describing it as his will and by including a revocation clause) is a factor which bears upon the proof of whether he intended it to contain the whole of his testamentary dispositions. Normally it is cogent evidence from which the factum of intention can be inferred and will operate to displace other evidence of intention, or at least to outweigh it; for a court will place great weight upon what a deceased person has said in his own formal legal document as to what his intention was in executing it; it is normally the best evidence from which his intention can be inferred. But it is not necessarily conclusive proof of a deceased's intention. If it is established by evidence that a particular instrument was not intended by a deceased to contain the whole of his testamentary dispositions, then notwithstanding that the instrument itself has words in it from which it might be inferred that the deceased did so intend, these words will not be allowed to prevail in some cases so as to defeat the true intention. Such cases occur when it can be shown that the words in it do not reflect the deceased's intention at all ... ." 33 The question is really a question of fact. Though, as Mr Rich emphasised, the question is one where a person who has a testamentary document which says that everything else is revoked starts ahead. However, Langton J said in Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151 at 157: "It really is a question in each case for the Court to decide: Is there evidence, and sufficient evidence, to establish that the testator did not intend to revoke? I do not think really the law is more complicated than that." 34 In Re Resch's Will Trusts [1969] 1 AC 514 at 547, Lord Wilberforce, when giving the reasons of the Privy Council, said: "In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation." 35 Accordingly, the question that is posed is whether on the whole of the evidence the testator intended that the February will was to revoke the January will. 36 Despite the strong arguments which Mr Rich has put for the contrary proposition, to my mind, the whole of the evidence goes one way. Mr Singh was an astute businessman who amassed millions of dollars of assets. He commuted between Australia and Fiji. He employed lawyers in both Australia and Fiji. When he made a will in Australia, shortly after he intended to make one in Fiji, he told his Australian lawyer, and I accept the evidence of Mr Goldsmith on this, that he need not worry about Fiji because that was dealt with elsewhere and he told Mr Naidu, and I accept that evidence, that he need not worry about New South Wales because that was dealt with separately. Furthermore, when one reads both the January 2004 will and the February 2004 will, there are very considerable problems if one does not read them in the way of one applying to New South Wales and the other applying to Fiji. 37 There is a presumption against intestacy. Mr Rich said that that is only a very weak presumption and there are authorities which would support that statement, but, to my mind, it would be almost unbelievable for a sane sensible businessman to make one provision in January and a completely different provision in February. To my mind, all of the evidence shows that the January will was to apply to the Australian property and the February will to the Fijian property or, perhaps to put it more precisely, that the Fijian will was to vary the Australian will only so far as the Fijian property was concerned and only to operate as a revocation insofar as there were previous provisions dealing with Fijian property. 38 Accordingly, I find that the February will did not revoke the January will, but that, subject either to omission of the revocation clause or the court making a declaration as to the effect of the revocation clause, it should be admitted to probate together with the January will and I will refer the matter to the Registrar to complete the grant.

2A. What is meant by "my 50% shares in H B Singh (Fiji) Ltd"? 39 The possibilities are that it means 50 percent of the shares which were owned by the deceased, 50 percent of the whole of the issued shares, or a hundred percent of the deceased's shares. 40 The second possibility was not contended for by either side. Mr Rich put that 50 percent was merely a mistake and that it was clear from the evidence that Mr Naidu thought that the shares were held equally by the deceased and his now widow. He was wrong in that, but that caused the will to be drawn in the way it was. It is possible to construe a will by treating something that was stated as just a pure mistake and leaving it out all together, and in this connection Mr Rich relied on the decision of the High Court in Tatham v Huxtable (1950) 81 CLR 639. 41 Yes, it is possible, but it is unlikely. People usually do not put things in their testamentary documents and solemn documents without some purpose. The more likely view, especially in the light of the evidence of Mr Naidu as to how he translated the will into Hindustani, but even apart from that, is that the testator intended that the son should have some of his shares, but not all of his shares and so the 50 percent has become misplaced and what the testator meant was "50 percent of my shares". So that 50 percent of the shares in the company pass as to 70 percent of 50 percent to the son and 30 percent of 50 percent to the grandson subject to the trusts of the will. 42 I will just leave it as "subject to the trusts of the will" because, with respect to Mr Naidu, paragraphs 4(iii) and 4(iv) of the will don't quite make sense, but I have been deliberately asked not to get into this particular area. If I were wrong on that matter, it would seem to me that when one takes into account Mr Naidu's evidence of his paraphrase and the evidence of Premeel Kuar Singh, that the will would need to be rectified to make that result clear.

2B. On the true construction of the February will what is meant by "my properties"? 43 It may well be that my judgment to date means that this is no longer a live question. Submissions were addressed to me that the word was "properties", not "property" and that we were not dealing with a standard residue clause, but were dealing with a specific clause. There is some support for that submission in the New Zealand decision of In re Suisted [1933] NZLR 119 where Herdman J did find it most significant when a testator had used the word "properties" in the will rather than "property". However, there, the testator had given "all his properties, stock and moneys" to X and the question was whether that covered furniture, a life insurance policy and shares. The learned judge held that the words "stock and moneys" had limited what properties meant. However, he did make the point that even though the person who says "all my property" means to give all his property both real and personal (see, for instance, Doe d Wall v Langlands (1811) 14 EAST 370; 104 ER 644) that method of interpretation would not normally be carried over where the word is "properties". 44 Both counsel were agreed that the word "properties" in ordinary usage meant land, however, that does not mean that in any particular will the testator does not use it in some special sense. 45 It is unusual for a will not to contain a residue clause. The affidavit of Mr Naidu shows that he contemplated a usual residue clause, but did not think he could use it because he was worried about the fact that it was only a will dealing with Fijian property. He did, however, include "the gift of my properties" to the widow and there is no residue clause. It would be, despite Mr Rich's submission that the presumption against intestacy is only a weak one, very odd indeed that a man who would go to all this trouble in a large estate would mean to die intestate and, accordingly, in my view the words "my properties" must mean "my other property". 46 3. So far as rectification is concerned, it does not seem to me that in view of what I have already said I need to go into this area. However, as I have already hinted, it is abundantly clear that if I am wrong on my construction of the will that section 29A of the Wills, Probate and Administration Act 1898 should be employed to rectify the will to get the same result. 47 So that, accordingly, probate in solemn form should be granted to the first defendant of the wills of both January and February 2004 and I refer the matter to the Registrar in Probate to complete the grant with liberty to apply. 48 I discharge orders 1, 2 and 3 made by Barrett J by consent on 6 November 2007. 49 Since saying what I have said on the merits, questions of costs have been argued. The principal argument of Mr Rich was that prima facie the will of February 2004 meant what it said and revoked the earlier will and it was the fault of the testator that has led to this litigation and, accordingly, as was said in Brown v McEncroe (1890) 11 LR (NSW) (Eq) 134 at 145, and followed many times since, the estate must bear all the costs of both parties. 50 However, as I have said in my earlier judgment, whilst it is true that a person who has the benefit of a revocation clause starts ahead, the whole question is a question of fact. Even if the plaintiff had reasonable doubts when the proceedings were commenced as at the end of January of this year, he had available virtually all the evidence that would be called against him. He called no evidence, he asked no interrogatories and the matter proceeded to trial and every witness, with some immaterial exceptions, was cross-examined and every statement was challenged. 51 Had the plaintiff come to the court at the end of January and said: "Well, look, I have seen it all now and I don't want to go any further", there would have been quite a strong case for having the costs of all parties being borne by the estate, but certainly not after that time. There is a common fallacy that whenever there is an argument about a will, somehow or other the estate must pay the costs for everybody. That has never been the law. 52 The situation is, in my assessment, this is basically adversarial litigation. However, there were problems caused by the deceased such as the fact that the two wills were made which did not explicitly indicate that they were confined to particular territories and there are other infelicities of expression in them. I think that that just amounts to a discount of, say, 25 percent of the costs which would have been the situation had the plaintiff acknowledged the inevitable in January. 53 Accordingly, I think the proper order for costs is that the plaintiff pay 75 percent of the defendants' costs of the proceedings. Of course, the executor under the revoked grant is entitled to her costs as between her and the estate out of the estate in the normal way. I do not need to make an order for that. 54 The exhibits will go down to the probate office to be dealt with in accordance with the Registrar's orders and I will formally reserve further consideration.

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