Narsi v Bhindi; estate of Kalyanji [2008] NSWSC 1160

New South Wales Supreme Court

CITATION : Narsi v Bhindi; estate of Kalyanji [2008] NSWSC 1160

HEARING DATE(S) : 15/10/08

JUDGMENT DATE : 15 October 2008

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 15 October 2008

DECISION : See para 58 of judgment.

CATCHWORDS : WILLS AND PROBATE – informal wills – testator did not sign in the presence of both witnesses – clear that document was intended to operate as a will and embodied the testamentary intentions of the deceased - WILLS AND PROBATE – rectification – clause distributing corpus was removed by testator in preparing a new will without legal advice – clear evidence that testator intended corpus to pass in the same proportions as income – clear evidence that testator intended to remove period postponing distributions of capital stipulated in previous wills – will rectified

LEGISLATION CITED : Wills, Probate and Administration Act 1898 (NSW) Evidence Act 1995 (NSW)

CASES CITED : Rawack v Spicer [2002] NSWSC 849

Ramesh Narsi & 1 Or PARTIES : v Dhanesh Bhindi & 6 Ors; the estate of Prabhudas Bhindi Kalyanji

FILE NUMBER(S) : SC 118838/07

COUNSEL : Plaintiffs: M Lawson Defendants: J Xenos (sol'r)

SOLICITORS : Plaintiffs: Redmond Hale Simpson Solicitors Defendants: Xenos Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Wednesday, 15 October 2008

118838/07 Ramesh Narsi & 1 Or v Dhanesh Bhindi & 6 Ors; the estate of Prabhudas Bhindi Kalyanji JUDGMENT 1 HIS HONOUR: Mr Prabhudas Kalyanji Bhindi died on 12 September 2006 aged 83. The deceased left an estate valued for probate purposes of $3,635,650.95. He had seven children. In 2006 their ages ranged from about 34 to about 57. Between 1987 and 2004, the deceased made at least 13 wills. The last three were made in 1999, 2002 and 2004. The 2002 will has not been located although it is clear from unchallenged evidence from a Ms Proops that such a document existed. A signed copy of the 2004 will has not been produced, but again it is clear from Ms Proops' evidence that on 21 May 2004 the deceased made a will in terms of the unsigned document which has been produced. 2 The plaintiff seeks first a declaration that the document dated 9 February 2006 purporting to be the last will and testament of the deceased was intended by the deceased to constitute his will within the meaning of s 18A of the Wills, Probate and Administration Act 1898 (NSW), secondly, an order pursuant to s 29A of the Act rectifying the will to provide for the distribution of the corpus of the estate, and thirdly a grant of probate in solemn form of the document to be declared to be a will as rectified. 3 The facts are not in dispute.