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

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

There is clear proof that the testator intended capital to be distributed in the same proportions as income and that omission of such a clause was a mistake; the will should be rectified under s 29A to reflect this intention.

Parties
Plaintiff: Ramesh Narsi; First Defendant: Dhanesh Bhindi; Estate: Prabhudas Bhindi Kalyanji (deceased); Defendant: Sujata; Defendant: Shobha; Defendant: Nirupa; Defendant: Malti; Defendant: Sulaksha; Defendant: Ajita
Jurisdiction
Australia
Judgment Date
15 October 2008
Procedural Posture
Wills and Probate – Rectification Application / Judgment on Rectification and Grant of Probate
Outcome
Orders made: will declared valid under s 18A, rectified under s 29A, probate granted, costs orders made.
Legal Topics
Informal Wills, Rectification of Wills, Execution Requirements, Intention of Testator
Equity Wills and Probate Informal Wills Rectification of Wills Execution Requirements Intention of Testator

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Parties

Ramesh Narsi

Plaintiff

Dhanesh Bhindi

First Defendant

Prabhudas Bhindi Kalyanji (deceased)

Estate

Sujata

Defendant

Shobha

Defendant

Nirupa

Defendant

Malti

Defendant

Sulaksha

Defendant

Ajita

Defendant

Procedural Posture

Wills and Probate – Rectification Application / Judgment on Rectification and Grant of Probate

Legal Issues

  1. 1 Whether the document dated 9 February 2006 was intended by the deceased to be his will within the meaning of s 18A of the Wills, Probate and Administration Act 1898 (NSW)
  2. 2 Whether the Court should rectify the will under s 29A to include provision for the distribution of the corpus of the residuary estate

Ratio Decidendi

There is clear proof that the testator intended capital to be distributed in the same proportions as income and that omission of such a clause was a mistake; the will should be rectified under s 29A to reflect this intention.

Court Disposition

Orders made: will declared valid under s 18A, rectified under s 29A, probate granted, costs orders made.

Orders

  • Declare the document dated 9 February 2006 as the will under s 18A Wills, Probate and Administration Act 1898 (NSW)
  • Grant leave under s 29A(3) to apply for rectification out of time