Fort a losing battle?

In previous posts, we have covered some Wills disputes in Hong Kong. However, the phenomenon of large estate battles is by no means exclusive to Hong Kong. The recent Indian case concerning the estate of Raja Harinder Singh Brar Bans Bahadur is another case in point.

The son of Maharaja Brij Inder Singh left an estate estimated to be worth some USD4bn and the case centred around the validity of a Will allegedly executed in 1982. The estate is said to include a 350-year-old fort. The Will in question left the entire estate to a trust fund set up by the Raja's servants and palace officials. The Raja's eldest daughter challenged the Will on the basis that it was a forgery i.e. that he had never in fact executed it. She also questioned his mental capacity around the time of execution and suggested that undue influence may also have been at play.

The Judge found that the mistakes in the body of the Will show that the person who executed it was not of sound mind. He highlighted in particular a spelling mistake: "harrograph" instead of "holograph". He went on [all sic]: "We should not loose the site of the fact that the Will under question is allegedly executed by a Raja of an empire not an ordinary person."

The Judge highlighted a number of other aspects of the case which he believed to be unusual, such as the why one of the attesting witnesses was called and by whom given that she had no connection to the Raja. He also noted that no explanation had been forthcoming as to why the Raja had not left anything to his eldest daughter, as well as placing emphasis on the Raja's depression following the death of his only son a few months before the alleged execution of the Will. He found that the propounders of the Will had failed to dispel these suspicions.

Accordingly, the Will was set aside and the estate was inherited equally by the Raja's two eldest daughters, being those entitled under the Hindu Succession Act.

Although the judge's approach is not entirely clear from the judgment, it appears that he was prepared to take a broad brush approach to the issues before him. Rather than focus (for example) on the specific test for any particular cause of action, he was happy to draw inferences from the surrounding circumstances which he clearly regarded with a great deal of suspicion: "I am of the considered view that it is the duty of the propounder to dispel all suspicious circumstances where are pointed out by the adverse party" and "there are large number [sic] of suspicious circumstances from which it can be inferred that the Will in dispute is an invalid document." His approach can be contrasted with that which a Hong Kong or English Court would usually take. For example, on mental capacity issues, judges in Hong Kong or England tend to take a more strict approach to applying the limbs of the Banks v Goodfellow test. In broad terms, the application of the test in Banks v Goodfellow determines whether the Testator could understand (a) the nature of the documents he or she was signing (i.e. that it was something that would take effect on death and what its effect was); (b) the nature and extent of his or her assets (in broad terms and not to the last dollar); and (c) the people who might have "moral claims" to his or her estate (i.e. the people who might sensibly be expected to be considered as someone who might be left something).

If you wish to discuss please contact Gareth Thomas or Richard Norridge.