Ahluwalia v Singh & ors All ER (D) 113

Analysis

The claimant was the daughter of Mr Gurwak Singh (the deceased), who died on 23 March 2009. The first defendant was the deceased’s son and had obtained a grant of probate of what he claimed was the deceased’s last will, which was dated 3 May 1999.

The claimant brought an action seeking an order for revocation of the grant of probate, pronouncing against the purported will and for the appointment of an independent person to administer the estate. The action was brought on the basis that the purported will had not been properly executed pursuant to s9(c) of the Wills Act 1837, on the grounds that the deceased’s signature was not made in the presence of two witnesses present at the same time. In particular, it was the claimant’s case that Mr Singh signed the will in the presence of one of the witnesses, G, but that another of the witnesses, A, was not then present and that the deceased must have subsequently obtained A’s signature.

The will contained an attestation clause in the following terms:

‘Signed by the above named testator as his last will in the presence of us both present at the same time who in his presence and at his request and in the presence of each other have here-unto subscribed our names as witnesses.’

The consequence of the will being pronounced against would have been that the deceased was intestate and therefore his estate would be divided between his six children, including the claimant and the first defendant. This differed sharply from the provision under the will, which divided the deceased’s residuary estate between his three sons and only gave his daughters legacies of £20,000 each. The first defendant and the deceased’s two other sons decided to actively oppose the claim.

However, none of the sons advanced any positive case as to the circumstances in which the will came to be signed by the deceased and the witnesses. It was their case that the claimant’s evidence that the will had not been executed in accordance with s9(c) of the Wills Act 1837 did not amount to evidence which was not strong enough to rebut the presumption of due execution conferred by the attestation clause and the signatures of the witnesses.

The claim proceeded to trial and the judge heard evidence from a number of persons, including A, G and the claimant.

Held (granting the relief sought by the claimant)

1. (1) The law as to the presumption of due execution had been restated by the Court of Appeal in Sherrington v Sherrington [2005] WTLR 587. The court had held, in line with earlier authorities, that ‘the strongest evidence’ was required to rebut the presumption of due execution. In Channon v Perkins [2006] WTLR 425, the Court of Appeal had explained the reasons for this. The two reasons were (i) that oral testimony as to the way in which a document was executed many years ago was not likely to be reliable on many or indeed most occasions and (ii) it should require strong evidence to displace the apparent wishes of a testator as expressed in a will that appeared to be property executed on its face. Sherrington and Channon applied.
3. (2) What amounted to the ‘strongest evidence’ in any particular case depended on the totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court was required to look at all the circumstances of the case relevant to attestation: Channon per Arden LJ at para [45] applied.
5. (3) The research of counsel had not disclosed any reported case in which the presumption of due execution had been successfully rebutted.
7. (4) The events which led to the execution of the will in the present case were as follows. The deceased had given instructions for the will to a firm of will writers and in particular to J, who was trained in the formalities of executing wills. Once the will had been drafted, it was given by J to the deceased for execution. If J’s normal procedures had been followed (she could not be traced in order to give evidence), the deceased would have been given an explanation as to how the will should be executed.
9. (5) While the deceased spoke good English (which was not his first language), he was capable of getting the wrong end of the stick about things said to him. The evidence further showed that the deceased was not always meticulous: there were a number of errors on the face of the will, his record-keeping was not perfect and he had got into a muddle over the purchase of a car. The deceased was therefore capable of getting things wrong or cutting corners.
10. (6) G was a neighbour of the deceased who had become good friends with him and assisted him with a number of matters over the years. G’s evidence was that he did not sign the will in the presence of any person other than the deceased. He stated that although he had heard of A, he had never met him. A was a sikh and it was his practice at all relevant times to wear a turban. G’s clear evidence was that no one with a turban had ever visited his house and nor had he ever visited A’s house.
12. (7) The claimant’s evidence was that she had had conversations with A in which he had said that he was alone when he had witnessed the will. A signed a statement prepared by the claimant confirming this version of events, some amendments to this having been made by him. However, A then produced a second statement which alleged that in fact G had been present when he witnessed the will. He said that what he had signed in the first statement was incorrect and that he had signed it under pressure from the claimant.
14. (8) The court was confident that events had occurred as G described them, even if it was clear that his sympathies lay with the claimant. Further, the claimant was not someone who was setting out to tell a false story, although there were weaknesses in her evidence. A was the least satisfactory witness, owing in particular to demonstrably false evidence he had given about an alleged meeting he had had with G independent of the occasion on which they had allegedly witnessed the will together.
16. (9) Evaluating the evidence as a whole, it was possible that the deceased had not understood the instructions from the will writers regarding execution or that he had cut corners. It was most unlikely that G would have forgotten A visiting his home given A’s distinctive appearance or indeed have forgotten any other occasion when both he and A were present to witness the deceased’s will. The court was satisfied that the claimant had asked A in their meeting whether he had been alone when he witnessed the will, and that A had replied that he was. The claimant would not have pressured A into making a wholly false statement: the more likely answer was that A was now being less than frank. Therefore the evidential force of the presumption of due execution did not outweigh the findings that had been made on the evidence as to what actually occurred.

JUDGMENT MR MARK CAWSON QC: Introduction [1] This action concerns the validity or otherwise of what purports to be the will dated 3 May 1999 (the will) of the late Ranjit Singh, otherwise known as Gurwak Singh (Mr Singh), who died on 23 March 2009. [2] The will was admitted to probate on 12 March …

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