Sangha v Sangha & ors [2023] WTLR 1561

Analysis

Mr Hartar Singh Sangha made a will in 2007 dealing with both his English assets and his Indian assets. The 2007 will was executed as follows: Mr Sangha signed the will in the presence of one witness; that witness then signed the will; the second witness then entered, Mr Sangha acknowledged his signature in the presence of both witnesses and the second witness signed the will. In 2016, Mr Sangha made a further will in India dealing with his Indian assets. The 2016 will was declared to be Mr Sangha’s last will and contained a revocation clause revoking ‘all such previous documents’.

At first instance, Deputy Master Bowles determined that the 2016 will wholly revoked the 2007 will, that the 2007 will had been properly executed and that, in any event, the second witness had acknowledged his signature after Mr Sangha had acknowledged his own in the presence of both witnesses. On appeal, Simon Gleeson, sitting as a deputy High Court judge, decided that the 2016 will only revoked the 2007 will in relation to Mr Sangha’s Indian estate, affirmed the first instance decision on the execution of the 2007 will and ordered that only the 2007 will should be admitted to probate. The appellants appealed on the grounds that the deputy judge was wrong to hold that the 2016 will only partially revoked the 2007 will, that he had erred in holding that the 2007 will had been validly executed, that his decision on the revocation clause was unjust because of procedural irregularities and that the 2016 will should have been admitted to probate.

Held:

1. (1) The surrounding circumstances were to be considered in determining the intention of the testator and might indicate that a general revocation clause did not reflect the testator’s intention. A general revocation clause was, however, powerful evidence that this was the testator’s intention. The will concerned, made in India and dealing with Indian assets, did not indicate that it was dealing only with the Indian estate and the prima facie position was that it was to be the testator’s only will. Evidence admitted on appeal de bene esse did not assist with the testator’s intention. The force of the presumption against intestacy varied from case to case with the circumstances and, in this case, the presumption was weak because the testator had thought, mistakenly due to a previous bankruptcy, that the rules on survivorship applied to most of his English estate. Accordingly, there was no evidence sufficient to displace the natural meaning of the revocation clause and the 2016 will revoked the 2007 will in its entirety.
2. (2) Under s1 of the Wills Act 1963 and because there was no evidence of Indian law, the execution of the 2007 will was to be considered under English law. Sections 9(c) and 9(d) of the Wills Act 1837 required certain steps to take place in sequence. The testator must first sign the will, or the will must be signed at their direction. This ‘essential act’ must happen either in the presence of both witnesses, or be later acknowledged by the testator in the presence of both witnesses. The witnesses must then confirm that they have witnessed that essential act, either by signing the will or, if they have already signed, by acknowledging their signature.
3. (3) In the circumstances, it was unnecessary to decide the other grounds of appeal.

JUDGMENT LORD JUSTICE NUGEE: Introduction [1] This second appeal arises after judgment in a probate action that was tried before Deputy Master Bowles, an experienced former Chancery Master who was sitting in retirement (‘the Deputy Master’), and raises two main questions. The late Hartar Singh Sangha died on 3 September 2016 in Chandigarh, Punjab, India …

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