Analysis
The deceased died on 4 July 2018 leaving a disputed will, dated 3 May 2018, probate of which was granted to the defendant, who together with his wife were the only beneficiaries.
The 2018 will was a holographic one-page will. On one side it bore the signatures of two witnesses who, it was common ground, had witnessed the testator’s signature on 4 May 2018 when not together at the same time and so did not validly attest the will in accordance with s9, Wills Act 1837. On the reverse of the will were two further signatures dated 3 May 2018, belonging to two further witnesses, Dr A and Dr P. The defendant claimed that he, together with Dr A and Dr P, had driven from Loughborough to the testator’s home in Ilkley, Yorkshire on the evening of 3 May 2018 where the will had been executed and the signature witnessed. The claimant alleged the latter signatures were added on at a later date as part of a conspiracy with the defendant.
Both Dr A and Dr P swore affidavits of due execution in support of the application for probate. Between them they signed five further witness statements in preparation for trial, maintaining the same account notwithstanding the emergence of evidence showing that Dr P had purchased cinema tickets in Loughborough the same evening.
The trial took place entirely remotely. Dr A gave unsolicited evidence seeking to explain the purchase of cinema tickets. Notwithstanding an admission by the defendant’s counsel that there had been discussions between Dr A and the defendant’s solicitors less than 24 hours before his giving evidence, Dr A maintained that there had been no such discussions. The court also heard from D, a solicitor whom the defendant had consulted shortly after the testator’s death, who was presented only with one side of the contested will and who therefore advised it was invalid, following which her retainer was terminated.
Finally, Dr P began his evidence by saying that contrary to his previous evidence, there had been no meeting on 3 May 2018. Following this, the defendant abandoned his defence and counterclaim and admitted the invalidity of the 2018 will, also consenting to an order that he pay the claimant’s costs on the indemnity basis. The court was nevertheless asked to give judgment.
The issue to be determined was whether the purported will had been witnessed as alleged by the defendant.
Held:
- 1) The will was not validly attested as required by s9, Wills Act 1837. The burden of proof lay upon the claimant to the civil standard. There is no inflexible rule of law that a more serious allegation requires stronger evidence to be proven – Re B (Children) [2008] followed. Dr P gave evidence that there was no meeting on 3 May 2018, when he had no reason to lie and every reason to maintain his previous account. The evidence of Dr A was undermined by his obvious lie regarding discussions with the defendant’s solicitor. The Defendant’s evidence was unclear, uncorroborated and inconsistent with his subsequent conduct. The matter would be referred to the Director of Public Prosecutions.
- 2) Per curiam: Notwithstanding the highly contentious nature of the evidence and the serious allegations of conspiracy, a wholly remote trial was appropriate. The ‘barrier’ between participant in a remote trial and the effect of the ‘solemnity’ of a courtroom should not be overemphasised; the demeanour of a witness is an uncertain guide to the reliability of evidence and far more important is the substance of the evidence given, its internal consistency and its consistency with contemporaneous documents and the inherent probabilities – R (Dutta) v General Medical Council [2020] and R (on the application of SS (Sri Lanka)) v Secretary of State for the Home Department [2018] followed. It allowed the person giving instructions on behalf of the claimant to participate from Dubai, and other witnesses to be present for the whole of the trial. It may also have been easier for Dr P to admit the truth when not faced with the defendant in person.
Order accordingly.
JUDGMENT HHJ DAVIS-WHITE QC: Introduction [1] The issue before me is a simple one of fact: did two individuals validly attest (or for present purposes witness) the will of the late Professor Robert Whalley dated 3 May 2018 (the ‘2018 Will’) on the 3 May 2018 in accordance with s9 of the Wills Act? If …Continue reading "The British University in Dubai v Ebrahimi [2021] WTLR 703"