Will - Deceased leaving majority of estate to sons - Daughter contesting validity of will

Ahluwalia v Singh and others: ChD (Mark Cawson QC sitting as a High Court judge): 6 September 2011

R had six children: three sons and three daughters. In May 1999, R wrote what purported to be his will.

There was no other will in existence. The will contained an attestation clause in the following terms: ‘[S]igned 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 will was signed by two attesting witnesses, G and A. In March 2009, R died. In March 2010, the will was admitted to probate, with probate being granted to the first defendant, who was the eldest son of R, the other named executors having renounced. R left an estate with a net value for probate purposes of £872,890. The will provided for the residuary estate to be divided between the brothers and for two of R’s daughters, including the claimant, to receive legacies of £20,000 each.

The third daughter, the fifth defendant in the present proceedings, was wholly excluded from benefit, R having signed a separate form which explained that she had not paid back money that she had borrowed. The claimant contested the will and sought an order that probate be revoked, that the will be pronounced against and that letters of administration be granted to a fit and proper independent person.

The claimant submitted that, despite the clear terms of the attestation clause, and contrary to section 9(c) of the Wills Act 1837, R’s signature had not been made in the presence of both G and A. The claimant produced G’s witness statement, which stated that he had not signed any document as a witness for R in the presence of A and that A had never visited his home, which was where the will had been signed by R and witnessed by G. The first, second and third defendants contended that the claimant’s evidence as to the circumstances of the signing of the will was not sufficiently strong or cogent and did not amount to the strongest evidence required to rebut the strong presumption of due execution that arose from the attestation clause and signatures of G and A.

A had originally signed a witness statement that supported the claimant’s claim, but he later attempted to retract that and stated that he would not have signed a document with the attestation clause that the will had contained unless it had been true.The claim would be allowed.

Having found G to be the more credible witness, on an assessment of the evidence, the court was as sure as it could be that G had witnessed a document in his house for R in broadly the circumstances that he had described and, in particular, without A being present. The overall probability was that R had visited G in his home to obtain his signature to the will and subsequently obtained A’s signature either in his own home or that of A.

In the circumstances, the claimant had satisfied the burden of producing the strongest evidence as the evidential force of the presumption in favour of due execution did not outweigh the findings made in the instant case (see [105], [119], [124]-[125] of the judgment).

Timothy Evans (instructed by Thomas Cooper) for the claimant; Geoffrey Goldkorn (solicitor-advocate instructed by Goldkorn Mathias Gentle Page) for the first, second and third defendants. The fourth and fifth defendants did not appear and were not represented.