Leeds LS1 3BG
B e f o r e :
| IN THE ESTATE OF SIBO KAUR DECEASED MR HAMESH LAL RAM
MR SODHI LAL
|MR RASHPAL LAL RAN CHAUHAN
(2) MR NICK GEOVANNI DHADRAL
Mr Bowen counsel for the First Defendant
The Second Defendant in person
Hearing date: 23, 24 May 2017
Date draft circulated to the Parties 1 June 2017
Date handed down 19 July 2017
Crown Copyright ©
(a) It was not properly executed in accordance with the Wills Act 1837 as amended because the attesting witnesses were not present when the deceased signed the Will
(b) In any event, the deceased lacked testamentary capacity at the time that she made the Will
(c) Alternatively, that the Will was the result of the exertion of undue influence by the First Defendant upon the deceased.
The Law as to Attestation of the Will
"no will shall be valid unless-
(a) it is in writing, and signed by the testator or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will and
(c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time and
(d) each witness either-
(i) attests and signs that will; or
(ii) acknowledges his signature
in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary".
The contention is that the Will is invalid because the witnesses were not present at the same time when the deceased signed the Will.
"If a will, on the face of it, appears to be duly executed, the presumption is in favour of due execution applying the principle "omnia praesumuntur rite esse acta". The force of the presumption varies with the circumstances. If the will is entirely regular in form, it is very strong and if the form is irregular and unusual the maxim does not apply with the same force. If the witnesses are entirely ignorant of the details of the execution the presumption is the same. If they professed to remember and states that the will was not duly executed and there is negative evidence is not rebutted by showing that the witnesses are not to be credited, or, taking their statement of the facts, that their memories are defective, the will must be pronounced against. The court does not require direct affirmative evidence of due execution"
In paragraph 13.3 it is said that
"evidence rebutting the presumption must be positive and reliable………… the burden of proving due execution, whether by presumption or by positive evidence rests on the propounder (in this case the Defendants). The direct evidence of both the attesting witnesses, unless discounted, rebut the presumption and the evidence of one of the witnesses has been held to do so but even an apparently positive recollection of contradicting the attestation clause must be treated with caution" (my emphasis)"
The Law as to Testamentary Capacity
- Understand the nature of his act i.e. executing the will and its effect (i.e. the effect of his wishes being carried out at his death)
- Understand and recollect the extent of his property
- Understand the nature and extent of the claims upon him both of those whom he is including in his will and those whom he is excluding from his will
- Not be subject to any disorder of the mind as shall "poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties-that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made".
- The testator had capacity at the time the instructions were given
- The will is prepared in accordance with those instructions
- At the time the will is executed the testator remembered having given instructions and believes that the will was prepared in accordance with them.
"….. Although talk of presumptions and their rebuttal is not regarded as especially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed"
And at paragraph 60 he says;
"my concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity."
"when we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that counts: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices whereas knowledge and approval requires no more than an ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacked testamentary capacity at the date that the will is executed. The reason for this requirement is the need for evidence to rebut suspicious circumstances: Perrins v Holland (2010) EWCA civ 840. Normally proof of instructions and reading over the will will suffice: ibid at (25). The correct approach for the trial judge is clearly set out in Gill V Woodhall (2010) EWCA civ 1430. It is a holistic exercise based on the evaluation of all the evidence both factual and expert. The judge's starting point in our case was one of initial suspicion given that the disputed will was prepared and executed without a solicitor and without Mrs Simon having been medically examined"
The Law as to Undue Influence
"there is no serious dispute about the law. The approach that I should adopt may be summarised as follows
(i) in the case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence.
(iii) whether undue influence has procured the execution of the will is therefore a question of fact.
(iv) the burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is perhaps no more than a reminder of the high burden even on the civil standard, that a Claimant bears improving undue influence is vitiating a testamentary disposition.
(v) in this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud.
(vi) coercion is pressure that overpowers the volition without convincing the testator's judgement. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that over bears the testator's free judgement, discretion or wishes, is enough to amount to coercion in this sense.
(vii) the physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to over bear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case, simply to talk to a weak and feeble testator may so fatigued the brain that a sick person may be induced for quietness sake to do anything. A drip…. Drip approach may be highly effective in sapping the will.
(viii) there is a separate ground for avoiding testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is fraudulent calumny. The basic idea is that if A price is the testator's mind against B who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside.
(ix) the essence of fraudulent calumny is that the person alleged to have been poisoning the testator's mind must either know that the aspersions are false or not care whether they are true or false. In my judgement if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone.
(x) the question is not whether the court considers that the testator's testamentary disposition is fair because, subject to sanitary powers of intervention, a testator may dispose of his estate as he wishes. The question in the end is whether in making his disposition the testator has acted as a free agent.
Compliance with s9 Wills Act
Lack of testamentary capacity
"Rashpal asked his mother if her house was his and she said yes. The conversation was all in Punjabi. He had to ask the question several times before she answered".
"My reason for making my son Rashpal sole beneficiary are that he was Mr Kartara Ram,s carer my son cared for my husband right up until his death on 19 May 1991 on his deathbed before my husband Mr Kartara Ram died he asked a great favour from my son he told him to look after your bibi calling her Tommy as you have looked after me and to marry Nimbo your sister to someone respectable then after telling my son this he passed away a few hours later and I have made my decision my son even brought me out of the care home as I could not stand living in that horrible place as i requested him to do even though i know all the family was against it he kept his father's wishes and now my wishes and he is still my career"
Conclusion as to Testamentary Capacity
Conclusions as to Undue Influence
I am grateful to the advocates for their assistance in this matter.