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Cite as: [2005] EWCA Civ 326, [2005] WTLR 587

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		Neutral Citation Number: [2005] EWCA Civ 326
		Case No: A3/2004/1606 A3/2004/1606A

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Chancery Division
Lightman J.
HC03CO2402

A3/2004/1606A
Royal Courts of Justice
Strand, London, WC2A 2LL

22/03/2005

B e f o r e :

LORD JUSTICE PETER GIBSON
LORD JUSTICE WALLER
and
LORD JUSTICE NEUBERGER
____________________

Between:

	DALIAH DORIT SHERRINGTON DONNA KARINA SHERRINGTON RAMON GERRARD DAVID SHERRINGTON	1st Respondent 2nd Respondent 3rd Respondent
	- and -
	YVONNE SHERRINGTON	Appellant

____________________

Mrs. Elspeth Talbot Rice (instructed by Messrs Withers of Old Bailey) for the Respondents
Mr. Alan Boyle Q.C. and Mr. Paul Teverson (instructed by Messrs Goldkorn Mathias Gentle of Bloomsbury) for the Appellant

Hearing dates : 21, 22 and 23 February 2005
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Peter Gibson (giving the judgment of the court to which all the members of the court contributed):

This is an appeal in a probate action, the circumstances of which can fairly be called extraordinary. If the trial judge is right, the deceased, a practising solicitor for some 30 years, signed what would have been his last will, had it been duly executed and had he known and approved its contents, in the presence of two persons who signed it without their attention being drawn to his signature or to the fact that it was a will and without them having any intention to verify or attest his signature. The judge held that the deceased's widow, the sole executrix and beneficiary under that will, failed to establish that the will was validly executed. He further held that the widow had failed to prove that the deceased knew and approved the contents of a short and simple will. Accordingly, he held the will to be invalid with the result that the deceased died intestate and that the children of the deceased, being the children of the first of his two marriages to whom, as the judge found, the deceased was totally devoted, would take substantial interests in the large estate left by the deceased. We confess that if this court were free to divide the estate in a way it thought appropriate, the result achieved by intestacy would be what we would have wanted to achieve. But this court has no such discretion, and instead this appeal must be determined according to whether or not the widow has succeeded in impugning the decision of the judge.

The facts

The deceased, Richard Sherrington, was born in 1945. He was a successful solicitor. He was the founder and managing partner of the firm, Sherringtons. He was also a successful businessman, carrying on a loan business through Barex Brokers Ltd. ("Barex") of which he was the sole shareholder and director. By the time of his death he was more a businessman than a practising solicitor. His role in Sherringtons was essentially overseeing the running of the firm. The value of Barex was estimated at about £6 million at his death. Further it had a pension fund estimated to be worth some £1.7 million of which a 54.2% share had been appropriated to him and a 45.8% share had been appropriated to his first wife, Mrs. Gloria Sherrington ("Gloria").

There are three children of the deceased's marriage to Gloria: the First Claimant, Daliah Sherrington ("Daliah"), born on 12 May 1974, the Second Claimant, Donna Sherrington ("Donna"), born on 24 January 1977 and the Third Claimant, Ramon Sherrington ("Ramon"), born on 18 December 1982. In 1995 the deceased left Gloria to live with another woman. That relationship ended in early 1998. Before then Gloria had commenced divorce proceedings against the deceased. In April 1998 the deceased met the defendant, Yvonne Sherrington ("Yvonne") who was some 3 years younger than him, and they became engaged the next month. A decree absolute was granted in the divorce proceedings on 26 May 1999 and on 27 June 1999 the deceased married Yvonne. She had two daughters by an earlier marriage. One of them, Nathalie Walker ("Nathalie"), features in the history of what occurred.

Daliah, Donna and Ramon opposed the deceased's remarriage and refused to attend the wedding, despite the efforts of the deceased and Yvonne. The trial judge, Lightman J., found that relations between the deceased and his children were strained during this period but fully healed shortly thereafter.

In 2001 Sherringtons purchased the practice of another firm of solicitors, Hanchett-Woolstone ("HW"), whose office was about a mile from that of Sherringtons. In June 2001 HW had no trained lawyer working for them. Although Yvonne had no legal qualifications the deceased asked her to help by working, in effect, as a receptionist. In June 2001 Nathalie completed a PhD (on plant ecology). She too had no legal qualifications, but in July 2001 at the deceased's request she began to work at HW. Her primary role was to update HW's database, but she also assisted her mother in dealing with clients. An important part of Yvonne's and Nathalie's work was to obtain preliminary instructions from clients regarding their wills and to send the clients' existing wills, together with those instructions, to Sherringtons.

At the end of 2001 Nathalie's work with clients' wills caused her to ask Yvonne whether she and the deceased had made new wills following the revocation by their marriage of any previous will. Yvonne then asked the deceased whether they should make new wills.

In consequence draft wills were prepared for the deceased and Yvonne. Surprisingly, in view of Nathalie's lack of legal qualifications and absence of any previous experience of drafting wills, Nathalie was given the task of preparing the draft. We shall return later to the evidence of how the wills were prepared, but the deceased's engrossed will ("the Will"), as subsequently executed, read as follows:

"THIS IS THE LAST WILL AND TESTAMENT of me RICHARD MICHAEL SHERRINGTON of PENTHOUSE 19, BICKENHALL MANSIONS, BICKENHALL STREET, LONDON W1U 6BP AND I HEREBY REVOKE all former Wills and testamentary dispositions made by me

1) I APPOINT my WIFE YVONNE ROSE SHERRINGTON to be the Executor [sic] and Trustee of this my Will PROVIDED THAT if he [sic] shall be unable or unwilling to act in either such capacity or if he [sic] shall predecease me I APPOINT my daughters DALIAH SHERRINGTON and DONNA KARINA SHERRINGTON to be the Executor [sic] and Trustee [sic] of this my Will

2) SUBJECT to the payment of my just debts funeral and testamentary and other expenses and any capital duties payable on or arising from my death I GIVE DEVISE AND BEQUEATH all my estate both real and personal whatsoever and wheresoever situate not otherwise disposed of UNTO YVONNE ROSE SHERRINGTON

3) SHOULD my said wife fail to survive me by seven days or (if having so survived me) she shall disclaim any part or parts thereof (for which purpose my estate shall be deemed divisible into as many parts as shall be required to give effect to this provision) then I GIVE my said net estate or such disclaimed parts as the case may be unto my said daughters and my son RAMON SHERRINGTON

4) MY TRUSTEES shall have the following powers:-

(a) My Trustees shall have the same full and unrestricted power of investing in all respects as if they were absolutely entitled thereto beneficially and subject to no restriction with regard to advice or otherwise in relation to investment and without prejudice to the generality thereof they shall have power to buy sell or retain any freehold or leasehold property whether as an investment or a residence for any beneficiary

(b) In addition to all other powers conferred by law my Trustees shall have power at any time and from time to time to raise capital and pay or apply the same to or for the benefit of any minor beneficiary hereunder whether or not they shall in so doing exhaust the Trust Fund

(c) My Trustees may insure to the full replacement value thereof against loss or damage by fire or any other usual risk any property comprised in my estate for the time being or in any Trust fund created hereby paying the premiums out of the income or capital of my residuary estate and any money received by my Trustees under any such policy shall be treated as though it were proceeds of sale of the property insured

5) UPON my death it is my wish that my body be BURIED TOGETHER WITH MY WIFE

IN WITNESS whereof I the said Testatrix [sic] have hereunto set my hand this 7^th day of September Two Thousand and One

SIGNED by the Testatrix [sic] in our presence and then by us in hers [sic]".

The Will at that stage was on three separate sheets of paper. The first page ended at the end of cl. 3 and the second page at the end of cl. 5.

Yvonne's engrossed will, as subsequently executed, also consisted of three sheets of paper and was in like form save that –

(1) in cl. 1, the deceased was named as Executor and Trustee;

(2) also in cl. 1, if he (called "she") was unable or unwilling to act or predeceased Yvonne, she appointed her two daughters to be "the Executor and Trustee"; and

(3) in cl. 3, if the deceased did not survive Yvonne by seven days or disclaimed, she gave her net estate or such disclaimed parts to her two daughters.

The engrossments were handed by Nathalie to Yvonne on 7 September 2001. That evening the deceased and Yvonne were due to fly to France for a short holiday on a 9pm flight from Luton. Mr. Rafiq Butt, described by the judge as combining the roles of the deceased's confidant, friend, business adviser and chauffeur, and his wife, Ayesha, an assistant teacher, picked up Yvonne from her mother's flat and took her to the office of Sherringtons. There at about 6.30pm Mrs. Butt, who was pregnant and wanted to use the lavatory, and Yvonne entered the building. Yvonne went to the deceased's office and handed an envelope containing the unexecuted wills to the deceased. We shall have to return to the details of what occurred, but it is clear that the deceased handed Yvonne's will back to her, asked her to get Mrs. Butt to come to his office and summoned Pranlal Thakkar (also known as Mr. Depala) to his office. Mr. Thakkar worked as a cleaner at Sherringtons in the evening. The judge found that the deceased signed the Will on the third page opposite the attestation clause "SIGNED by the Testatrix in our presence and then by us in hers", that under that clause Mr. Thakkar signed and put his address and that beneath that address Mrs. Butt signed and put her address. The deceased also signed at the foot of each of the first two pages of the Will and Mr. Thakkar signed to the left of the deceased's signature on each of those pages, whereas Mrs. Butt signed to the right of the deceased's signature on the first page and below Mr. Thakkar's signature to the left of the deceased's signature on the second page. Similarly Yvonne signed her will on the third page opposite the attestation clause "SIGNED" etc., with Mrs. Butt signing under that statement and putting her address while Mr. Thakkar signed under Mrs. Butt's address and gave his address. Yvonne also signed at the foot of each of the first two pages of her will to the right while Mr. Thakkar and, below his signature, Mrs. Butt each signed each of the first two pages to the left of Yvonne's signature. Each will at that stage consisted of three loose sheets of paper.

When the signing was completed, Mrs Butt returned to the car where Mr. Butt remained. She made no mention to him that she had signed any document. Mr. and Mrs. Butt then accompanied the deceased and Yvonne to Luton.

According to Ms. Deepikaa Vyas, the marketing manager at Sherringtons, at a date which she could not remember, she was given by the deceased his and Yvonne's wills and on his instructions kept them in a safe place and did not let anyone see them. She also on his instructions, after 11 September 2001 but before the deceased went on a holiday to Australia on 1 October 2001, sewed up the wills and gave them back to the deceased.

The deceased's holiday in Australia was spent with Donna. He returned on 20 October 2001. On 30 October he was killed in a car crash. He was then aged 56. He was survived by his mother, then aged 94, Gloria, their children and Yvonne.

The Will was found after his death in a filing cabinet in the deceased's office. Yvonne was granted probate of the Will on 10 May 2002. The estate was valued for probate at £2.8 million, but the judge found the true value to lie closer to £10 million.

The proceedings

Daliah, Donna and Ramon commenced proceedings against Yvonne on 2 July 2003. They sought revocation of the grant of probate and asked the court to pronounce against the Will and to grant to them letters of administration. In the Particulars of Claim two issues were raised: (1) the Will was not executed in accordance with s. 9 Wills Act 1837 in that the witnesses who signed the will did so at a time when the deceased had not signed it; (2) the deceased did not know and approve the contents of the Will, for which he had not given instructions and which did not give effect to the strong moral obligations which the deceased felt towards his mother and children. By her Defence Yvonne denied these averments.

The judge heard the action over 6 days in June 2004. After the oral evidence had been completed he allowed the Claimants to amend the Particulars of Claim to allege a further ground in relation to the issue of due execution, viz. that neither Mrs. Butt nor Mr. Thakkar intended to attest the signature of the deceased. In a full and lucid reserved judgment delivered on 13 July 2004 the judge said that the onus of proof on the balance of probabilities on both issues lay on Yvonne. He pointed out that there was no allegation of undue influence or lack of testamentary capacity. He referred to the considerable number of witnesses but said that the case very much turned on the weight to be afforded to the evidence of the 5 principal witnesses: Yvonne, Nathalie, Mr. and Mrs. Butt and Mr. Thakkar.

The judge, in a section of his judgment headed "Characters and Relationships between the Deceased and the Defendant", described the deceased and Yvonne and their relationship. He said of the deceased that he had a strong character and generally got his own way. He accepted Nathalie's description of the deceased as an impatient, restless man who liked to get things done quickly. The judge called him in every way a family man, a very loving and supportive father, totally committed to his family including Gloria, his mother, for whom he provided financially, his brothers including Howard Sherrington ("Howard") and Howard's wife Shirley. The judge said that on the marriage of the deceased to Yvonne, he set out to establish a close and loving relationship with her and her children, and succeeded with her children. But the judge then went on to find that the deceased's relationship with Yvonne quickly went sour. The judge expanded on that in strong and forceful terms, saying that the deceased "must have realised that the marriage could not last". We must return later to the question whether it was appropriate for the judge to make those findings in view of the indications he had given at the very outset of the hearing and on the third and fourth days of the trial as to what were the relevant issues in the action.

The judge then gave his assessment of the principal witnesses, describing Yvonne and Nathalie as interested and not independent witnesses. He found Yvonne to be an unsatisfactory and unreliable witness, unable to come to terms with unpalatable facts and one who would say anything that came to mind irrespective of its truth to contradict them, her total conviction of the righteousness of her cause blinding her to any facts adverse to her case. He said "She refused to answer questions directly. She fenced. She constantly interrupted counsel's questions." He said of Nathalie that as soon as she was questioned about the drafting of the wills, she became unnerved, uncomfortable and agitated. The cross-examination, he said, revealed that she had good reason for her anxiety as her evidence, when tested, lacked credibility.

The judge said that the other three principal witnesses were independent. However, he found Mr. Butt to be highly partisan. He had high praise for Mrs. Butt whom he described as honest and truthful, and, in a later paragraph, as an impressive witness who gave her evidence clearly and without hesitation and who impressed the judge as a person knowing her own mind. Mr. Thakkar, who gave evidence through an interpreter, was described by the judge as "out of his depth" in answering questions and in stating his recollection before and at the trial. But the judge said that in his view Mr. Thakkar was anxious to tell the court the truth as he saw it, and went on to call him an honest witness trying his best to recall with accuracy what occurred.

The judge then turned to the question of due execution on which, he said, there were two issues: (1) whether the deceased signed the Will in the presence of two attesting witnesses (Mrs. Butt and Mr. Thakkar) and (2) whether those two attesting witnesses signed the will intending thereby to attest as witnesses that the deceased signed in their presence. The judge then went through the evidence of Yvonne, Mrs. Butt and Mr. Thakkar.

He referred to Yvonne's evidence that the deceased told Mrs. Butt that she and Mr. Thakkar were going to witness the signatures of himself and Yvonne and that the deceased may have said that the documents were wills, and should sign every page, adding on the last page their addresses; that the deceased went on to tell Mrs. Butt to translate his directions to Mr. Thakkar, whereupon Mrs. Butt spoke to Mr. Thakkar in a foreign language; that the deceased then signed the three pages of the Will and Mr. Thakkar and Mrs. Butt signed where shown, and that Yvonne also handed to them her will to sign and that the deceased angrily told her to take it back as she had to sign it first. The judge related Mrs. Butt's account, viz. that the deceased asked her to sign the sheets of paper and put her address on one of the pages and to pass on those instructions translated into Urdu to Mr. Thakkar; that she did exactly that; that she did not see the deceased sign the Will and did not see or notice his signature; that she had no idea that what she was signing was a will and that she had no intention to verify or attest the deceased's signature. The judge said that Mr. Thakkar's evidence was to much the same effect; that after Mrs. Butt arrived in the deceased's office the deceased told him through Mrs. Butt to sign the papers before him; that he was then told by the deceased or Yvonne where to sign and where to write his address; that he did not read the pages he signed; that he did not see the deceased sign or his signature; that he did not know what the pages were and that he had no intention to attest or verify the deceased's signature.

The judge found that Mrs. Butt had given cogent evidence that the statutory requirements were not complied with and that Mr. Thakkar's evidence afforded support for that of Mrs. Butt. In contrast he did not find Yvonne's account of the circumstances in which the Will was signed convincing, describing it as having the air of wishful reconstruction rather than recollection and incapable of standing with that of Mrs. Butt. The judge expressed his conclusion that Yvonne failed to establish that the Will was validly executed in this way:

"40. In my judgment what happened was that (unknown to and unnoticed by Mrs Butt and Mr Thakkar) the Deceased signed the Will and he then merely told Mrs Butt and (through Mrs Butt) Mr Thakkar to sign and write their addresses where indicated. The Deceased did not draw their attention to his signing the Will nor did he acknowledge his signature or draw attention to it. Nor did he tell them that they were to sign as witnesses. No explanation was given of the nature of the document to be signed or the purpose of their signatures. Mrs Butt and Mr Thakkar signed with no intention beyond complying with the Deceased's instruction. They had no intention, and no reason to intend, to verify or attest the Deceased's signature. For them signing was a matter of no significance and it was for that reason that Mrs Butt did not even mention the incident to Mr Butt. The significance only emerged as a surprise to her after the Deceased's death."

The judge, in holding in the first sentence of that paragraph that the deceased had signed the Will before Mrs. Butt and Mr. Thakkar signed, therefore rejected the way the Claimants had put their case until they were allowed to amend. We must return to the significance of that holding later. However, the judge upheld the way the case was put after amendment, accepting the oral evidence of Mrs. Butt and Mr. Thakkar on their lack of intention to attest the deceased's signature.

The judge then turned to knowledge and approval. Initially (in para. 42) he said that it was unnecessary to determine this issue because of his decision on due execution and it appeared that his comments on that issue were obiter, but in paras. 53 and 54 he gave his conclusion on the issue as a separate reason why he was ordering that the grant of probate should be revoked.

The judge found that the circumstances attending or relevant to the preparation of the Will were such as to bring into play the requirement that it was for Yvonne, who had said that she had communicated to Nathalie the deceased's oral instructions for the Will and was the sole beneficiary under it, to establish that the deceased knew and approved its contents. The judge said that the suspicion raised by the circumstances might be slight and easily dispelled if the terms of the Will were explicable by the normal loving relationship between a testator and his spouse and sole beneficiary, but that in this case the deceased's relationship with the defendant was quite abnormal and the estate was amply sufficient to provide also for the Claimants, to whom he was devoted, as well as the deceased.

The judge then said:

"46. The evidence before me establishes clearly that: (1) the Deceased's relationship with the Defendant by the date of the Will was so bad that it occasioned the Deceased great unhappiness and a deep depression; (2) the Deceased took and expressed the view that his marriage had been a terrible mistake and that the Defendant may only have married him for his money; (3) the Deceased felt deeply antagonistic to the Defendant and spoke of his antagonism in extreme terms; (4) the Deceased was totally committed to the Claimants and was concerned to provide for their future; and (5) the Deceased knew of the history of bad (or no) relations between the Defendant and the Claimants.

47. There are four extraordinary features of the Will and the circumstances of its execution. The first is that by leaving everything to the Defendant the Deceased made the Claimants dependent for any benefit from his estate on the whim of the Defendant a person whom he could not trust to act in this role. The second is that the Deceased (a very wealthy man) committed the preparation of his will to a novice who has never drafted a will in her life before when experienced draftsmen were readily available. The third is that the Will contained a series of obvious typographical errors and the out of place Minority Clause [clause 4(b)]. The fourth is that the Will was prepared in the course of one day in a totally unnecessary rush leading to use as one of the attesting witnesses of a person with such a limited understanding of English that the other attesting witness was required to translate the Deceased's instructions to him."

The judge proceeded to consider the evidence of Yvonne and Nathalie. He rejected the evidence of Yvonne that on the night of 6 September 2001 she and the deceased agreed to make mutual wills leaving everything to the survivor. He accepted Nathalie's evidence that when she learnt of the proposal that by Yvonne's will the deceased would take all Yvonne's assets, she was very concerned because she and her sister were still living at a property owned by Yvonne and was anxious that she would lose that home if Yvonne died first, and so telephoned the deceased and told him of her concerns. The judge found that Nathalie was reassured that the deceased would look after her. But the judge rejected what Nathalie had further said about that conversation, viz. that the deceased also said that if the deceased predeceased Yvonne, he could trust Yvonne to look after his children. The judge described that as totally improbable and said that his conclusion that what the deceased said was limited to the impact of Yvonne's will on Nathalie was in accord with the record of the conversation in a letter dated 9 October 2002 from Yvonne's solicitors to the Claimants' solicitors. Again we must return to that point later.

The judge did not accept the evidence of Yvonne and Nathalie that during the day on 7 September 2001, when Nathalie completed the draft of the deceased's will, Yvonne in Nathalie's presence read over the telephone the whole of the draft Will to the deceased who said that it was fine. The judge described their account of that conversation and the circumstances in which it took place as not credible. He referred to three matters as standing out. The first was a point based on what is shown on Nathalie's word processor, which led the judge to reject both her evidence of the times when, and the order in which, she worked on the wills of the deceased and Yvonne and Yvonne's and Nathalie's explanations of the typographical errors in the Will of the deceased (such as the attestation clause referring to him in the feminine). The second was cl. 4(b), which, the judge said, the deceased must have noted because it was totally inappropriate, the will not conferring any benefit on a minor. The judge also said that the deceased would also have required the correction of the typographical errors if Yvonne had read out the draft Will. The third was the failure of Yvonne and Nathalie satisfactorily to explain when, according to them, the deceased decided to make one change to the draft. They said that the draft originally provided that the default executors (if Yvonne was unwilling or unable to act as executor or predeceased the deceased) should be Daliah, Donna and Ramon, but that at some stage, possibly, according to Nathalie, when the deceased approved the draft on the telephone, he decided to exclude Ramon as an executor. The judge pointed out that if Nathalie's suggestion was right, the deceased could not merely have said, when the Will was read to him, that it was fine, and that it involved some redrafting of cl. 3 to refer to Ramon for the first time there, but that neither Yvonne nor Nathalie recollected that exercise.

The judge expressed himself as not satisfied that the deceased was ever informed of the contents of the Will or ever read it. He described the evidence as establishing no more than that Yvonne was instrumental in drafting the Will and put it before the deceased for execution and that the deceased thereupon executed it. The judge found that the deceased had an opportunity to read it when it was handed to him, but the judge said that he was not satisfied that he did read it, and that accordingly Yvonne had failed to discharge the onus of proof on her to prove knowledge and approval.

The judge refused permission to appeal as did Jacob L.J. on paper when Yvonne applied to this court. However, a renewed application for permission succeeded before Arden and Jacob L.JJ.

The appeal

There are three issues raised before us:

(1) Did the judge err in law or in fact in finding that the Will was not duly executed because of the evidence of Mrs. Butt and Mr. Thakkar that they did not intend to attest that the deceased signed the Will in their presence?

(2) Did the judge err in fact in finding that the deceased signed the Will in the presence of Mrs. Butt and Mr. Thakkar?

(3) Did the judge err in fact in finding that it had not been shown that the deceased knew and approved the contents of the Will?

The first and third issues are raised by Yvonne in her appeal. The second issue is raised by the Claimants in their Respondent's Notice.

Before us, Mr. Alan Boyle Q.C. (who did not appear before the judge) and Mr. Paul Teverson (who did appear below) appear for Yvonne. Mrs. Elspeth Talbot Rice appears before us, as she did before the judge, for the Claimants. We are greatly indebted to them for their excellent arguments.

Before we go to the three issues, we must say a few words about the appropriate approach of the court to the issues so far as they are appeals on fact. As Mrs. Talbot Rice rightly reminded us, an appellate court is severely handicapped in judging the credibility of oral evidence, even though transcripts are provided, because it has not heard and seen the witnesses giving evidence nor observed their demeanour. She has referred us to statements in Benmax v Austin Motor Co. Ltd. [1955] AC 370 which made it clear how very difficult it is for an appellate court to interfere with a finding of primary fact founded on the credibility of a witness. Although that case suggests that it may be easier for an appellate court to interfere with an inference drawn from primary facts, that must now be read subject to the cautionary words of Lord Hoffmann in Biogen Inc. v Medeva plc [1997] RPC 1 at p. 45 that specific findings of fact are inherently an incomplete statement of the impression made on the trial judge by the primary evidence and that such findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. It is accordingly necessary for this court to treat the judge's findings with appropriate respect. It must be very slow indeed to interfere with any such findings. That, however, does not mean that an appeal on fact can never succeed. If this court is convinced that the judge was plainly wrong, then it is its duty to interfere.

(1) Due execution - attestation

S. 9 Wills Act 1837, as amended by s. 17 Administration of Justice Act 1982, is in this form:

"9. 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 two or more witnesses present at the same time; and

(d) each witness either –

(i) attests and signs the will; or

(ii) acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness),

but no other form of attestation shall be necessary."

Although the judge in the first sentence of para. 40 of his judgment makes no express finding that the deceased signed the will in the presence of Mrs. Butt and Mr. Thakkar, that finding is plainly implicit in what he said in that sentence. On the footing that the judge was right so to find, there is no dispute that the conditions of paras. (a), (b) and (c) of s. 9 were complied with. The dispute relates to whether para. (d)(i) is satisfied and in particular, because there is no doubt that Mrs. Butt and Mr. Thakkar did sign the Will, whether they did "attest", if that verb is used as an intransitive verb, or "attest …. the will", if the verb is used as a transitive verb. We incline to the view that the intransitive use of the verb is correct. It is not in dispute that the witnesses need not know that the document which they see the testator sign is a will (see, for example, Smith & Smith v Smith (1869) LR 1 P&D 143). In the Smith case they did not see the attestation clause and although they saw the testatrix write something on the document, they did not see what was being written. Nevertheless, the court was prepared to infer that the testatrix was signing the will, the presumption that everything was duly done being a strong one in the absence of evidence clearly rebutting the presumption.

Mr. Boyle submits that the judge was wrong to hold that it was necessary to show that the two attesting witnesses when signing the Will thereby intended to verify that the deceased signed or acknowledged his signature in their presence. He says that Re Beadle [1974] 1 WLR 417 at p. 421, to which the judge referred for that proposition, does not establish it. He contends that the court does not have to look at the intention of the attesting witness in order to be satisfied that the will is a good one, and he points to dicta of Langton J. to that effect in In the Estate of Benjamin, deceased (1934) 150 LT 417 at p. 419. He draws attention to two points on the language of s.9. First, para. (b) shows that when the legislature wished to make intention a condition, it did so expressly. Second, if an intention to verify that the testator signed or acknowledged his signature in the presence of the witness was required for para. (d)(i), it is surprising that there is no corresponding requirement in para. (d)(ii) which merely requires the witness who signs before the testator to acknowledge his own signature in the testator's presence.

Mrs. Talbot Rice argues that the judge was right on this point. She says that mere signature is not enough and that further meaning has to be given to "attests" as well. She submits that the witness must appreciate what he is doing in order to attest. The relevant intention, she submits, is always a question of fact and while she acknowledges the presumption of due execution where there is an attestation clause and the testator and the witnesses have signed, she says that where there is evidence from the witnesses in rebuttal of the presumption, the court will determine the question of due execution in the light of that evidence.

As a matter of statutory construction it is plainly correct that meaning over and above "signs the will" must be given to "attests and". This is made clear in some of the earlier authorities. In Hudson v Parker (1844) 1 Rob Ecc 14 Dr. Lushington made certain observations on the meaning of the requirement in the then current form of the Wills Act 1837 that the witness "shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary". At p. 26 he pointed to the statutory requirement of attestation in addition to subscription and gave as the meaning of "attest" to bear witness to a fact. He said: "I conceive the witnesses in a will bear witness to all that the statute requires attesting witnesses to attest, namely, that the signature was made or acknowledged in their presence. The statute does say "that no form of attestation shall be necessary", still the witnesses must attest, although the outward work of attestation may be subscription only". Similarly in Bryan v White (1850) 2 Rob Ecc 315 at p. 317 Dr. Lushington said: ""Attest" means the persons shall be present and see what passes, and shall, when required, bear witness to the facts". In Griffiths v Griffiths (1871) LR 2 P&D 300 at p. 303 Lord Penzance said of the statutory provisions: "The statute says that the witness shall attest, and shall subscribe the will; which must mean that he shall put his name to the will as attesting to the fact that he saw the testator sign it; that is, he must put his name as witness".

Both in textbooks (see, for example, Halsbury's Laws Vol. 50 4^th ed. Reissue (1998) para. 318) and in decided cases (see, for example, Roberts v Phillips (1855) 4 El & Bl 450 at p. 457 per Lord Campbell C.J. and In the Estate of Bercovitz, deceased [1961] 1 WLR 892 at p. 894 per Phillimore J. in a judgment approved by this court [1962] 1 WLR 321) it has been stated that the court must be satisfied that the witness had signed the will with the intention of attesting the testator's signature or of attesting the will. In Re Beadle [1974] 1 WLR at p. 421 Goff J. in an obiter passage referred to what Phillimore J. had said in Bercovitz about a witness's intention when signing and rejected an argument that attestation was not a matter of intention. The points taken by Mr. Boyle on the language of s. 9, while valid, cannot be decisive. We would therefore accept that a factual question is involved as to whether the witness intended to attest the testator's signature or will. The judge made no error on this part of the law he had to apply.

In so doing we should indicate that we do not agree with the view of Langton J. in Benjamin that the intention of the witness is immaterial if the will is in proper form. He appeared to derive that from the decision of this court in Wright v Sanderson (1884) 9 PD 149. However, what that case demonstrates is the strength of the presumption of due execution when there is an attestation clause and the testator and witnesses sign. In that case the testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to "sign this paper" which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor did they see the testator sign. One witness said that she did not know what she was signing; the other said that she did not know what she was doing. Although the trial judge, Sir James Hannen P., did not doubt their honesty, he felt that he could not rely on their evidence to rebut the presumption arising from the regularity of the codicil on its face as regards all the formalities of signature and attestation when no suspicion of fraud arose. This court dismissed an appeal to it, the Earl of Selborne L.C. observing (9 PD at p. 161), "I do not know how many wills, really well executed and duly attested, might not be brought into peril if, upon the sort of evidence which we have here, after a lapse of several years, probate were refused."

To similar effect was Lord Penzance in Wright v Rogers (1869) LR 1 PD 678 at p. 682. In this case the survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator. Lord Penzance said at p. 682 that the question was whether the court was able to rely on the witness's memory. He continued:

"The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed."

It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has "the strongest evidence", in Lord Penzance's words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator's signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness.

Did the judge err in the factual conclusion he reached on the intention to attest? He rightly acknowledged that on its face the Will was validly executed and that the presumption of due execution, reinforced by the fact that the deceased was an experienced solicitor, who was likely to have ensured that the required formalities were undertaken, would apply in the absence of other evidence, though he nowhere refers to the need for the strongest evidence if the presumption is to be rebutted. The judge rightly referred to the degree of rush to catch the plane and to the deceased's impatience. It is clear from the judge's findings that Mrs. Butt's evidence was decisive in his rejection of Yvonne's evidence that the deceased indicated to Mrs. Butt and, through her, Mr. Thakkar, that they were to witness the signatures of himself and Yvonne and that they then signed before the witnesses signed. Mr. Thakkar's evidence is only relied on by the judge "if necessary" as supporting Mrs. Butt's "cogent" evidence.

The judge is a Chancery judge of great experience, with whose findings we are extremely reluctant to interfere. However, there are four aspects of the judge's reasoning on this first issue which greatly concern us.

The first and most important is that the judge, in assessing the credibility, and in repeatedly referring to the cogency, of Mrs. Butt's evidence, appears to have ignored the fact that he found against her on a critical, indeed the most crucial, part of her evidence. She had said in para. 6 of her statutory declaration verified by her first witness statement:

"At no time did I see Richard sign any of the sheets of paper nor had he signed his name on any of them before I signed"

In para. 7 of her second witness statement she stated her recollection more strongly:

"I am certain that Richard's signature was not on the sheets of paper I signed: I would have recognised Richard's signature from my husband's wage cheques, which Richard signed and which I often banked. I am sure that if Richard's signature had been on the sheets of paper, I would have recognised it and remembered it."

She was pressed on this in cross-examination and after some equivocation expressed herself as "100 per cent" certain that the deceased's signature was not there when she signed. She was given the opportunity of explaining why she signed in the particular positions in the Will where she did sign. Her answer was that the deceased asked her to sign in any position on the sheet. The judge rejected both parts of that evidence in the first sentence of para. 40. At no point does the judge refer to the strength of her certainty or her answers on the position of her signature nor does he appear to take account of his rejection of this highly significant evidence in assessing her as a credible witness.

What is even more striking is that the judge does not appear to take account of this rejected evidence when he finds that Mrs. Butt did not intend to attest the deceased's signature. Evidence as to that was only given when the judge himself asked her the question at the end of her cross-examination:

"did you know or did you intend to witness his signature on the document?"

The negative answer which Mrs. Butt gave was inevitable, given her evidence that she never saw the deceased sign. We do not understand, and the judge does not explain, how that answer can be relied upon as evidence of her intention when, as the judge finds, contrary to her evidence, the deceased did sign in her presence and that his signature was already on the document when she signed. True it is that the judge finds that she did not notice his signature, but how can that be credible?

The judge does not explain how it was that he accepted that she did not intend to witness the deceased's signature when it appeared on the last page opposite the attestation clause, when she signed beneath the clause and when she also signed alongside the deceased's signature on each of the first two pages. Further, any such explanation would have had to be gauged against the fact that the same exercise was repeated three more times in relation to the will of Yvonne. We draw attention again to the fact that the judge has found, contrary to Mrs. Butt's evidence, that the deceased told Mrs. Butt to sign and write her address "where indicated".

The second aspect of the judge's treatment of the evidence of Mrs. Butt which troubles us is as to what Mrs. Butt said to Howard and his wife about the execution of the Will. This evidence is significant because it relates to an episode at Christmas 2001, less than 4 months after the execution of the Will. Mr. and Mrs. Butt had called on Howard and his wife because Mr. Butt was upset at the death of the deceased and at the absence of any provision for the Claimants and for him in the Will. Howard asked Mr. Butt how he knew that there was a will, to which Mr. Butt replied that Mrs. Butt had witnessed it. Howard's evidence was that he was amazed that the deceased would ask Mrs. Butt to witness his will. He asked her to describe what happened. In a brief statement to Yvonne's solicitors which they recorded, Howard stated that Mrs. Butt said: "I was asked to go into the building and Richard asked me to sign as a witness to his will and so I did". In his oral evidence, Howard described that sentence as a précis but said that substantially it was true. The only part he qualified was the first part of that sentence, explaining that he did not think it necessary to go into her personal condition of being pregnant and going to the toilet. Howard repeated that Mrs. Butt told him that she had witnessed the Will, and when it was put to him that Mr. Butt had said it, Howard said that it was definitely Mrs. Butt. The evidence of Howard's wife, Shirley, was to the same effect.

The judge found that Mr. Butt had told Howard and Shirley that Mrs. Butt had witnessed the Will and Mrs. Butt assented that this was so, that being the meaning that the judge gave to Mrs. Butt's oral evidence that she said nothing. Further, the judge accepted Mrs. Butt's explanation that she intended to say no more than that she signed the Will and did not intend to convey that she signed as a witness intending to verify the deceased's signature.

This interpretation is decidedly benevolent to Mrs. Butt and hardly does justice to the force of the point taken on behalf of Yvonne. Mrs. Butt in para. 9 of her second witness statement described what occurred in Howard's home in this way:

"During the course of tea, Richard's will was mentioned in passing and my husband mentioned that I had signed as a witness to it. I have been told that Howard Sherrington says that upon being told that I had witnessed the will, he asked me to describe what happened. He did not do this and I did not say anything about the occasion. I certainly did not say that I was asked to go into the building or that Richard asked me to sign as a witness to his will because none of this happened."

In cross-examination the last sentence of Howard's statement was put to Mrs. Butt as having been said by her to Howard. She denied doing this and when she was asked what she did say, she replied "Nothing". When asked "Nothing at all?", she answered, "No, he did not ask me. I just signed and we knew after his death that it was will [sic]". When asked, "What did you say?" she replied "Nothing because he said the same thing." When Shirley's statement was put to Mrs. Butt that each of Mr. and Mrs. Butt confirmed to Howard and Shirley that Mrs. Butt had been a witness of the Will, her reply was "I signed Richard's will, yes I did".

Those answers do not read well in cold print, but more importantly the judge has not recognised that there is an irreconcilable inconsistency between Howard's and Shirley's evidence on the one hand and on the other Mrs. Butt's categoric assertion that she had not been asked by Howard to describe what happened and had said nothing to Howard and Shirley about witnessing the Will. The judge does not say that Howard and Shirley were not witnesses of truth. Their evidence is all the more impressive because of Howard's incredulity that Mrs. Butt should have been asked to witness the Will.

The third aspect which concerns us is as to an incident which, according to Yvonne and Mr. Thakkar, if an attendance note on 19 August 2002 by Annabel Crumley, a partner of Goodman Derrick (then solicitors to Yvonne), is correct, occurred while the witnesses were signing the wills of the deceased and Yvonne. Mrs. Crumley interviewed Mr. Thakkar in English. Although at times, she said, she was unsure whether he had correctly understood her or she his explanation, when that occurred she ran through the events again until she felt relatively comfortable that she understood his evidence. The attendance note records Mr. Thakkar as having told Mrs. Crumley that after the deceased signed the Will on all pages and Mr. Thakkar signed and put his address on the last page, Yvonne then passed a document to him. The note continues:

"He was about to sign it when Mr. Sherrington got angry again indicating that Mrs. Sherrington must sign the document then Mr. Thakkar."

Mrs. Crumley then had a statement prepared on the basis of what Mr. Thakkar told her, but was concerned to ensure that Mr. Thakkar fully understood the statement before being asked to sign it. She asked a former legal executive at Goodman Derrick, Mr. Narshi Parmar, who is a Gujarati speaker, to discuss the statement with Mr. Thakkar in Gujarati. According to Mrs. Crumley's witness statement Mr. Parmar did so and seemed satisfied that Mr. Thakkar had understood the substance of the statement even in English. However, she had the statement translated by a professional translator into Gujarati and that was forwarded to Mr. Thakkar. Mr. Parmar then contacted Mr. Thakkar, who decided not to sign the statement as he did not want to get involved in the family dispute. Mrs. Crumley then spoke to Mr. Thakkar in English and he gave her the impression that the statement reflected his recollection of the facts, but he confirmed that he did not want to get involved. Mr. Parmar signed a witness statement dated 28 September 2002 in which he said that Mr. Thakkar confirmed to him that the contents of the statutory declaration accurately reflected his memory of events and that he was happy with it. Mr. Parmar also said that after Mr. Thakkar received the Gujarati translation, he confirmed to Mr. Parmar that the contents were true and correct. The declaration recorded that, after the deceased had signed a document on a number of pages and asked Mr. Thakkar to sign under the deceased's signature on the final page and to write his address and indicated to Mr. Thakkar where he should sign on the other pages close to the deceased's signature, the deceased becoming angry when Yvonne passed another document to Mr. Thakkar for him to sign without having signed it first herself. Mrs. Crumley in cross-examination by Mrs Talbot Rice specifically recalled Mr. Thakkar describing the incident of the deceased becoming angry. When it was put to Mrs. Crumley that on Mr. Thakkar's evidence, Yvonne had forgotten a couple of pages and that the deceased got cross with her that she had forgotten to hand them to Mrs. Butt and Mr. Thakkar for signature, Mrs. Crumley replied that that was not the impression that Mr. Thakkar had given her.

Yvonne in para. 54 of her first witness statement dated 3 March 2004 records the same incident. In the course of her cross-examination she repeated that the incident had occurred. The only challenge to her evidence on this was that it was put to her that she forgot to hand over one or two of the sheets of paper for signature by Mr. Thakkar and Mrs. Butt and that that was why the deceased spoke cross words to her. Yvonne refuted that suggestion and repeated that she handed over her will without signing it and the deceased told her to take it back and sign it first before passing it on. The suggestion put by Mrs. Talbot Rice was again said to be derived from evidence from Mr. Thakkar. His oral evidence on this point is far from clear. The following exchanges took place in the course of the cross-examination of Mr. Thakkar by Mrs. Talbot Rice.

"Q. As the paper swapping was going on did Mr. Sherrington get cross with Mrs. Sherrington because she had forgotten to pass across some of the sheets?

A. Yes, he was shouting.

Q. Was it because she had forgotten to pass across some of the sheets - -

A. He thinks that one paper was left to be signed, probably that is the reason he got annoyed. He says, I do not understand English very well but he presumes that probably may be the reason.

….

A. He says because he gave him the paper back, it was not signed, so that is why he thinks.

Q. So he remembers that?

A. Yes, I remember.

Q. He remembers one of the sheets not being signed?

A. Yes. He says because one of the papers that was not signed.

MR. JUSTICE LIGHTMAN: And that was the reason for what?

A. He says he does not know the reason.

MR. JUSTICE LIGHTMAN: One piece of paper was not signed, what happened in relation to that paper?

A. He shouted to Mrs. Sherrington that one paper needs to be signed.

MR. JUSTICE LIGHTMAN: Signed by who?

A. By Mr. Thakkar's signature."

It was not put to Mr. Thakkar that what he had told Mrs. Crumley about this incident as recorded in her attendance note and the statutory declaration drafted for him was not correct.

The judge's only reference to the incident is as part of his summary of Yvonne's evidence. But he says nothing about it in his findings of fact. As the first time the incident is recorded is in the attendance note of Mrs. Crumley's interview on 19 August 2002 with Mr. Thakkar, as Mrs. Crumley, whose evidence was not criticised by the judge, was clear in her recollection of the description by Mr. Thakkar of the incident, as Mr. Parmar confirmed that Mr. Thakkar had told him that the statutory declaration recorded his recollection of the events and as the fact that the incident occurred is supported by Yvonne's evidence, it would be surprising if the incident had not occurred. If the incident did occur, its significance is obvious: the deceased was well aware at the time the wills were being signed of the importance that the testator or testatrix should sign before the witnesses signed. If the judge was to reject this evidence, he should have indicated why. But he did not deal with it.

For completeness, we should mention that the judge did refer to an inconsistency between what Mr. Thakkar said before the trial and what he said at the trial. The judge described this as "a complicating factor".

Mr. Thakkar was first approached before 25 July 2002 by the Claimants' solicitors, Hughes Fowler Carruthers. They saw him twice, on the second occasion with a Gujarati interpreter, and, in a letter dated 25 July 2002 to Goodman Derrick, they described the result of that interview in this way:

"His evidence was confused, but he did indicate that he recalls seeing the late Mr. Sherrington sign his name on the will."

They recognised that this evidence was contradictory to that of Mrs. Butt who was quite clear that she did not see the deceased sign his name on the Will. Mr. Thakkar was then seen by Mrs. Crumley on 19 August 2002 and in the hour-long meeting she took him through the events, as she put it, "blow by blow" with the assistance of a diagram of the layout of the deceased's office. It is apparent from Mrs. Crumley's attendance note and the statutory declaration that she prepared for Mr. Thakkar, confirmed by her oral evidence, that he told her that he had seen the deceased signing "the document" on all pages and that he was then asked to sign on all the pages which he did, putting his address on the last page, in accordance with the deceased's instructions. We have already referred to the evidence of Mrs. Crumley and Mr. Parmar as to Mr. Thakkar's approval of the contents of the statutory declaration. Mr. Parmar did not give evidence in person because of serious illness but he confirmed the truth of his witness statement dated 29 September 2002 in a further witness statement made in hospital on 10 June 2004.

The judge referred to Mr. Thakkar's oral evidence that he did not see the deceased sign or his signature, and to his explanation that what he said to Hughes Fowler Carruthers was a lie told because he feared for his continued employment by Yvonne. He referred to Mr. Thakkar's further evidence that he repeated the lie because he did not want to change his story. The judge, in finding Mr. Thakkar to be an honest witness trying his best to recall what occurred, appears to have accepted his evidence that he lied to both the Claimants and Yvonne's solicitors about seeing the deceased sign the Will. It is surprising that the judge appears not to have found it necessary to review the detailed and consistent evidence of Mrs. Crumley and Mr. Parmar on this point before reaching that conclusion or to evaluate the plausibility of what would appear to be an implausible explanation by Mr. Thakkar for lying to the Claimants' solicitors. Further, the judge has ignored Mr. Thakkar's oral evidence in which he flatly denied telling the two firms of solicitors that he saw the deceased sign and in which he gave another explanation for not signing the statutory declaration, viz. that it was "half right and half wrong", and in the course of which he even accused Mr. Parmar of lying. In any event, the "lie" to which Mr. Thakkar admitted does not explain why he should have volunteered to Mrs. Crumley his recollection of the incident of the deceased becoming angry with Yvonne.

The fourth aspect of concern is that the judge regarded Mr. Thakkar's evidence as supportive of that of Mrs. Butt. However, the transcript of the evidence of each of them shows that in many respects their recollections appear to have been at significant variance with each other. Whilst he was somewhat inconsistent about whether it was the deceased or Yvonne who asked him to sign the two wills, Mr. Thakkar was clear to the extent that his instructions to sign the wills came directly from each of them in English, and that he never saw the deceased touch either of the wills. On the other hand, according to Mrs. Butt's evidence it was she who at the deceased's request explained to Mr. Thakkar in Urdu that he had to sign the wills and write his name and address, and, even though she came into the office after Mr. Thakkar (according to the evidence of each of them), she said that it was the deceased who put the six sheets of paper constituting the two wills in front of them to sign.

In these circumstances, even taking the evidence given to the judge by Mrs. Butt and by Mr. Thakkar at face value, there were significant inconsistencies between them as to what transpired during this short, but vital, period in which they were both in the deceased's office, when they were signing the two wills.

Moreover, although the judge found that Mr. Thakkar's evidence was to much the same effect as that of Mrs. Butt, and that he neither saw the deceased sign or his signature nor had any intention to attest or verify the deceased's signature, the transcript of Mr. Thakkar's evidence shows that he repeatedly equivocated between saying that he did not know if the deceased signed, that he did not remember if the deceased signed and that he did not see the deceased sign. Nor did Mr. Thakkar give any evidence that he had no intention to attest or verify the deceased's signature. Of course, if Mr. Thakkar was right to say that he did not see the deceased sign or his signature, he could not have had any intention to attest or verify the deceased's signature on the Will. But the judge's finding that the deceased did sign in Mr. Thakkar's, as well as Mrs. Butt's, presence must cast the gravest doubt on that part of Mr. Thakkar's oral evidence where he said that he did not see the deceased's signature.

Let us now stand back and take stock of the probabilities on the issue of due execution. We do so against the requirement, imposed for cogent policy reasons, that, where there is a will signed by the deceased at the foot of the will containing an attestation clause under which the witnesses have signed, the strongest evidence is needed to reject the presumption of due execution. Although the attestation clause in the Will contained imperfections, in that the wrong gender was given to the deceased, those infelicities are immaterial given that the deceased signed against "IN WITNESS whereof I the said Testatrix have signed".

In favour of the judge's conclusion that the Will was not validly executed is the evidence of the two witnesses, and only their evidence. In the case of Mrs. Butt there is her evidence, in answer to the judge's question at the end of her evidence, that she did not intend to witness the deceased's signature in the Will. But, for the reasons given in paras. 45 – 48 above, that is a wholly unimpressive piece of evidence given her categoric evidence that she did not see the deceased sign nor his signature when the judge has found that the deceased did sign in her presence before she signed. In the case of Mr. Thakkar he gave no direct evidence of the lack of intention to attest, but insofar as the judge was drawing an inference from Mr. Thakkar not seeing the deceased sign or his signature, similar comments apply. It seems to us quite impossible to conclude that the judge had the strong evidence on this topic, let alone the "strongest evidence" needed to rebut the presumption of due execution. For the reasons given, the cogency of Mrs. Butt's evidence is open to serious doubt on the judge's own findings, to which doubt we would add the second aspect of concern discussed in paras. 49 – 53 above. As for Mr. Thakkar, even allowing for the fact that he gave his evidence through an interpreter, we regard his evidence as so riddled with inconsistencies that it can come nowhere near to constituting the strongest evidence needed to rebut the presumption of due execution.

Add to that the fact that the deceased was an experienced solicitor likely to have been well aware of the requirements for due execution, and by reason of the third aspect of concern discussed in paras. 54 – 61 above, showing at the very time the wills were executed that he was insistent on compliance with the formalities, and in our judgment the overwhelming probabilities are that the Will was duly executed. Or to put it another way, the strong presumption of due execution in this case from what on its face was a properly executed will has not been rebutted by the evidence of the two witnesses of the Will. In our respectful opinion, the judge was plainly wrong on the first issue and his conclusion simply cannot stand.

(2) Did the deceased sign the Will in the presence of the witnesses?

Having decided that the judge's decision on due execution cannot stand at least on the ground that he adopted, we turn to the point raised on the Respondent's Notice. Mrs. Talbot Rice submits that the judge's conclusion that the Will was not properly executed should be upheld on the alternative ground that the judge erred in rejecting Mrs. Butt's evidence that the Will was duly signed by the deceased before she and Mr. Thakkar signed it. The basis for this argument on fact is the judge's conclusion that Mrs. Butt was "an impressive witness" who had not "in any way consciously or otherwise moulded her evidence to reflect [her husband's] wishes and who had given cogent evidence that the statutory requirements were not complied with" (para. 33 of the judgment). Mrs. Talbot Rice not unreasonably contends that, having so described Mrs. Butt, and having otherwise accepted all her evidence, the judge was scarcely consistent in not accepting her evidence that the deceased had failed to sign his Will before she and Mr. Thakkar signed as witnesses.

In our judgment, this argument suffers from a number of problems. First, for the reasons already given, we cannot accept that the judge was right to regard Mrs. Butt as a cogent witness, or at least a witness whose evidence was cogent enough to displace the presumption of due execution. Secondly, the fact that the judge found Mrs. Butt such a convincing witness can be said to make it particularly difficult for an appellate court to overturn his rejection of the one aspect of her evidence which he did not accept. Thirdly, Mrs. Butt's evidence in this connection was not supported by Mr. Thakkar. He was not able to say that the deceased had not signed the Will before Mr. Thakkar witnessed it. Fourthly, it appears to us that the judge's conclusion as to what happened when the Will was signed has to be viewed in the round. In that connection the essential point, in our judgment, as explained above, is that the judge's rejection of Mrs. Butt's evidence on this crucial issue, on which she was so sure and which founded the primary basis for the Claimants' attack on the due execution of the Will, provides a convincing basis for doubting the judge's reason for finding that there was no due execution. Not least (but not only) because of the strong presumption to which the Earl of Selborne and Lord Penzance made reference, that is far more telling than the converse contention, namely that the judge's reason for holding that there was no due execution should cause one to question his rejection of Mrs. Butt's evidence as to the absence of the deceased's signature before she and Mr. Thakkar signed the Will.

We would therefore dismiss the Claimants' cross-appeal.

(3) Knowledge and approval

The law relating to want of knowledge and approval is not in dispute. A party who puts forward a document as being the last will of a deceased must establish that the testator knew and approved its contents at the time when he executed it. In ordinary circumstances that is established by proof of testamentary capacity and of due execution, from which it is assumed that the testator did know and approve the contents of the will. However, where the circumstances attending the execution of a will are such as to "excite the suspicion of the court", the court will pronounce against the will unless the suspicion is removed. In other words, where the circumstances in which the will was executed give rise to suspicion, there is an onus on the person propounding the will to establish that its contents had the knowledge and approval of the testator.

The principles were laid down in Barry v Butlin (1838) 2 Moo. P.C. 480 at pp. 482,3 where Parke B. identified two rules:

"[T]he first [is], that the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator. The second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased."

Although in Fulton v Andrew (1875) LR 7HL 448 at p. 472, Lord Hatherley referred to "the onus of shewing the righteousness of the transaction", the court is not required to make some moral judgment nor is it given some licence to refuse probate to a document of which it disapproves (see Fuller v Strum [2002] 1 WLR 1097 at paras. 33 and 65). As Chadwick L.J. said in that case at para. 65:

"The question is not whether the court approves of the circumstances in which the document was executed or of its contents. The question is whether the court is satisfied that the contents do truly represent the testator's testamentary intentions."

The fact that an objective approach is to be adopted is illustrated by the decision in Lloyd J in Hart v Dabbs, (unreported) 6 July 2000, to which Peter Gibson L.J. referred in Fuller v Strum [2002] 1 WLR 1097 at para. 34:

"as illustrating the properly objective approach of the court in a case where the suspicion of the court has been aroused."

He summarised that case in this way:

"In that case the propounder of the Will made by a wealthy 74 year old man was a person who was alleged to have killed the deceased unlawfully. The propounder was an executor under the Will, was named as a specific legatee and the sole residuary legatee, had played an active part in the preparation of the Will and organised the process of the signing of the Will by the deceased and the witnesses. There was no professional assistance or involvement of any kind in the will-making process, no evidence that the deceased prepared the Will himself or gave instructions for its preparation, no evidence that the deceased read the Will or had it read to him before or after it had been made or that he retained a copy or, apart from what can be inferred from the evidence that he told one legatee of what he intended to do by his Will (and that was partly inaccurate), that he knew about its terms. The propounder did not give evidence. Nevertheless Lloyd J was satisfied that the Will should be admitted into probate. This was because knowledge and approval could be inferred in all the circumstances. Lloyd J heard evidence from the attesting witnesses that the Will and certain other documents executed at the same time were duly executed, that there was reference during the signing ceremony to the fact that the purpose of the attendance of the witnesses was to witness the deceased's signature of his Will, and that the deceased covered up some of the documents. Lloyd J commented that that evidence showed that the deceased was not being deceived as to the nature of the document he was signing and that he had at least had the opportunity of seeing the documents before they were covered up. Lloyd J also noted that the provisions of the Will were neither complex nor difficult to grasp. He said: "So long as he read the document he would have had no difficulty in taking in its provisions, even if someone else had prepared it." Lloyd J said that apart from the gift of residue to the propounder there was not much in the will to provoke suspicion in itself as being different from what one might expect the deceased to do. Lloyd J found that the evidence showed the deceased to have been alert and not likely to allow himself to be persuaded to do what he did not want to do. On that evidence the Will was admitted to probate."

It will be observed that in Hart v Dabbs the facts included that there was no evidence that the deceased prepared the will or gave instructions for it, or that he read the will or knew about its terms, but that nevertheless knowledge and approval could be inferred in all the circumstances.