England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/10/2006

Mr. Justice Evans-Lombe :

1. In this case Abhaya Kumar Bodh ("AKB") the Claimant, claims against Charan Dass Boudh ("CDB") the first defendant and Vijay Kumar Boudh ("VKB") the Second Defendant and son of CDB, a declaration that a will dated the 16^th November 2000 is the last true will of Nami Chumber ("the Deceased") who died on the 30^th November 2002. The Deceased was the mother of CDB, AKB's uncle, and the grandmother of both AKB and VKB. Sohan Lal Bodh ("Sohan") AKB's father died in 1996. The Deceased and her husband Rakha Ram Chumber ("RCC") also deceased had three sons and two daughters and, at the time of her death numerous grandchildren.
2. AKB also claims that probate of a will of the Deceased, dated the 8^th March 2000 granted on the 23^rd May 2003 to CDB out of the Oxford District Probate Registry, be revoked and that he be granted probate of the will of the 16^th November 2000 as one of the executors named in that will, the other executor being VKB.
3. The background facts of this dispute are as follows: AKB's grandparents came to this country some 40 years ago. AKB's grandfather, RCC, had property in India and at some point after his arrival in this country purchased a house at 55 Beaconsfield Road in London ("No 55") where he lived with his wife until his death on the 5^th April 1997. It was AKB's evidence that before the death of his grandfather, when he was visiting them at No 55 he saw a document signed by them both which he thought was a joint will, the effect of which was to give their joint property to himself and his cousin VKB in equal shares. RCC, however, appears to have died intestate. It is common ground that by some undefined process, probably the operation of the law of intestacy, No 55 became the property of the deceased. Before the death of the grandfather AKB's grandparents had become friendly with a Mr and Mrs Ohri whom they first met in 1968.
4. After the death of the grandfather, on the 8^th March 2000, the deceased made and executed a will of that date leaving her entire estate to her eldest son CDB. It is not in issue that this will was duly entered into and, unless revoked by a subsequent will, would have taken effect as the last will of the deceased.
5. Mrs Ohri formed a particularly close relationship with the Deceased because they came from the same village in India. Mrs Ohri's evidence was that the Deceased treated her like a daughter and that she and her husband, who also lived in Southall, were fairly frequent visitors at No 55. It was Mrs Ohri's evidence, challenged by the Defendants, that the deceased told her of the 8^th March 2000 will and its effect but said that she wanted to change this and leave her property equally to AKB and VKB. It was Mrs Ohri's evidence that the Deceased visited her in about April or May 2000 and told her that it was her intention to put this wish into effect. It was Mrs Ohri's evidence that at some time in August or September she arranged to take the deceased to a firm of solicitors, Simon & Co in Southall, in order for the deceased to make a will. She says that she went with her husband and the deceased to the solicitors' office. During the visit the provisions of a will were discussed but the meeting was abortive because the deceased was unable to nominate an executor for her intended will.
6. According to Mrs Ohri the deceased's wish to make a further will did not disappear and she and her husband made enquiries of solicitors for this purpose. Eventually an appointment was made with Messrs Gratian & Co. Again Mr and Mrs Ohri took the deceased to the appointment. Mrs Ohri's initial evidence was that she did not go but in the course of cross-examination she accepted that she went. She explained her change of evidence by a wish not to get further involved in a family dispute which her presence at this important meeting, her husband having died, entailed. It was her evidence that at this meeting a will was prepared and executed by the deceased and witnessed by a solicitor, Mr S. G. Nirmalanandan (a partner in the firm and who was known at his office and to whom I will refer as "Mr Nim") and two members of his staff Mr S. Yogakumar otherwise Mr Kumar Sangara ("Mr Kumar") and Mr J Cheema. Mrs Ohri was given a photocopy of a will, dated the 16^th November 2000, to take away with her. This photocopy will, including a backsheet, consists of three sheets of paper and I will refer to it as "the three page will". Besides Mr Nim the two further witnesses on this will appear to be Mr Kumar Sangara and Mr Cheema.
7. A photostat copy of this will was sent to a handwriting expert jointly appointed by the parties, Mr Godfrey Jenkinson. It is an oddity of this copy will, not satisfactorily explained, that there are three witnesses to its execution by the deceased as opposed to the customary two. It is a further oddity that the signatures of the witnesses appear on a separate page in respect of which Mr Jenkinson noted, at paragraph 10 of his report, had "a coarse digitised image that is not seen in the other two pages of this item." It was his opinion "that this sheet had not been derived through the same copy path as the other two sheets."
8. It was Mrs Ohri's evidence that the meeting lasted approximately half an hour and took place in the early afternoon after which she and her husband returned home with the deceased. She says she had nothing more to do with the matter that day. However as I will later describe there has come into the hands of AKB what appears to be an original will of the deceased bearing the same date as the three page will, the 16^th November 2000. This will is written on one sheet of paper and I will refer to it as "the one page will". The deceased's execution is witnessed by Mr Nim and Mr Kumar only. Whereas in the three page will a "translation clause" appears in type script after the signature of the deceased, on this will a translation clause also appears but in handwriting. The one page will, as I will describe, emerged from the offices of Gratian & Co after that firm had closed down, through the offices of an ex-partner of Mr Nim, a Mr Ratnam. It was found fortuitously in an unconnected file and appears to have been used by Mr Nim as scrap paper because it carries unconnected comments in his writing on its obverse side.
9. The one page will was submitted to Mr Jenkinson also. At paragraph 15 of his report, on which he was unchallenged, Mr Jenkinson expressed his opinion that the signature of the Deceased on the one page will was "more likely that not" that of the Deceased. He was not prepared to express an opinion as to what appeared to be her signature on the three page will but noted "that neither of these two question signatures is superimposable on any other Chumber signature and thus there is no evidence that either has been traced from any other signatures present in this submission."
10. At paragraph 18 of his report Mr Jenkinson expressed his opinion that Mr Nim "probably signed" the one page will "and could well have signed" the three page will. In the course of his oral evidence he expressed the view, unchallenged, that it was to the highest degree probable that Mr Nim signed the one page will and also the three page will. He also expressed the view that the hand written translation clause on the one page will was written in the handwriting of Mr Nim.
11. Mr Cheema gave evidence on a witness summons which I gave on the application of the Defendants. He denied that the signature on the three page will was his signature and that he signed that will as a witness. He said that while working at Gratian & Co he never performed this task. Mr Cheema's evidence was largely unchallenged. Mr Cheema is a fluent Punjabi speaker. While working at Gratian & Co he was a trainee solicitor but is now fully qualified.
12. At paragraph 20 of his report Mr Jenkinson expressed the opinion that Mr Kumar "probably signed" the one page will "and could well have signed the three page will. As to the apparent signature of Mr Cheema on the three page will, which Mr Cheema denies having signed, Mr Jenkinson in his oral evidence, was unable to arrive at any opinion as to whether this will was or was not signed by Mr Cheema by comparing it with specimen signatures given by Mr Cheema, but said that he could not rule out the possibility that Mr Cheema had in fact signed it.
13. As the case was opened by Mrs Drew on behalf of AKB, it was submitted that the one page will was made in the morning of the 16^th November 2000 and that the Deceased was asked to return to the offices of Messrs Gratian & Co in the afternoon when she executed the three page will. It must therefore have been of some surprise to the Claimant's camp, when Mr Kumar was called, that his oral evidence, not presaged in either of his witness statements, was to the effect that the three page will was executed in the early afternoon of the 16^th and that the Deceased was asked to return to the solicitors offices later that evening to execute the one page will. It was Mr Ohri's evidence that, prior to the execution of the will by the Deceased at which she was present with her husband, her husband, who was a fluent Punjabi speaker translated and explained its contents to the Deceased. It was her evidence that when this will was executed there were present Mr Nim and two members of his staff who also signed the will as witnesses. It was her evidence that the deceased approved the contents of the will as explained to her, which contents were also read in translation to her by one of the solicitor's staff members, fluent in Punjabi, at the request of Mrs Ohri.
14. Mr Nim died on the 30^th September 2001 unexpectedly. At the time of his death Mr Ratnam was a partner in the firm and a dispute had arisen between him and Mr Nim which resulted in his reporting Mr Nim and Mr Kumar to the Law Society. As a result of such report the Law Society instituted a disciplinary enquiry into the conduct of the practice of the firm by Mr Nim and Mr Kumar. The enquiry found Mr Nim guilty of unauthorised misapplication of monies held by the firm but acquitted Mr Kumar. As a result of this dispute and of the death of Mr Nim the firm of Gratian & Co was wound up. The documents and files of Gratian & Co thereafter remained and remain in the possession and control of Mr Ratnam.
15. On the 24^th July 2002 Mr Ohri another potentially important witness died. Between late 2001 and early September 2002 AKB, with his wife and small children, went to stay at No 53 with the Deceased who was becoming increasingly ill and needed looking after. It seems clear that CDB objected to this. There are rival accounts by AKB and his witnesses on the one hand and CDB and his witnesses on the other hand, of how each looked after the Deceased, alternatively, abused the Deceased provoking complaints from the Deceased to the other. It does not seem to me to be necessary to decide who is right about this. It is quite likely that there is a measure of truth on both sides. The general impression that I formed was that the Deceased was an old lady who was not above playing off one side against the other when it suited her to do so. In any event AKB and his family vacated No 53 in early September 2002.
16. On the 30^th November 2002 the Deceased died. Before her death and after AKB left her house with his family to return to his own house which had been occupied during his absence by tenants, it seems that the Deceased from time to time resided at CDB's house.
17. Following the Deceased death on the 11^th January 2003 CDB convened a family meeting to discuss the administration and distribution of the Deceased's estate. Again there are rival accounts of what took place at this meeting which was attended, amongst others, by AKB. It appears clear, however, that CDB presented himself to the meeting as the sole legatee of the Deceased under the will of the 8^th March 2000 but intimating that he was prepared to share the proceeds of the estate amongst family members. It is also clear that, at the meeting, AKB did not raise the possibility of the existence of a will of the Deceased subsequent to that will.
18. On the 25^th May 2003 probate of the estate of the Deceased was granted to CDB under the will of the 8^th March 2000. On the 30^th July 2003 letters of administration were granted to CDB of the will of his father RRC, who, as I have previously described, appears to have died intestate. On the 4^th September 2003 the title to No 55, the only substantial asset in the Deceased's United Kingdom estate was transferred to CDB.
19. It was Mrs Ohri's evidence that on the 10^th November 2003 she gave a copy of the three page will, which she had been holding for approximately three years, to AKB. She said that her motive for doing so was the failure by CDB to honour the undertakings to the family that he gave at the meeting on the 11^th January 2003. Thereafter AKB sought to obtain the original of the three page will, a photostat copy of which had been given to him. His researches led him to Mr Ratnam by this time a sole practioner conducting a solicitors practice under the name Stephens Solicitors. Mr Ratnam did not have the original of the three page will but, as he said in evidence, he found, fortuitously, the one page will in another, and irrelevant file of the old firm of Gratian & Co. Initially AKB instructed Mr Ratnam to assist him in obtaining probate of the three page will but they fell out over fees. However AKB has been able to obtain the original one page will which he has had in his possession since February 2006 and which he now puts forward as the last will of the Deceased.
20. In July 2005 No 55 was sold for £223,700. Thereafter CDB has made substantial payments from the funds realised by that sale in favour of his children.
21. There seem to me to be two issues in the case. The first issue is whether I can be satisfied that the one page will now relied on by AKB was duly executed by the Deceased and, secondly, if that issue is decided in favour of AKB did the Deceased know and approve its content when executing the will. It is not in issue that the burden of proof rests on AKB to establish both due execution and knowledge and approval. It is also common ground that, in the absence of suspicious circumstances surrounding the execution of a will, the court will assume that a will, appearing on its face to have been executed by a deceased in the presence of a minimum of two independent witnesses who have also signed the will as such, was properly entered into with the knowledge and approval of the deceased. ("The presumption of validity").
22. Mr Croally contends on behalf of the Defendants that there is ample evidence that the one page will was created in suspicious circumstances and that the presumption of validity is rebutted. He submits that the most important evidence in the case is that of Mr Cheema who is a solicitor, giving evidence under subpoena, having no connection with the Defendants and in respect of whom there is no evidence that he had anything to gain from giving false witness. He was first contacted by Mr Ratnam at the time that he was acting for AKB in March 2004. His evidence has been consistent throughout, namely, that the signature on the three page will purporting to be his is not his. He points out that he is described as a solicitor on the document whereas at the time he was only a trainee. Most importantly it was not put to him, in the course of his cross-examination, that, when he said he never signed the three page will as a witness he was telling an untruth or was mistaken. I agree that, on the authorities, I am therefore bound to accept that Mr Cheema never signed the three page will as a witness, and that in consequence that document, in so far as it purports to be a will of the Deceased duly entered into, was a forgery. In any event I have no reason not to accept Mr Cheema's evidence as accurate and truthful. It is a distinctly unattractive aspect of the way in which AKB's case has been pursued that attempts were made by or on behalf of AKB to prove the three page will notwithstanding that from May 2004 it was known that Mr Cheema was denying having signed it as a witness and that that fact was only brought to the attention of the Defendants shortly before the trial started; see the letter of the 27^th May 2004 from Mr Ratnam to AKB which was in evidence.
23. Mr Croally points to certain unsatisfactory aspects of Mr Kumar's evidence. It was Mr Kumar's oral evidence that the three page will was executed first and that the Deceased came back later in the day and executed the one page will. This is inconsistent with his reference to the three page will as the "second will" in paragraph 9 of his second witness statement and with the evidence of Mrs Ohri, who only describes the execution of one will and whose evidence was that she took the Deceased home after that will was executed early in the afternoon of the 16^th November 2000.
24. It was Mr Kumar's evidence that, as a partial speaker of Punjabi he had attempted to explain the provisions of the will to the Deceased (not mentioned by Mrs Ohri) and that Mr Cheema, fluent in Punjabi translated the provisions of the will to the Deceased and signed it as a witness. Mrs Ohri's evidence does not mention Mr Kumar attempting to explain the provisions of the will to the Deceased, and, if Mr Cheema's evidence is accepted, Mr Kumar's assertion that Mr Cheema signed the will as a witness must have been untruthful. Mr Kumar had no satisfactory explanation for why, as he contended, the one page will was made after the three page will. All the indications are that, as the case was originally presented for AKB, the one page will came first. The material difference between the two wills is that in the one page will the translation clause is written in the handwriting of Mr Nim whereas in the three page will it has been typed.
25. Mr Croally emphasised that, contrary to the evidence of AKB, Mrs Ohri, in her evidence, agreed that the Deceased could not read or write English. It followed that the provisions of a will written in English needed to be translated and explained to her prior to execution in order for her to have the necessary knowledge of its contents and to give her consent to them. Mr Croally pointed out that Mr Kumar did not mention in his evidence that Mrs Ohri's husband translated and explained the provisions of the will she was about to execute to the Deceased as Mrs Ohri described him doing. It was Mr Croally's submission that the addition of the photostat page of the three page will, which included the forged signature of Mr Cheema, was included so that it could be falsely said that there had been present a fluent Punjabi speaker who could translate the will's provisions to the Deceased. The contention that this was done is supported by the evidence of Mr Jenkinson that this page appears to have been produced on a different photostatting machine to that which produced the other two pages.
26. Mr Croally points to the finding of dishonesty against Mr Nim by the Law Society's disciplinary body and the allegations made against Mr Kumar but which were found not to have been established. He points out that no satisfactory explanation was given for why the Deceased was not taken back to Messrs Simon & Co the firm apparently originally consulted about a further will by the Deceased. Mr Croally's submission is that Messrs Gratian were selected because only they were prepared to assist in the production of a will by the Deceased in circumstances where the solicitor could not be satisfied that the resulting will was made with the necessary knowledge and consent of the testatrix to constitute an effective disposition.
27. Mr Croally's submissions were persuasive and clearly have the effect of rebutting any presumption of validity in respect of the one page will. It follows that AKB's case must be made from evidence apart from the mere fact that the document, on its face, appears to have been duly executed.
28. I confess that I have found it particularly difficult to arrive at a satisfactory factual conclusion in order to dispose of the issues in this case. Mr Croally's, primarily written, assault on AKB's case is formidable. I have, however, concluded that I can be satisfied that the Deceased duly executed the one page will with the required knowledge of and consent to, its contents. I have arrived at this conclusion for the following reasons:-

i) I cannot accept Mr Croally's submission that the entirety of AKB's case, primarily dependant on the evidence of Mrs Ohri, is the product of an elaborate deception to which AKB, Mrs Ohri, Mr Kumar and Mr Nim were parties. It seems reasonably clear that there was a meeting at the offices of Gratian & Co on the 16^th November 2000 attended by the Deceased in course of which she executed a will which execution was witnessed by Mr Nim and Mr Kumar. That such a meeting took place is supported by Mr Ratnam, a witness called by the Defendants who confirmed that, initially, AKB came to him because he was in possession of the files of Gratian & Co seeking the original of the three page will. Mr Ratnam described how a search for that original was unsuccessful but how fortuitously there came to light the original one page will from among the Gratian & Co papers. I find it hard to accept that, if the one page will was a complete forgery, produced as part of a conspiracy to which AKB was a party, that it was retained by Gratian & Co, albeit subsequently used as scrap paper, and that AKB would have been unaware of its existence. The evidence of Mr Jenkinson in relation to the signature of Mr Nim on the one page will means that it is certain that it was created before the his death on the 30^th September 2001 at a time when the Deceased was still alive and able to make further wills making the forgery of a will by her a potentially purposeless operation.

ii) Given that the discovery of the one page will establishes that a meeting took place at Gratian & Co on the 16^th November 2000, it is also plain from that document that the purpose of the meeting was for the Deceased to execute a will. It seems to me that I am entitled to assume that, at the meeting on the 16^th, the Deceased had in mind the will which she had made on the 8^th March, eight months before and was intending to make a will whose provisions differed from the provisions of that will.

iii) The provisions of the one page will are simple and do not require complicated explanation. By them the deceased left the whole of her estate to two of her grandsons in equal shares in place of her eldest son.

iv) Subject to the court being satisfied as to the testatrix's knowledge and consent, the one page will is capable of taking effect as such. The three page will if created after it, being a forgery, does not have the effect of revoking it.

v) Given what must have been the purpose of the meeting at Gratian & Co and the simplicity of the resulting will, it is hard to conclude that the Deceased did not intend to achieve the purpose evident from the provisions of that will, namely, to leave her entire estate to her two grandsons, and that the one page will reflects the Deceased's intentions conveyed to Mr Nim and his colleagues by Mrs Ohri's husband.

vi) AKB's case on the circumstances of the execution of the one page will depends on the evidence of Mrs Ohri. In evidence Mrs Ohri accepted that she was a close friend of AKB's mother but said that she was also a friend of other members of the family. Her account of the events leading up to the meeting of the 16^th November 2000 at Gratian & Co had the ring of truth. In particular the preliminary visit to Simon & Co is an odd detail to have invented albeit that the failure to return to Simon & Co with the Deceased was itself peculiar. Mrs Ohri's evidence was that when the Deceased first told her of her wish to alter her will to conform with what she understood to be her husband's wishes she counselled her not to do so until she had formed a clear view as to how her property was to be bequeathed. Mrs Ohri's description of what happened at the 16^th November meeting, save in one respect, seemed to me to have the ring of truth. She described how her husband gave the instructions as to the deceased intentions to Mr Nim, how he, as a Punjabi speaker, explained the will's provisions to the Deceased, translated the provisions to her and obtained her approval. She described how the draft was taken away, typed and brought back. She said that initially there were only four people present including Mr Nim but how later they were joined by two members of the staff. She said that she requested that a Punjabi speaking member of the staff read the provisions of the will to the Deceased in Punjabi. She did not identify one of the two members of staff as Mr Cheema.

vii) Mr Croally, justifiably, attacked Mrs Ohri's evidence on two grounds. The first ground was her late change in her evidence, in the course of cross-examination, to say that contrary to her witness statement, she accompanied her husband and the Deceased to the meeting at Gratian & Co and was present throughout it. Mr Croally described the reason for this, namely, that she did not wish to become too involved in the affairs of the Deceased's family, as unconvincing. Why make a statement at all? Secondly Mrs Ohri's reasons for not going back to Simon & Co, namely, initially, that that firm had closed, and then, when it was shown that Simon & Co had not closed indeed that Mr Cheema was working for them and they had handled the conveyancing of No 55 in 2004, because they were insisting on the nomination of an executor, were demonstrably wrong or irrational.

viii) I accept that these are blemishes on Mrs Ohri's evidence. However, given the circumstances of the discovery of the one page will, its simple provisions, and Mr Jenkinson's evidence that it was probably executed by the Deceased, it does not seem to me that these blemishes justify the rejection in its entirety of Mrs Ohri's evidence as pure invention. Whereas, in my view Mr Kumar's evidence was unreliable, in my judgment Mrs Ohri's evidence was consistent with the two documents in the case and otherwise I am satisfied that she was doing her best to assist the court truthfully.

ix) It seems to me that the likelihood is that, in accordance with Mrs Ohri's evidence, there was only one meeting on the 16^th November and that was in the early afternoon. The product of the meeting was the one page will the extremely simple provisions of which were read to the Deceased in translation and explained to her by Mr Ohri. Later at the instance of Mrs Ohri a Punjabi speaking member of the staff of Gratian & Co again translated the provisions to the Deceased. In signing the will as a witness Mr Nim added, in his own handwriting, a translation clause. It was then thought necessary to retype the will and the Deceased signed the first of the retyped pages. There is no evidence of whether the Deceased's signature on the retyped will was witnessed and if so by who . The product of this retyping was the first and third pages of the three page will to the photostat copy of which was added, falsely, the second page containing a purported signature of Mr Cheema who was a fluent Punjabi speaker. I confess to a degree of puzzlement about this aspect of the case. Given that it seems to me to be established that a meeting took place on the 16^th November with the object of enabling the Deceased to make a new will, I can see no motive other than perhaps convenience for forging the signature of Mr Cheema. It is not, so far as I am aware, a requirement for the enforceability of a will made by a non English speaker, but using the English language, that one of the witnesses has translated the English text to the testator before execution.

x) I do not accept Mr Croally's submission that no viable reason was shown for why the Deceased wished to change her will. Mrs Ohri's evidence that this was because, at that time, she had fallen out with her son, who she thought was bullying her, is entirely plausible. There is a tendency of a particular sort of old lady to be continually changing the provisions of their wills depending on their feelings for their close relations existing from time to time.

xi) I am not prepared to place any reliance, one way or the other, on the witness statement of Mr Mahi who did not attend for cross-examination. Mr Mahi was the Deceased's next door neighbour. The fact that at one stage, while the Deceased's husband was alive, they fell out with their neighbour, and court proceedings ensued, does not mean, necessarily, that some years later, and after the death of the Deceased's husband, Mr Mahi did not become a good neighbour of the Deceased.

xii) Given Mrs Ohri's relationship with the Deceased's family it seems to me to be not beyond the bounds of possibility that she did not tell him about the existence of a later will of the Deceased until she gave him her copy of the three page will on the 10^th November 2003 as she described in evidence. Even if AKB was aware of the possible existence of a later will by the time of the family meeting on the 11^th January 2003 his explanation, that he thought that his side of the family would benefit as a result of the promised distribution by CDB, seems to me to be an acceptable reason for his keeping quiet.

xiii) Finally it seems to me to be not insignificant that the will being put forward by AKB was not exclusively for his benefit, but for the benefit of himself and the second Defendant, CDB's son.

29. For these reasons, in my judgment, the Claimant's action succeeds and he is entitled to relief accordingly. I will hear counsel on the wording of the order which follows.