BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
IN THE ESTATE OF MR MONIR JAMAN SHAIKH (DECEASED) (PROBATE)
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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(1) MRS MOSAMMAT SHAPNA KHATUN |
Claimant |
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- and - |
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(1) MR SHAMIM HASAN (2) MR RAJESH KUMAR SINGH PATHANIA |
Defendants |
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Mark Evans KC (instructed by Ali Levene) for the Defendants
Hearing dates : 7, 8, 9 and 10 December 2024 and 9 January 2025
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Crown Copyright ©
Deputy High Court Judge Caroline Shea KC:
Parties
Summary of claim and defence
Procedural background
Witness statements – lack of certification
Expert evidence
Production of the original will
"45. A further very relevant consideration, which the judge appears to have completely ignored, is the strong public interest in valid testamentary dispositions being upheld. This public interest is reflected in many of the special procedural provisions which apply to contested probate proceedings, including those relating to the lodging in court of testamentary documents, and the early provision of written evidence about them, to which I have already referred. …
…
48. If the judge had had these considerations in mind, as well as the unsatisfactory procedural history which I have related, she ought in my judgement to have concluded that she could not safely pronounce against the 1998 Will without it being produced to the court, and without an opportunity for evidence to be given by at least one of the attesting witnesses. …
49. In the light of these principles, the judge was in my respectful opinion wrong to pronounce against the 1998 Will on the basis of the evidence as it stood at the conclusion of the trial. She should have appreciated that the issue could not be justly resolved without production of the 1998 Will itself and without hearing evidence from at least one of the attesting witnesses. This would have necessitated an adjournment, but there are occasions, of which this was one, when an adjournment is the price which has to be paid if justice is to be done. It also follows, in my view, that Mrs Payne's applicaiton to adduce fresh evidence on her appeal must be granted, because without the evidence of Mr Gordon the court is unable to pronounce on the validity of the [will] and the interests of justice require that it should be admited to probate if it was validly executed."
"long established rule that [an attesting] witness is treated as a witness of the court, whose duty it is to give to any party who asked for it an account of the circumstances in which the will was executed" (at [48]).
These are necessary evidential requirements concerning the proving of a will, and they must be observed if at all possible.
The law
"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 form of attestation shall be necessary."
"where the forgery of a will is alleged, then the ultimate burden of proving that the will is not a forgery must rest on the party propounding the will as part of the formal requirements of proving that the will was duly executed by the testator and was fully witnessed".
"where forgery or fabrication is raised the obligation on those propounding the will in question will be to negative that contention, as part of the process of establishing the validity and due execution of the will."
However, after a consideration of the authorities on the civil standard of proof where the allegation is one of serious wrongdoing, the Deputy Master went on at [136]
" … while the legal burden of proving each will rests upon the party propounding it, the inherent unlikelihood … that the will in question has been fabricated and forged has the effect, as it seems to me, that, absent the cogent evidence of fabrication and forgery required to make good that contention, the legal burden resting upon the proponent of the relevant will, to establish the authenticity of that will, is highly likely to be made good."
"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 … 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.
"What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given … suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be "vigilant and jealous" in examining the evidence in support of the will (Barry v Butlin (1838) 11 Moo PC 480 at p. 483 per Parke B.)."
Factual background
Claimant's Witnesses
Ms Khatun
Mr Zaman
Mr Hussain
Mr Pandit
Mr Islam
Defendant's witnesses
Mr Siddiqui
Mr Hasan
"You didn't transfer the money. I could have come and give [sic] you the money. Now I will be delayed and in trouble", and a second message "You are reading my message but not answering call. My urgency is not your urgency anyway, AND you have every right to use your phones as you please! ALSO you have your every right to breach your own promise no matter it affects others! Thank you for your favour".
Mr Hasan then sent Mr Shaikh a screenshot of a successful transaction, showing the transfer of £1980 from Mr Hasan's account to Mr Shaikh's account, under the reference "December Rent".
Mr Pathania
Mr Alum
The drafting, execution, and revealing of the Disputed Will
The Disputed Will
(1) The introductory clause identifies Mr Shaikh as residing at Number 47.
(2) Clause 3 states "I have a daughter but have no relationship with her and I live [sic] nothing to her.".
(3) Clause 5 appoints Mr Pathania as the sole executor.
(4) By clause 7 the executor is directed to distribute "all the residue of my estate to Shamim Hasan (DOB: 08/01/1988) …. if he survives me for thirty (30) full days, for his own use absolutely.".
(5) Clause 9 is headed "Wipeout Provision", which directed that the residue of the estate or the amount remaining thereof in England be given to Mr Hasan, and of all Mr Shaikh's United Kingdom properties together with "all benefits of PGA Solicitors" were to be transferred to Mr Hasan. Those properties are listed by address and in one case by reference to a registered title number.
(6) Clause 10 directs that the residue of the estate or the amount remaining thereof in Bangladesh and Pakistan be given to Mr Hasan, and to transfer to Mr Hasan nine properties listed by deed number but otherwise unidentified.
(7) Clause 11 directs that all cash held in four United Kingdom bank accounts (identified by bank, sort code and account number) be given to Mr Hasan.
(8) An unnumbered paragraph states "I bequeath all my worldly belonging [sic] to my nephew Mr Hasan."
(9) Clause 12 is headed "Individuals Omitted from Bequests: MOSAMMAT SAPNA this Will to the above named or provided them with zero shares of a bequest the failure to do so is intentional."
Suspicion
"I write to confirm that Mr Monir Jaman Shaikh left Will to the respective Solicitors under my name. The Solicitors contacted me after passed away of Mr M J Shaikh. The Solicitors informed me that the probate work is might be delayed due to coronavirus situation."
96. I turn now to the final area of doubt, concerning the production of the original of the Disputed Will. There is no hard evidence before the Court as to when the original of the Disputed Will was lodged with the Probate Registry, though it has been suggested that it was sent to the Probate Registry in November 2020. Solicitors acting on behalf of the Claimant asked several times for a copy of the will in the days and weeks following receipt of Mr Hasan's letter of 19 May 2020. By letter dated 23 June 2020, Maudud Solicitors wrote to J Stifford saying that they were instructed on behalf of the Defendants and that they "had been informed that there is an original Will of Mr … Shaikh". Whilst it does not say so in terms, this suggests that the writer had not seen the Disputed Will either in original or copy form at that stage.
"You are not [sic] aware that we cannot disclose you any copy of the will unless lodged with the court …. Just to let you know we DO have original copy of the will which you intend to challenge".
Onus on Defendants
Expert evidence