Jersey Unreported Judgments

Trust - application to call a handwriting expert.

[2024]JRC100

Royal Court

(Samedi)

25 April 2024

Advocate P. C. Sinel for the Plaintiffs

Advocate J. P. Speck for the First Defendant

Advocate D. Evans for the Second and Third Defendants and First and Sixth to Twelfth Third Parties

Advocate P. G. Nicholls for the Second to Fifth Third Parties

judgment

the deputy bailiff:

1.        At a directions hearing on 19 February 2024, I directed, inter alia, at paragraph 3 of the order:

"in respect of the proposed application for leave to call a hand writing expert in relation to the signature on the Second Defendant's Will in connection with a potential issue as to validity and the relevance of that Will in these proceedings, the Plaintiffs have leave  to file a short skeleton argument in support of that contention no more than 10 pages in length within 14 days of today, the other parties having 14 days to respond with short skeleton arguments; the Court will thereafter resolve the issue on the papers."

2.        Subsequently, and in compliance with this direction, a Skeleton Argument was filed on behalf of the Plaintiffs on 1 March 2024, to which the Second and Third Defendants replied by undated Skeleton Argument, received by the Court on 15 March 2024.  No other parties made submissions.

3.        The test for the admission of expert evidence is one of necessity - is it necessary for such evidence to be procured in order to resolve an issue within the parties within an appropriate timeframe and in a proportionate manner?  My attention was drawn to the Expert Evidence Practice Direction RC17/09. 

4.        The Plaintiffs make various submissions about their wish to see an unredacted copy of the Will of PK who died on 30 March 2022.  The Second Defendant is pleaded to be executor of the estate of PK and participates in the proceedings in that capacity, as well as in his personal capacity as Third Defendant.  Nearly two years ago, in July 2022, the Plaintiffs asked for a copy of the Grant of Probate and the Will. 

5.        A redacted copy of the Will has been produced and it has been said, and having seen the same I agree, that the copy of the Will provided was a poor one.  No Grant of Probate can be produced as probate has not yet been sought or granted. 

6.        There is a dating issue on the Will as the date 2012 has been crossed out and replaced with 2016.  Certain other dating is unclear.  It is said on behalf of the Second and Third Defendants that there are good reasons for not providing an unredacted copy of the Will and as this is not an application for specific discovery, I make no order in relation to disclosure to the Plaintiffs of the unredacted Will.  The Plaintiffs have been asking for the unredacted copy of the Will and inspection of the original for some time.  They also ask, now they know that no Grant of Probate has been secured, why this is the case.  This may be subject to a request for further information in due course, but my role is simply to determine whether the Court should grant permission for instruction of a handwriting expert / experts.

7.        In the Second and Third Defendants' Answer and Counterclaim at paragraph 2.6, it is pleaded that the Third Defendant is the executor of the Second Defendant's estate, having been named as such by the Second Defendant's Last Will and Testament.  The pleading goes on to say that no Grant of Probate had been issued by the Kenyan Courts.  The Counterclaim is pleaded on behalf of both Second and Third Defendants.

8.        In the Plaintiffs' Reply to the Second and Third Defendants' Answer and Counterclaim at paragraph 6.2, the Plaintiffs state that they do not understand how or on what authority the Third Defendant can purport to act on behalf of his late father, PK, and state that in the absence of the Third Defendant demonstrating title, the Second Defendant's Counterclaim is liable to be struck out. 

9.        Specifically, the Plaintiffs say that they "question the validity of the will, including the dates and signatures contained therein.  The Plaintiffs reserve their position in relation to the validity of the will".

10.     In correspondence, the Plaintiffs ask a number of questions in relation to the execution of the Will, some of which might be resolved by the instruction of a handwriting expert; others of which are likely to be a matter for evidence in due course.  The Plaintiffs make the general point that the Third Defendant's approach has been, so far as they are concerned, to "obfuscate and be secretive about PK's Will.  This serves to raise suspicion". 

11.     The Plaintiffs also submit that pursuant to Article 19 of the Probate (Jersey) Law 1998 the production of a grant of probate is necessary to establish a right to recover or receive any part of the moveable estate situated in Jersey of a deceased person.  I need not rule on that for the purposes of this application.

12.     Nonetheless, it is clear that the Plaintiff puts in issue both the validity of the Will and the Second Defendant's assertion that he is executor of the estate of PK and, as such, entitled to maintain the Answer and Counterclaim on behalf of the estate. 

13.     In response, it is argued that the Plaintiffs' issue with PK's Will is not validity, but the redactions to it.  However, that is not the way the case is pleaded by the Plaintiffs.  The Plaintiffs' assertion that there are question marks about the validity of the Will on its face are not without foundation.  There is some merit in the Third Defendant's assertion that some of the Plaintiffs' wider assertions as to the validity of the Will may well be wide of the mark, and he is correct when he asserts that there is no plea by the Trustee defendant to the affect that when determining to implement the agreement at the centre of this dispute, it took into account how PK proposed to divide his estate by Will.  However, there are many issues in this case, and the validity of the Will of PK is simply one of them.  Ultimately, the cost of instructing a handwriting expert is a discrete issue and the instruction of the same is unlikely to add to the costs of these proceedings or the length of the trial.

14.     Accordingly, I direct that:

(i)        the parties, if possible, jointly instruct a handwriting expert (whose first duty is owed to the Court - see paragraph 1 of the obligations of an Expert attached to the Expert Evidence Practice Direction).  This is consistent with the terms of the Practice Direction (paragraph 4); and

(ii)       the expert be permitted to consider the unredacted original Will. 

15.     The expert must take care not to relay to the Plaintiffs the portions of the Will which the Third Defendant wishes to redact in their report.  But it would be artificial for an independent expert to have to examine the redacted Will for the purpose of producing an expert report.  The parties need to agree the terms of the instruction and should do within fourteen days.  If they cannot do so, then the Court will determine what form the instruction should take having regard to the written submissions of the relevant parties.  The parties will need to provide suitable samples of the handwriting of PK, particularly his signature, and, if appropriate, the signatures of the witnesses. 

Authorities

Practice Direction RC17/09. 

Probate (Jersey) Law 1998