Validity – incorrectly executed Will – Ahluwalia v Singh [2011] 1 All ER 113

 In Wills

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The issue in this case is quite simply whether the two purportedly attesting witnesses were in fact both present when the deceased signed his Will. There was a pretty standard attestation clause and there were two witnesses who signed in the allotted spaces below the testator but the deceased’s daughter, Balvinder, argued that the deceased signed the Will in the presence of just Mr Grantham at his house and subsequently obtained Mr Ahluwalia’s signature, who was not present at the same time.

The facts

The deceased, Ranjit Singh, died on 23 March 2009. Probate of his Will was granted to Mr Singh’s eldest son, Jarnail, the other executors (the Principal Officers of Hinckley & Hunt Executor Company Limited) renounced. If the Will was incorrectly executed Mr Singh would die intestate and his six children would share his estate.

In fact the existence of the Will had not been immediately apparent on Mr Singh’s death and two of his sons had applied for a Grant of Letters of Administration on the assumption he died intestate. Jarnail eventually found the business card of an employee of Hinckley & Hunt and enquiries of that company unearthed the Will which they held in safe custody.

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The Will provided for two of the three daughters to be given a legacy of £20,000 each; the third daughter not being provided for because she had borrowed money from the deceased in 1979 and not paid it back. The residue was then divided between the three sons. His estate on death for probate purposes was valued at £872,890.

The evidence in the case centred in part around Mr Singh’s ability to communicate in English – Balvinder claiming his English was poor and the others saying he could speak and understand English very well, although his accent was strong which sometimes made it hard to understand him.

There was also some evidence that Mr Singh did not always do things correctly in so far as he did not deal with his tax affairs appropriately and on one occasion purchased the wrong sort of car.

After Mrs Singh died in 1997 he seemed to rely more and more on Balvinder, his daughter, who moved in with her children, after her own marriage broke down, about a year before Mr Singh’s death.

Mr Grantham was Mr Singh’s next door neighbour and he gave evidence as to how he and his wife assisted Mr Singh and Balvinder and enjoyed their hospitality from time to time. In a witness statement he said that on what he thought was 3 May 1999 Mr Singh visited him in his house while he was alone and asked him to witness his signature on a document. Mr Singh did not explain what it was but he did witness the signature. He was certain Mr Ahluwalia was not present.

Balvinder, a qualified solicitor practising as a shipping litigator, was approached on several occasions after her father’s death by Mr Ahluwalia, a longstanding family friend, who said that Mr Singh had made a Will to her advantage. He had acted as a witness but when quizzed as to who else had been present he said he had been alone with Mr Singh who had already signed the document. He subsequently denied this claiming that he would not have signed it on his own given the terms of the attestation clause but he could not recall whether he had signed the Will or when it was signed. His evidence was deemed not to be credible.

Jarnail, also a solicitor but specialising in crime, was put on notice of Balvinder’s findings about the execution of the Will so the Court was surprised that he was able to swear an oath that the Will was a true Will the day after she made him aware that only Mr Grantham was present when the Will was signed.

Whilst it was apparent that Balvinder did not get along with her brothers and was not a good witness the Judge clearly felt that her narrative of the key events was genuine and accurate.

The law

The relevant law as to the presumption of due execution was considered and restated in Sherrington & Ors v Sherrington [2005] EWCA Civ 326 (22 March 2005); Sherrington v Sherrington [2005] WTLR 587 in which it was made clear that the presumption of proper execution is very strong where the Will contains an attestation clause and there are signatures by the testator and two witnesses. It was also said that where the witnesses had died the presumption will prevail.

In Sherrington Lord Justice Neuberger gave two reasons for requiring the strongest evidence to overturn the presumption:

  1. Practical – oral testimony as to the way in which a document was executed many years ago is inherently unreliable; despite doing their best people completely misremember and the longer ago it is the less accurate their recollection will be.
  2. Principle – as a matter of principle it should require strong evidence to displace the apparent wishes of the testator as expressed in a Will that appears to be properly executed – to overturn it needed evidence of how the ineffective execution could have happened.

It was noted by the Judge that counsel on both sides had in fact not been able to come up with any decided cases where the presumption had been successfully rebutted.

The decision

The Judge decided that probably the Will writer provided an explanation to Mr Singh of what was required to execute a valid Will but Mr Singh probably got the wrong end of the stick and cut corners in getting it witnessed. He preferred Mr Grantham’s evidence to that of Mr Ahluwalia so that Balvinder on balance had produced sufficient evidence to rebut the presumption of due execution. Thus an intestacy resulted.

Practice points

  1. Always try and supervise the execution of a Will – it hopefully reduces the risk of incorrect execution.
  2. Always leave clear, written instructions as to how to go about signing a Will if it is not possible to supervise the execution yourself.
  3. Always ask the testator to return the Will for checking which you should check before storage although this will only highlight obvious anomalies and would not have helped in this case.
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