Ark & Ors v Kaur & Ors [2010] EWHC 2314 (Ch)

Case No 7BM30047[2010] EWHC 2314 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BIRMINGHAM DISTRICT REGISTRY, Birmingham Civil Justice Centre, Bull Street, Birmingham B4 6DSDate 17 September 2010
Before
HHJ DAVID COOKE
Between
Satnam Singh Ark (1)ClaimantsBhavan Singh Ark (2)ClaimantSarban Singh Ark (3)ClaimantManraaj Singh Ark (4)ClaimantKulvinder Kaur (1)DefendantsDeljit Kaur Malhi (2)DefendantSukhvinder Kaur Sandhu (3)Defendant
Stephen Eyre (instructed by Field Overell) for ClaimantsJames Newman (instructed by Heer Manak) for Third DefendantHearing Hearing dates: 10-13, 16-19 August 2010
JudgmentHHJ David Cooke:Introduction
[1]In this action the claimants, represented by Mr Eyre, seek probate of an alleged will of the late Tarsem Singh Ark, which I will refer to as "the will", said to have been executed by him on 21 November 2005 at Nawanshahr in the Indian Punjab. All the parties and many of the witnesses are closely related and for convenience and clarity I will refer to them for the most part by their first names, without of course intending any disrespect. The first claimant is Tarsem's only son Satnam, and the second and third and fourth claimants are Satnam's infant sons, who sue by their mother as litigation friend. It is their case that under the will they inherit between them the entire estate, with land and properties owned by Tarsem in England and India being left to Satnam, and monies held in various bank and other accounts being left to the grandsons.[2]The three named defendants are Tarsem's daughters, who are left nothing by the terms of the will but who would, together with Satnam, inherit the whole estate (or at least that in England) if there were an intestacy. All three entered caveats, but only the third defendant has entered an appearance to the warning issued by the first claimant. Although the first and second defendants filed defences, the first defendant has taken no part in the action for some time now, and no order is sought against her by the claimants. The second defendant participated in the action until shortly before trial when she came to terms with the claimants under which she agreed to make no claim against the estate, and they agreed to make no claim for costs against her. In order that she should not have to attend the trial, except as a witness, I made an order on the first day of the trial discharging her as a party. The opposition to the claim at trial comes from the third defendant Sukhvinder, represented by Mr Newman, to whom I am grateful for having stepped into a case with a great deal of evidential material at short notice.[3]Sukhvinder's case at trial is that the will was not executed by Tarsem, or alternatively that if he did execute it, he did so without the requisite knowledge and approval of its terms, or while subject to undue influence. In the further alternative it is alleged that if the will is valid, on its proper interpretation it disposes only of Tarsem's property in India, leaving his estate in England to pass under the English rules of intestacy.[4]Tarsem was killed in a road traffic accident in his village in India on 24 November 2005, three days after allegedly executing his will. The evidence in this case includes a very great deal of allegation and counter allegation about the events following his death, and particularly the conduct of the claimant and the defendants at that time. There were hints, to put it no higher, by the defendants that there was some connection between the alleged execution of the will and the death. An earlier trial date was vacated in order that the defendants might obtain further evidence to support any allegations they might have made. In the end, on instruction Mr Newman made clear that there was no suggestion that Satnam was in any way involved in his father's death. As a result a substantial amount of the written evidence was rendered irrelevant.[5]Underlying the allegations of lack of knowledge and approval and undue influence, is the defendants' contention that it is inconceivable that Tarsem could have made a will in these terms, it being said to be contrary to Tarsem's previously known affections and intentions, in that it is said that he was on bad terms with Satnam but on good terms with his daughters and had previously indicated to them his intention that they should inherit on his death. It is said that he had previously declined to make a will in England, and that it is suspicious that he should do so shortly after going on a visit to India. In particular, there has been a substantial factual conflict over the allegations made by the defendants that Tarsem, whose wife died in 2001, made his final trip to India with the secret intention of marrying again, and that when Satnam found out about this he flew after his father intending to get him to change his mind, as he had done successfully on a previous occasion in 2003. It is suggested that having failed to achieve this he coerced his father into making a will in which all his property was left to Satnam and his own sons. Satnam's case is that there was no such marriage or intended marriage at all, on either occasion.[6]I summarise the relevant factual background briefly as follows. The deceased Tarsem Singh Ark was born in 1938 or 1939 (there are different dates on different documents) in the village of Malpur Arkan in the Punjab, the son of Ujaggar Singh. He was married to Gurdev Kaur Ark and appears to have come into this country to live in Coventry in about 1965, shortly after the birth of their eldest daughter Kulvinder. The other three children were born in England. Over the years Tarsem owned a number of shops and acquired other properties. In particular he owned a freehold shop with flat above at Windmill Drive in Coventry, known as the Arkan Minimarket, which I will refer to as "the shop".[7]The first and third defendants, Kulvinder and Sukhvinder have been married three times and twice respectively. The second defendant, Deljit was married in 1995, and was in the process of an acrimonious divorce from her husband at the time of the alleged execution of the will in 2005. The first claimant, Satnam, was married in 1993. It is common ground firstly that relations have never been good between Satnam's wife and any of the defendants, and secondly that Satnam and his wife went through a period of matrimonial difficulties, from which their relationship has fortunately recovered.[8]The shop appears to have been run as a partnership between Tarsem and Satnam. The sign above the door referred to the proprietors as "T S Ark & Son". In 1993 an application was made for an off-licence in Tarsem's name, which was refused. A renewed application was made by Satnam, which was successful. Sukhvinder's written evidence claimed that she was a joint applicant for that licence, but it is clear from the documentation that that is not so. In her oral evidence she said that she had played a part in the application on the recommendation of the consultants who advised the family, giving evidence to the licensing justices about her relevant experience as a person who would be involved in the management of the shop. Between 1993 and 2002 the off-licence was maintained and renewed in Satnam's name.[9]Tarsem's wife died in January 2001. By that time it appeared he wanted to reduce the amount of work he was doing in the shop, but not to sever his connection with it entirely. In November 2002 he entered into a five-year lease of the shop to Sukhvinder, although he remained living in the flat above the shop. It is Sukhvinder's case that her father entered into this lease against Satnam's wishes, he having urged his father to let it to one of his friends. Satnam accepts that he would have preferred that it be leased to someone else, but says that he accepted his father's wish and the lease to Sukhvinder was made with his consent. Sukhvinder's evidence is that she cared for her father whilst he was living upstairs at the shop, and as a result of the disputes with Satnam and particularly his wife, Tarsem had little to do with Satnam from then on. Satnam disputes the level of care provided, and says that he maintained a normal loving relationship with his father, who was a virtually daily visitor to his own home.[10]In 2003 Tarsem went to India, to stay in his village of Malpur Arkan. It is Sukhvinder's case that he had said that he was lonely following the death of his wife and announced his intention to find a new wife who would be prepared to marry him, return to this country and look after him here. It seemed to be accepted by all the witnesses that it would have been possible for Tarsem to have arranged this at fairly short notice. It is common ground that Satnam followed his father to India, where he stayed for a few days and then returned. Sukhvinder's case is that this trip was made because Satnam had learned of his father's intention to remarry, and went out to persuade him not to. On her evidence, Satnam did this by promising that if his father did not remarry, he would see more of Satnam and his grandsons than had previously been the case. Satnam's evidence is that this is all invention, and the reason for his trip to India was to see his grandfather Ujaggar Singh, who was elderly and unwell. He points out that after his own return, Tarsem stayed on in India for a further period of several weeks, when he could have married if he had wished to do so.[11]In October 2005, Tarsem went back to India to attend the wedding of the first defendant's son Amardeep Singh. The first defendant herself was of course in India for the wedding, but her sisters and Satnam did not attend. Sukhvinder's case is that on 15 November 2005 she received a phone call at 2:30 AM from the first defendant to tell her that their father had arranged to marry again, with a religious ceremony to take place three days later on Friday 18 November. That in turn would have been followed by a civil ceremony at which the marriage would have been registered, one week later on Friday, 25 November 2005. On her case, this news appears to have caused consternation within the family. She asked her husband to telephone Satnam (because she was not speaking to him herself) which he did at 9.30 the same morning. Satnam immediately booked a flight to India departing on 16 November, with the purpose of preventing the marriage from taking place. Her evidence as to what followed comes in part from what Satnam himself is said to have reported in regular phone calls to her husband keeping him abreast of the situation as it developed.[12]It is common ground that Satnam went from the airport in India to his mother's village, Durgapur, rather than straight to Malpur Arkan. On Sukhvinder's case, this was to drum up support from maternal relatives to persuade his father not to marry. Satnam says it was a social visit which he always made on trips to India, to show respect to his mother's family. On arrival in Malpur Arkan on 17 November Sukhvinder's case is that Satnam broke into the house at which his father was staying and took away his passport and return ticket to England. Thereafter they met and had an angry confrontation, although Satnam did return the passport and ticket. His father refused to back down from his proposal to marry and they parted on terms that "you have died for me and I have died for you". Satnam went to the local temple and persuaded the priest not to conduct any ceremony between Tarsem and his proposed bride.[13]The intended bride was a divorced lady who lived not far away, called Kulvinder Kaur. In this judgment from now on references to "Kulvinder Kaur" are, unless the contrary appears, to the intended bride, as distinct from the first defendant whom I will refer to as such. I heard evidence from Kulvinder Kaur, and from one of her sons, Gurvinder Singh.[14]On Sukhvinder's case, Kulvinder Kaur met Tarsem on the morning of 18 November 2005. They discovered that the priest at the temple in Malpur Arkan would not conduct the ceremony, and instead the wedding party went to another temple at the nearby village of Hiala, where the religious ceremony was performed. Arrangements had been made for the registration of the marriage at a civil ceremony a week later on 25 November 2005. This was referred to by the witnesses as the "court wedding". It is accepted by both parties that the marriage would not be recognised by Indian law until the court wedding had taken place. Kulvinder Kaur's evidence was that the couple would not live together in the meantime, and so she went back to her own home after the religious ceremony.[15]Satnam's case is that none of these events took place. He went to India because his father on arrival told him that his grandfather was ill and had asked to see him. He stayed at his grandfather's house, met Tarsem and they had a pleasant time in the village meeting and talking with relatives and old friends. There was no argument, he did not take his father's passport or ticket, he made no visit to the temple and Tarsem did not go through any religious wedding ceremony. Satnam does not give evidence himself about the making of the will on 21 November, saying that he was unaware of it until told by his grandfather after Tarsem's death. But he produced testimony from a number of witnesses, which I will come back to in more detail in due course, that at or about 10:30 in the morning of Monday 21 November Tarsem went to the office of a deed writer in Nawanshahr, Mr Brar, with two witnesses. He there gave Mr Brar instructions to prepare a will, which was signed in front of the two witnesses and taken in front of the local sub registrar, Mr Charnjit Singh, and registered at 2:47 PM, a time which is printed on the back of the will. Tarsem then returned to Malpur Arkan, but did not apparently tell Satnam that he had made a will.[16]Sukhvinder's case is that this cannot have happened. Kulvinder Kaur and her son Gurvinder gave evidence that about 11:00 or 11:30 on that morning Gurvinder met Tarsem at Malpur Arkan and took him at his request to the house of his brother-in-law Dalbir Singh at Durgapur, which is about 10 Km from Malpur Arkan, where there was a meeting between Dalbir, Tarsem and Satnam. Gurvinder did not take part in the meeting himself, but at some point there was an argument outside the house between Satnam and himself, the implication being that Satnam was angry when he found out that Gurvinder was a son of Kulvinder Kaur, as a result of which he, Gurvinder, left at about 1:30 or 1:45 PM. If this is right, it rules out Tarsem having been in Nawanshahr continuously from about 10:30 on that morning, and it was not suggested that there would have been time to travel to Nawanshahr, go through the process of drawing and executing the will, attend the sub registrar and go through his formalities to the point where the time could be applied to the will by 2:47.[17]Satnam was en route to the airport on 24 November in a taxi when he received a telephone call to say that his father had been involved in an accident. He returned to the village, where he found that his father had died. At some time later he says he was told by Ujaggar Singh that his father had left a will. There is a great deal of dispute between Satnam and the defendants about the events at that time and thereafter; the defendants say that Satnam at first told them that their father had only been injured and not killed in the accident, and later sought to deter them from seeing his body by saying that he had suffered serious facial injuries, when in fact he had not. The defendants say that Satnam did not tell them about the will until many weeks later, and was evasive when they asked for a copy of it. All of this is denied and I do not propose to go into it in detail because, as I have said above, any hint that Satnam had in some way been involved in his father's death was expressly abandoned on instructions by Mr Newman. It follows that these events go at most to credibility and, for reasons which will become apparent, I have not had to have recourse to them to decide the issues in this case.

The issues and the law

[18]With that very brief outline of the factual history, I move on to the issues between the parties and the relevant law. The factual issues are essentially three; whether Tarsem in fact executed the will, if so whether he did so with the requisite knowledge and approval of its contents, and lastly whether his execution of it was procured by undue influence. There was no significant difference between counsel as to the principles of law to be applied or that the burden of proof in respect of execution and the issue of knowledge and approval falls on Satnam as the person propounding the will, but any allegation of undue influence must be proved by the person making it, in this case Sukhvinder. It is further accepted that in this type of case, undue influence means coercion. These principles were succinctly set out by Rimer J, as he then was, in Re Good [2002] EWHC 640 (Ch) where he said this:
“107. The burden of proving that a testator knew and approved of the contents of his will lies on the party propounding the will. In the ordinary course, the burden will be discharged by proving the due execution of the will and that the testator had testamentary capacity. Where, however, the will was prepared in circumstances exciting suspicion, something more may be required from those propounding the will by way of proof of knowledge and approval of its contents. The relevant standard of proof is, however, simply by reference to the balance of probability: see Fuller v. Strum [2001] EWCA Civ 1879; [2002] 2 All ER 87, Court of Appeal” and as to undue influence: “121. [counsel for the defendants] accepted that the burden of proving that the May will was procured by undue influence on the part of the Carapetos lies squarely on the defendants. He disclaimed any suggestion that in circumstances such as those of the present case there is any scope for a presumption that undue influence was brought to bear on Miss Good, such that the burden is on the Carapetos to rebut it. 122. In this context, undue influence means coercion. The defendants have to show that, one way or another, the Carapetos so manipulated Miss Good that she felt she had no choice but to make the May will. In Wingrove v. Wingrove (1885) 1 PD 81, Sir James Hannen said in the course of his address to the jury (at p. 82): “To be undue influence in the eyes of the law there must be - to sum it up in a word - coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness' sake, to do anything. This would equally be coercion, though not actual violence. These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, 'this is not my wish, but I must do it.'... There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.” 123. It is, therefore, necessary for the defendants to prove that the Carapetos so overbore Miss Good as to induce her to make the May will when she would not otherwise have done so. It is not enough for them to prove merely that the Carapetos may have made appeals to Miss Good's affection and to have sought to persuade her to reward her by making generous provision for them in her will. The distinction between legitimate persuasion of this nature and illegitimate coercion - or undue influence - is also illustrated by part of the direction to the jury given by Sir J.P.Wilde in Hall v. Hall (1868) 1 P & D 481. He said (at p. 482): “To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else's.” ” “To be undue influence in the eyes of the law there must be - to sum it up in a word - coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness' sake, to do anything. This would equally be coercion, though not actual violence. These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, 'this is not my wish, but I must do it.'... There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.” “To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else's.” ”
[19]Issues of lack of knowledge and approval on the one hand, and undue influence on the other, are treated in the authorities as separate. In one sense of course it could be said that a person who was only making a will in particular terms because he had been coerced into doing so does not approve of the contents of the will. But in this context, knowledge and approval of the contents means only that the testator knows that he is making a will, knows what the terms of it are, and intends that those terms should be incorporated into and given effect by the will. In some cases there may also be a question as to whether the testator understood the effect of those terms. These are the elements that the propounder must prove. Once he has done so, any contention that the testator's intention to make a will in those terms only came about as a result of coercion must be positively proved by the opponents of the will.[20]Mr Newman submits that this is a case in which the court's suspicions about the execution of the will should be excited, so that the evidence should be closely examined to see whether the propounder has satisfied the burden on him. Mr Eyre's submission was that the evidence of the events surrounding the execution of the will clearly satisfies this burden, no matter how anxious the scrutiny of it, and is very strongly indicative of the answer to questions of undue influence as well.

The will

[21]The will itself is handwritten in Punjabi script by Mr Brar. It takes up just under two sides on separate sheets of green foolscap paper referred to by Mr Brar as "petition paper". Each sheet has affixed to it a two rupee court fee stamp. The first sheet has a photograph of Tarsem Singh affixed at the top, with what is purportedly his signature across it. At the foot of the second sheet are attestation clauses and what purport to be the signatures of Tarsem Singh and the two witnesses, Sohan Singh and Mohinder Pal. On the back of the second sheet there is a page of printing applied by the sub registrar, mostly in Punjabi script but showing in English the heading "Will" and the purported date and time of registration, being "21/11/2005" "Monday" "2:47:56 PM". This page also contains a number of signatures apparently made by the sub registrar, and further signatures purportedly of Tarsem Singh and two witnesses. The whole will has been laminated. Satnam accepts that he did this when the will was given to him, on his account in order to preserve it as an important document. There has been much complaint about the fact that this has had the effect of making it more difficult for the forensic handwriting experts to examine the signatures.

Evidence as to execution

[22]Those experts were Mr Hughes for the claimant and Dr Giles for the defendant. They have filed reports which are largely in agreement. As well as the will itself, they also examined photocopies of a second handwritten document retained in the registry at Nawanshahr, which is a copy of the will also written out by Mr Brar, though not a photocopy. Although their conclusions varied in respect of some of the signatures on the document, in general they were cautiously supportive of the proposition that those signatures purporting to be Tarsem's were in fact his. They were not called to give oral evidence.[23]Mr Taranjit Singh Sidhu Brar travelled to England specially to give evidence for the trial, and brought with him his original logbooks which were presented for examination. He is a deed writer of long standing, having been in practice since 1980, with an office in Nawanshahr, and provided evidence of his professional qualification in that role and his license to practice, which is given after an examination and requires to be periodically renewed. He is not the only deed writer in Nawanshahr, but is acquainted with Tarsem's family in a professional capacity, having acted as a scribe in respect of a number of earlier documents, being a will of Ujaggar Singh made in 1993 and two agreements relating to shares in land made in 2000, one between Tarsem and his brother Ajit Singh, and the other between Tarsem and Ujaggar Singh.[24]Mr Brar said that he recalled the day on which the will was executed. He described the process leading to the execution of the will. He said that Tarsem had come to his office early in the morning, at 9 or 9:30, with the two witnesses. One of the witnesses was a "Lumbradar", Sohan Singh. The position of Lumbradar is translated in the documents as "headman", but as explained by various witnesses it does not appear to be a position of authority over other members of the village. Sohan Singh himself explained that there were three Lumbradars in Malpur Arkan. He is put forward for the position by members of the village and confirmed in it by a government official. He is provided with identity documents to confirm that he holds that position. Part of the role is to act as a witness when documents are required to be executed for official purposes by members of the village and, importantly, to vouch for the identity of the person signing the document and any other witness. Mr Brar said that people who came to him to have a document scribed would normally attend with a Lumbradar from their village and any other required witness.[25]Mr Brar said that there was no one other than the two witnesses with Tarsem, and specifically not Satnam. Tarsem had explained to him what he wanted to be written in his will, and he had made rough notes of these instructions. He then wrote up the will on petition paper which Tarsem had brought with him, and made a second copy for retention by the sub registrar. He read out the terms of the will as he had written it to Tarsem, slowly, and was satisfied that he understood them. When Tarsem confirmed that he agreed the terms of the will, Mr Brar made an entry in his logbook, and the will was then signed by Tarsem and the two witnesses. Mr Brar had applied the photograph of Tarsem to the first page of the will, and required Tarsem to sign the photograph when he had done so.[26]The original of the log book was produced. It is a fixed leaf book containing notes of all documents scribed by Mr Brar. The entries in it are made in his own handwriting, and contain a summary of the terms of each document, and a reference number which corresponds to a number written on the document itself. The book covers a considerable period before and after the date in question. The page on which the entry for Tarsem's will appears also contains entries relating to other documents made on the same day, which Mr Brar described as a busy one. The entries appear one after the other, with no gaps between them, and this particular entry occupies the greater part of the page. There was at one stage a suggestion that the log book might have been concocted afterwards, but it is difficult to see how this could have been done as it would not be possible to insert an entry between others already on the page. No such suggestion was put to Mr Brar.[27]Tarsem and the two witnesses then left Mr Brar's office and went into the sub registrar's building to complete the registration, taking both copies of the will. Mr Brar did not go with them; it was not necessary for him to do so although he said he might if it was someone he particularly knew. He had other clients to deal with. When they came out, Tarsem Singh said that he wanted to make an affidavit confirming the fact that the will had been made. This is not a necessary part of the procedure, but, Mr Brar said, something that some people did in order to announce publicly what they had done. Mr Brar was busy with other clients, so the affidavit was prepared by one of his assistants, Mr Surjit Singh. That affidavit in turn was attested in front of a magistrate on the same day, and has on its reverse a printed record, apparently made in the magistrates office, recording the date and time (3:23:32 PM) and the fact that Tarsem identified himself with a photograph and identity card. Its contents were then advertised in a local newspaper, the advertisement appearing on 24 November 2005. It does not appear that Mr Brar played any role himself in taking the affidavit to the magistrate or placing the newspaper advertisement, but he was clearly in a position to say that the affidavit had been prepared by his assistant, and he had seen Tarsem's affidavit and the newspaper advertisement when he made his own affidavit.[28]Mr Brar was asked a number of questions about why the will as written made express reference to the fact that it was not being executed under pressure of any kind. He said that he regarded it as part of his job to enquire as to whether a document was being executed freely, and he always did so and recorded it in the document. He confirmed that Tarsem had expressly confirmed that no one had pressurised him or threatened him, and did not appear to be nervous in any way or acting under pressure. Mr Brar was asked whether he was surprised that Tarsem had left all his property to Satnam and his grandsons, and nothing to his daughters, to which he said that it was his duty to ask how many children a testator had and what they wanted to leave to each one. He had done that on this occasion. He had put in the will exactly what Tarsem told him, which he regarded as entirely a matter for Tarsem since it was his property that was being disposed of.[29]No challenge was made to Mr Brar's honesty as a witness. It was suggested that he could not be expected to remember the amount of detail he said he did after a period of nearly 5 years, but it is a matter that he has been asked about on numerous occasions in the intervening period, so I do not find it surprising that he had a direct recollection of these events. It was suggested that the content of the will might not have been what Tarsem had wanted because the note made in the logbook did not set out all the terms of the will, referring only to the dispositions of land and not the monetary requests to the grandsons, and contained a number of minor discrepancies from the wording of the will. Mr Brar accepted that in principle the logbook ought to correspond with the will, but said that it did record the most important part, i.e. the gift of the land. I am unable to see how the facts that what is bound to be a brief note of a longer document does not contain all the terms of it, or that the note may have been inaccurate in minor aspects, mean that the will does not record Tarsem's instructions. Neither the logbook note nor the affidavit makes any reference to a gift to the daughters, so it cannot be suggested that they provide any support for the contention that Tarsem wanted to make a gift to them but it was not reflected in the will as drawn. I accept Mr Brar as a truthful and accurate witness.[30]I also had evidence, by video link from India, from the two witnesses to the will, Lumbradar Sohan Singh and Mohinder Pal. The Lumbradar said that he had been asked by Tarsem, on the morning of the 21st, to go and witness his will. He had gone to Nawanshahr with Tarsem in a car. Satnam was not with them, nor was he in Nawanshahr. Tarsem had told him that he was going to make a will and leave his land to Satnam and his money to his grandchildren. He was not leaving anything to his daughters because they were married and "he has given them everything". They had arrived at Nawanshahr at about 10 AM and gone into the scribe's office where Tarsem told the scribe what he wanted and it was written down. They had then "gone inside", by which he meant into the sub registrar's building, where they had all signed the document and a photograph was taken. The terms of the will had been read out to Tarsem both by the scribe and by the sub registrar.[31]There was one point in the Lumbradar's evidence at which he said that only he and Tarsem had been present, when someone appeared to prompt him and he then said that Mohinder Pal had been present as well. Plainly, he should not have been prompted, but I do not think this casts any doubt on his evidence as a whole; there is abundant other evidence that Mohinder was present, and in my view the failure to mention him initially was no more than a lapse of recollection. I accept Sohan Singh's evidence.[32]Mohinder Pal is a long-term acquaintance of the Ark family. He had previously acted as witness to at least two of the earlier documents written by Mr Brar. He knew Satnam as well as Tarsem, and said that Tarsem had his own property in Malpur Arkan, in addition to the house owned by Ujaggar Singh. Because Tarsem lived most of the time in England, he left the keys with Mohinder, who would go round to the property once a week or so to check that everything was all right. Tarsem had asked him to be a witness to the will, and on the morning of 21 November he had travelled to Nawanshahr on his own motor scooter. He said that he arrived at about 10:30, and that Tarsem and Sohan Singh were waiting for him because he was slightly late. They had gone in front of Mr Brar where Tarsem had told him what he wanted to be written in the will. He had said that he wanted his property to go to his son and his money to his grandsons, and although he had daughters they were married and he had given everything to them. Mr Brar had read the will to Tarsem and he had been signed it. When they went in front of the registrar, Mohinder's evidence was that the registrar had arranged for a photograph to be taken and for the document to be signed, but the will had not been read out again. In that respect, he disagreed with Sohan Singh's evidence.[33]Had Mohinder Pal's evidence stood on its own, I would have had some doubts about it, arising from the fact that he seemed very anxious to say that Tarsem had wanted to leave all his property to his son and nothing to his daughters, to the point where he mentioned that repeatedly even in response to questions which did not call for such an answer. But it does not stand alone, and is very much in agreement with the evidence given by Sohan Singh (except on the one point I have referred to above) and by Mr Brar. I therefore give it slightly less weight than the evidence of those other witnesses, but nevertheless regard it as supporting the claimant's case on the events surrounding execution of the will.[34]The sub registrar, Charnjit Singh Naib Telsidar, gave evidence by video link from Italy. He is no longer sub- registrar at Nawanshahr but now holds a post on behalf of the government of the Punjab, acting as an official on special duty responsible to the finance minister of that government. He too said he recalled that occasion on which Tarsem had come to register his will, and described the procedure in front of him. Tarsem had come and produced the two copies of the will to him, in order that it could be registered. He, Charnjit Singh, had read it out to Tarsem and asked questions about it. The Lumbradar, whom he knew, had confirmed that the person in front of him was the applicant Tarsem Singh, and identified Mohinder Pal as the other witness. A photograph was taken and put on to his computer, which then printed the wording on the back of the will with a copy of the photograph. The photograph would show the applicant, Lumbradar and the witness. The applicant and witnesses then signed what had been printed on the document. The applicant was asked again whether he was doing this of his own free will or whether anyone was oppressing them to execute the document. One copy was given back to the applicant, and the second retained for the sub registrar's records.[35]The wording printed on the document refers to thumb prints as well as signatures, and Charnjit Singh was asked why no thumbprints were taken on this occasion. He said that this was standard wording and it was not necessary to do so, although thumbprints were usually taken in the case of people who were not sufficiently educated to sign the document, and sometimes even if they could sign it. Either a signature or a thumbprint was sufficient to authenticate the document. He was also pressed as to why the Lumbradar had not applied his official stamp to the document, and said that although the Lumbradar had an official stamp it was not necessary for him to use it in all cases, his signature was sufficient. It was put to him that Mohinder had said that he had not read the will out to Tarsem, which he firmly denied. It was also suggested that he would be unlikely to remember this particular occasion and he was firm in maintaining that he did.[36]Although Charnjit Singh was pressed hard on aspects of this procedure which could have been done differently, such as insisting on a thumbprint or a stamp by the Lumbradar, none of that in my view detracted from his evidence that Tarsem Singh had appeared before him, been identified by the Lumbradar, been photographed and signed the document in front of him on that date and at the time recorded on it. I accept his evidence as that of an honest and reliable witness. I also accept his evidence, in preference to that of Mohinder Pal, that he read out the terms of the will to Tarsem (as indeed the standard wording printed on the back of the will records) and satisfied himself that Tarsem was making it of his own free will.[37]Although the photograph scanned onto the will by the computer is not of particularly good quality, it is in my view sufficiently clear that the individuals shown on it are Tarsem Singh, Sohan Singh and Mohinder Pal, with the registrar Charnjit Singh in the foreground.[38]Given all this evidence, if the will was not in fact executed by Tarsem in the manner that it appears to have been, this can only have come about as a result of a conspiracy involving, among others, Mr Brar, Charnjit Singh, Sohan Singh and Mohinder Pal. Sukhvinder has commenced separate proceedings in India challenging the validity of the will, in the course of which a pleading has been filed by a lawyer acting on her behalf alleging such a conspiracy and that the will had been created on a later date. There are further allegations that someone impersonated Tarsem, and that the document has been forged by obtaining Tarsem's signature on blank paper and writing the words of the will above it afterwards. These allegations are, of course, mutually inconsistent. When Sukhvinder was asked about these in her evidence she said that she did not know that these allegations had been made, and that she had left it to her lawyer, and to a relative acting as her attorney, to decide what to do. That relative was Mr Kundun Singh, and he gave evidence seeking to put the responsibility on the Indian lawyer and saying that he had simply signed a document prepared by that lawyer. I did not believe either of these accounts. In Sukhvinder's case, she has had ample opportunity since this particular issue has been raised in the course of these proceedings to take steps to instruct the Indian lawyer to withdraw the allegations, but there is no evidence that she has done so. She does not now support any of those allegations, and none of them was put to the witnesses in this case. The fact that she was prepared either to authorise these wild and unsubstantiated allegations, or to have them maintained when they came to her attention, is very damaging to her credibility.[39]When she came to give her own evidence, having heard the evidence of Mr Brar, Charnjit Singh and the two witnesses to the will, Sukhvinder was questioned closely by Mr Eyre as to whether she still believed that Tarsem had not been present to execute it. After a long series of somewhat evasive answers in which she seemed unable to accept the truth of the evidence that had been given, Sukhvinder eventually accepted that Tarsem had signed the will on that day.[40]I find therefore that the will was written by Mr Brar based on instructions given personally to him by Tarsem Singh, and that the content of it was consistent with those instructions and confirmed by Tarsem after it had been read back to him. Further, that Tarsem expressly confirmed to Mr Brar that he was giving these instructions of his own free will and not because he had been threatened or put under pressure by anybody. I also find that the will once written out was signed by Tarsem and the two witnesses, Sohan Singh and Mohinder Pal, who were all present at the same time while each of them signed. I am not able to determine with any precision the time of day at which execution took place, save to say that it was obviously some time before 2:47 PM, when the registrar's printed form of attestation was applied to the back page. I am also satisfied that the will was read back to Tarsem by the sub registrar, and that he again confirmed that he understood it, that it represented his wishes and he was making it freely.[41]That deals with the issue as to the fact of signature by Tarsem Singh. I should say that it is also accepted that these findings are sufficient to establish the due execution of the will, whether this is determined under English or Indian law. The claimants' case (which is not disputed) is that although the will was executed in India, Tarsem Singh was at the time of execution domiciled in England and so the requirements for due execution are to be determined under English law in accordance with s9 of the Wills Act 1837. However, and this is also accepted by Mr Newman, even if Tarsem Singh had been domiciled in India at the time of execution, the requirements of Indian law as to execution are substantially identical, and the will if duly executed under Indian law would, by virtue of s1 of the Wills Act, also have been regarded as duly executed for the purposes of English law. Finally on questions of formal validity, it is accepted that the religious ceremony of marriage would not have had the effect, under English or Indian law, of revoking the will, although the position would have been different had the civil or "court" wedding occurred.

Knowledge and approval of the contents of the will

[42]These facts are also in my view decisive of the issue as to knowledge and approval. Mr Newman raised a number of matters which he said ought to excite the suspicion of the court as to whether Tarsem knew and approved the contents of the will. The same factors are urged as relevant when considering the issue of undue influence. They are: i) The alleged good relationship between Tarsem and his daughters, contrasted with a poor relationship between Tarsem and Satnam. ii) The alleged previous promises that the daughters would inherit on his death. iii) The will made no specific provision as to what was to happen to the shop, although Tarsem knew that Sukhvinder who was running the shop was estranged from Satnam, and her five-year lease had by then expired. iv) The will states Tarsem's age as "about 64". In fact if he was born in October 1938, as stated in some documents, he would have been 67, and if born in October 1939, as appears on other documents, you would have been 66. v) The will states that Tarsem has married all his daughters, "having incurred a lot of expenditure" whereas the daughters do not consider that the cost of their weddings was high. vi) The will recites that all three daughters are married and "living happily with their respective in-laws" although Tarsem knew that the second defendant was not happily married as she was going through a divorce. vii) If suggested that it was in accordance with tradition to pass all the estate to the male children if the daughters were married, Tarsem had already acted inconsistently with that tradition by in effect transferring the shop to Sukhvinder viii) The will recites that Satnam is taking care of Tarsem, but this is disputed by the defendants ix) The defendants assert that Tarsem had adopted a western rather than a traditional Punjabi way of life, and that it was inconsistent with this to leave nothing to his daughters x) The will refers to property in Malpur Arkan, although Satnam denies that Tarsem owned any property himself in the village. This is a somewhat strange point, given that it is the defendant's case that Tarsem did in fact have a house in Malpur Arkan. Insofar as it is relevant at all, I am satisfied that Tarsem did own a house in Malpur Arkan, since it was specifically referred to by Mohinder Pal and also mentioned by other witnesses. xi) The will does not give full particulars of all the land owned. xii) It was said that Tarsem had not previously expressed any intention of making a will, or even that he had previously refused to do so. xiii) It was surprising that when Tarsem had lived in England for more than 40 years and conducted his business life here using solicitors and accountants in this country, he should suddenly make one during the course of a relatively short visit to India. xiv) Before leaving to go to India, Tarsem was said to have given financial documents to his accountant to keep safe because he did not trust Satnam to have them.[43]A more typical case in which it is said that the court's suspicion should be excited is where it is shown that one of the beneficiaries plays a role in obtaining the execution of the will, for example by preparing it himself, giving instructions himself to the solicitor to draft it, or taking the testator to a solicitor and being present while instructions are given or while the will is executed. However Mr Newman submits that there is no limit to the range of circumstances which may excite suspicion, relying on Tyrell v Painton [1894] P 151. I do not accept that submission. This issue is dealt with in Williams, Mortimer and Sunnucks at paragraph 13-34, where a number of cases are cited drawing back from the apparent width of the proposition expressed in Tyrell v Painton, and putting forward two propositions to be derived from them, firstly that the rule as to excitement of suspicion is only engaged where the circumstances alleged have at least some relevance to the preparation and execution of the will, and secondly that the court will not allow that rule to be used as a screen for allegations of fraud and dishonesty, which must be pleaded and proved. The same in my judgment applies to questions of undue influence.[44]Of these points, the alleged inaccuracies in the will as to Tarsem's age, the state of the second defendant's marriage and the amount spent on weddings are said to be things that Tarsem himself would have got right if he had been making the will, the inference being either that Tarsem was not present, or if he was, the information used to compile the will did not come from him. To that extent they have relevance to the preparation and execution of the will. However, Tarsem may well not have shared his daughters' views as to the degree of expense on their weddings, and even if it is accepted that Tarsem would have known that the other statements were not fully accurate, in my view any inference that can be drawn from them goes nowhere near outweighing all the other evidence that Tarsem himself was present and personally gave instructions for the preparation of the will.[45]All the other points, it seems to me, do not bear on the process of preparation and execution of the will, and are not in my view matters which should be treated as exciting suspicion in relation to his knowledge and approval of the contents. At the most they can be taken as general indications that Tarsem might have been expected either not to make a will at all, or to make a will in different terms, for instance leaving something to his daughters. When considering the issue of knowledge and approval of the contents of the will, as I have said above the propounder is required to prove only that at the time he made the will the testator knew that he was making a will, knew the terms to be incorporated in it and intended that those terms should be incorporated and given effect by his will. Any inferences which can be drawn from these points are it seems to me of very little weight indeed given the direct evidence referred to above.[46]I am satisfied, therefore, that Tarsem Singh had the requisite degree of knowledge and approval of the contents of his will when he executed it.

Was the will procured by coercion?

[47]Undue influence, it has been said, is rarely capable of direct proof, and must usually be inferred from the surrounding circumstances. If it is to be inferred however, it must be the only reasonable inference from the facts proved, and not merely one of a number of possible explanations. The onus is on Sukhvinder as the defendant opposing the will to satisfy the court that the execution of the will was procured by coercion. Only the first defendant was in India at the material time, but her evidence did not speak directly of any persuasion applied to Tarsem in her presence. The other two defendants were in England, and all three of them speak only of their understanding that various members of the family sought to persuade Tarsem that he either should not marry, or should make a will leaving something to Satnam. Sukhvinder said it was her understanding that Satnam had told his father in the course of the alleged argument on 17 November, that if Tarsem got married (rather than if he did not make a will) he would never again see his grandchildren. This appears to be second-hand hearsay, since she did not speak to Satnam himself but relies on what her husband told her that Satnam had said to him. In the course of her oral evidence, when asked whether it was her understanding that Satnam had gone to India to stop the wedding, she agreed with that, but then said that she believed Satnam's intention in going to India had also been "to get his inheritance". This appears to be the inference she has drawn from what she has been told about events in India in which members of the family sought to persuade Tarsem to make a will. None of the defendants therefore gave any direct evidence about those events.[48]Sukhvinder produced evidence from a number of witnesses that Tarsem was placed under pressure by Satnam and other family members in India either not to marry Kulvinder Kaur, or if he did so, to make a will. I summarise that evidence as follows.[49]The first witness was Gurpreet Singh, who is a brother of Sukhvinder's husband Lakhbir Singh. He said that he was telephoned by Lakhbir Singh on 15 November and asked to go to the airport to collect Satnam on his arrival the following day. He took Satnam to Durgapur and then on to Malpur Arkan. According to his affidavit, during the journey Satnam had told him how his father was getting married, and that he was upset and wanted his father to give him a share of his property. He, Satnam, "would do everything he could to stop him getting married." This phrase was put to him in cross-examination, and he did not confirm it. What he said then was that Satnam had told him that the marriage was not a good thing for the family, that it was wrong, would be shameful, would disgrace the family, and would result in people teasing the family.[50]Gurpreet said that Satnam had visited his own house on Sunday 20 November, to pay the travel costs. In his oral evidence, Gurpreet said that Satnam had also come to see his own father, in order to ask him to persuade Tarsem not to marry. That is not mentioned in his affidavit, which on the contrary says that Satnam came with his (unnamed) uncle, told Gurpreet that the family were still trying to get Tarsem to change his mind and to make a will leaving something to him, but that his father was refusing. According to the affidavit, Gurpreet offered to do "anything we could to help" but Satnam said "if he is not listening to his own family he would not listen to anyone else".[51]Gurpreet said that he received a call at his family home on the morning of 23 November from Satnam's aunt, requesting Gurpreet and his father to go to Malpur Arkan and persuade Tarsem to make a will. They had gone, and met the aunt and Ujaggar Singh, that Tarsem had not been there. In his oral evidence he says they were told by the aunt on the telephone that Tarsem wanted to get married and was refusing to make a will. When they arrived at Malpur Arkan they found out that Tarsem had in fact already married, but their conversation with Ujaggar Singh and the aunt was all on the premise that no will had yet been executed. Gurpreet Singh's opinion was that the will was fraudulent.[52]I find it difficult to accept his evidence. Gurpreet Singh's village is apparently one and a half hours away from Malpur Arkan. It is difficult to believe that Satnam would make a journey of that length to pay a relative for having driven him from the airport. If he was going to pay, why not on that day? The reason given, that Satnam had no Indian currency with him on arrival, seems lame. Satnam was a frequent traveller to India and if he had not retained any local currency from previous trips would have been able to get it at either airport. What was said in oral evidence about Satnam's request for assistance from Gurpreet's father does not ring true. It was not just a late addition to what was said in the affidavit, but a complete change of position - in the affidavit, Gurpreet offered help from his family, but Satnam said it would do no good. In the oral evidence, Satnam was actively requesting such help, indeed it was a major reason for his making the trip. By 23 November, Tarsem was not only married but had made a will. If Gurpreet is right, the aunt did not know about the marriage when she made a telephone call that morning asking Gurpreet and his father to go to Malpur Arkan, but she had found out by the time they arrived. This does not seem likely, as the wedding is not said to have been a secret. On the other hand, it would not necessarily be inconsistent with Satnam's evidence that neither she nor Ujaggar Singh knew about the will, notwithstanding that it had been executed two days before, because Tarsem does not seem to have told Satnam about it.[53]I am not satisfied that Satnam said to Gurpreet that he "would do anything to stop" the wedding. Even if the remainder of Gurpreet's evidence is right, it amounts only to showing that Satnam's opinion that it was wrong for his father to marry, and that that opinion was shared by other family members who sought to persuade Tarsem not to do so, or to make a will. One might very well expect that members of the family would be concerned that if Tarsem were to remarry, his property should not pass out of his present family. Such a consideration might be less than noble, but there would be nothing wrong in urging that opinion on Tarsem unless the means by which it was done amounted to coercion, and Gurpreet's evidence says nothing at all about the means that may have been used.[54]Kundun Singh also gave evidence by video link. He is a nephew of Tarsem's deceased wife, and lived for a period in this country with Tarsem and his wife. His only evidence relating to the events I am concerned with in India in November 2005 was that on the afternoon of 24 November Tarsem came to his house to visit him and his brother and take part in a religious ceremony. His affidavit said that he was accompanied by an "unknown young man", and that the next day, after Tarsem's death, Satnam had told him that Tarsem had gone through a religious marriage with a woman, that the registration of marriage was due to have been that same day, and that he, Kundun, had enquired who the "unknown young man" was and been told by Satnam that it was her son. In his oral evidence however he said that Tarsem had told him who the young man was while at his house, in which case there would have been no need to enquire of Satnam.[55]I was not impressed by Kundun Singh as a witness. Apart from this conflict with his written evidence, he is also the person who acts as attorney for Sukhvinder in relation to her Indian proceedings in which the various lurid allegations of forgery and impersonation have been made and not withdrawn. When he was asked about these, Kundun Singh at first said that he had been responsible for giving instructions to the lawyer about the content of the pleading, but then retreated from that and sought to put the blame entirely on the lawyer. In any event, his evidence is of no assistance in determining whether Tarsem was coerced into making a will.[56]Kulvinder Kaur also made a witness statement and came to England to give evidence. She said that she had spoken to Tarsem on the evening of 17 November, and he had told her that Satnam had taken his passport ticket and money and that they had had a heated exchange "and that Satnam had said that he is dead for him and so were his grandsons if he continued with his wedding plans." Her witness statement said nothing at this point about Satnam urging his father to make a will. She went on to describe the day of the wedding, arriving at the Temple in Malpur Arkan and finding that the priest had been persuaded or bribed not to conduct the ceremony, and that they then went to Hiala where the ceremony was performed. She referred to the meeting on the following Monday (21 November) when her son had gone with Tarsem to Durgapur, but left Tarsem there after arguing with Satnam. She said “later on Tarsem came back to my house he was so angry with Satnam that he did not know about any commotion or argument that had taken place because he was inside the house and no one had told him what happened he thought that his stepson had left him because he had to get the bus to my house. ”[57]In her oral evidence she said that Tarsem had arrived back at her house at about 2:30 PM. The next day, Tuesday 22nd, she said that Tarsem “was very anxious and worried. He was not happy with the acts and omissions committed by his son, he had totally disowned him he refused to speak to him ever again. I spoke to Tarsem and he refused to listen to anything and refused to utter his name, he was so angry with him.” On Wednesday 23rd, she said that Tarsem had gone to her house and was relieved that Satnam would be going back to England the next day. “Tarsem explained to me that Satnam was pressurising his family members to convince him to leave some inheritance for him. I was told by Tarsem that his daughter's father-in-law had been called to his father's house, he was very hurt that Satnam wanted to obtain some inheritance and that he was determined to get something from him.”[58]I cannot accept this evidence as correct. If, as I have found, Tarsem was in Nawanshahr registering his will at 2:47 PM on Monday 21st he must also have been there for some time beforehand. Mr Brar thought that he had arrived at his office about 9:30 AM; Mohinder Pal suggested about 10:30. If they are right, Tarsem cannot have gone to Durgapur in the morning. It was not suggested that it would have been possible for him to go first to Durgapur and then to Nawanshahr in time to make the will, and even if an attempt were made to construct a timetable which would have allowed him to do so, he cannot possibly have left Durgapur at or after 1:30, still less been at Kulvinder's house at 2:30 or anything like it.[59]It is not credible that Tarsem can have made his will in favour of Satnam and his sons on Monday 21st, and then have told Kulvinder Kaur that he had disowned his son the following day. Nor is it likely that Tarsem would have been telling Kulvinder on Wednesday 23rd that Satnam was pressurising the family to persuade him to make a will if he had already made such a will two days earlier.[60]The nearest to a detailed description of the alleged persuasion came from Lakhbir Singh Sandhu, Sukhvinder's husband and brother of Gurpreet Singh. This of course was also hearsay evidence since he was not in India at the time. In his witness statement at paragraph 23 he said he had spoken to Gurpreet on Sunday 20 November, the day when Satnam is said to have gone to Gurpreet's house to pay for the travel costs:
“ 23 …Gurpreet told me that he had asked about the situation with Satnam and that he had replied that his father had got married and that he was not agreeing to leave him anything, meaning of land in India or anywhere. He said that they had not spoken to each other since then and they were giving out of each other's way. Satnam told Gurpreet that he was came back to England tomorrow (21.11.2005) anyway. Satnam was with his uncle and they did say that no matter what everyone was saying to my father-in-law and pressurising him to put it down on paper something for Satnam, however, my father-in-law was not listening to anyone…”
[61]Lakhbir said he had spoken to his father on 23 November, the day on which his father and Gurpreet are said to have visited Malpur Arkan at the request of Satnam's aunt:
“25. I called later on in the day to see if they got back and if they had any luck with my father-in-law, I spoke to my father who said that they had waited all day for Tarsem but he did not come, and that they had not seen Satnam either and from what they were told he was staying in Durgapur with his uncle. 26 My father did tell me that Sukhvinder's grandad [Ujaggar] had spoken to my father about what my father-in-law had done, my father knew of him getting married in England because Sukhvinder's cousin Amrik had told him. Sukhvinder's grandad was saying that father and son had really fallen out badly, they have had a very heated argument, the grandad was not happy he wanted my father to speak to my father-in-law to get him to change his mind, the aunt also spoke about the same too, they just wanted my father-in-law to put it on paper that he would give him something, as the new wife had two sons, they were worried that Satnam would get left out of his father's estate. ”
[62]The reference to getting married in England must be a mistake. Taking the rest of this evidence at its highest, it seems to me that it shows only that members of Tarsem's family were concerned that his marriage to Kulvinder Kaur might mean that some or all of this property would go to her or her sons, and that he should make a commitment by his will to leave some property to his son by his first marriage, who after all was their relative as well. This sort of appeal to kinship loyalty is, it seems to me, precisely the sort of consideration which may legitimately be urged upon a testator without it amounting to undue influence unless the methods of persuasion are such that they amount to coercion. The fact, if it be true, that Tarsem was at first unwilling, and that this led to a heated argument (even if the argument is assumed to have been about making a will, whereas the other evidence seems to suggest that it was more about whether he should marry or not) and that Tarsem thereafter apparently changed his mind would not in my view lead to an inference that he must have been coerced; he may just as well have been persuaded.[63]Sukhvinder produced hearsay evidence by witness statements from three other witnesses who did not appear to give oral evidence, Amarjit Gurman, Sewa Singh and Bhavna Makwana, but none of these took matters further on issues relevant to the question of undue influence. She also called Barbara West, a family friend who said she was present while various telephone calls were made to India by Lakhbir and Sukhvinder, but whose evidence as to what had happened in India was inevitably hearsay of a further degree. Kirandeep Kaur, an employee at the shop, gave evidence that Amrik Singh, who had given a witness statement for Satnam denying the wedding but was not called at trial, had gone to the shop and admitted to Sukhvinder that his evidence was false and he would not give it on oath. Her evidence did not bear on the question how Tarsem came to decide to make the will.[64]There is therefore in my view no evidence, either direct evidence or hearsay evidence, of anything which could properly be said to amount to coercion being applied to Tarsem. Nor in my view can any inference be drawn from various other matters relied on by Mr Newman that Tarsem's decision either to make a will, or to make one in the terms that he did, must have been procured by coercion.[65]It was said that Tarsem had been opposed to making a will in England, and even that he was determined not to do so. However when Sukhvinder called Mr Ramesh Pau, Tarsem's accountant, Mr Pau said that he had discussed making a will with Tarsem on a number of occasions and advised him to do so, and Tarsem had said that he knew he ought to make a will and that he would get round to it. Far from being unwilling to make a will, this seems to show that Tarsem intended to make one at some stage.[66]The defendants and their witnesses gave evidence of Tarsem's alleged poor relationship with Satnam, and more particularly with Satnam's wife. That may well be their perception, but I am satisfied that it is not the whole story. Mr Eyre rightly laid stress on the evidence, which I accept, that Tarsem asked Satnam to purchase the tickets for his visit to India, that Satnam did so and had them sent to his own address, and that Satnam picked up Tarsem and took him to the airport on the day he flew out. A few months earlier, in July 2005, Tarsem had put £3000 of his own money into an ISA account in Satnam's name. Satnam says that this was a gift to him. Mr Pau's evidence seemed to be that he had advised Tarsem that he had used up his own ISA allowance but that he could place a further amount in Satnam's name. He said that this would have to be presented as a gift in order to secure the tax advantage, but it would still be Tarsem's money. Whether the truth was that the £3000 was a gift to Satnam, or the apparent gift was a sham and Tarsem trusted Satnam to give the money back if requested, this transaction can only have taken place if there was a reasonably good relationship between father and son, rather than the estrangement that Sukhvinder presented.[67]The defendants gave evidence that their father had previously indicated that they would inherit something on his death. It seemed to be accepted that the traditional approach would be that once daughters had been married they were the responsibility of their new families and their father would leave his property to his male descendants, but the defendants said that Tarsem had adopted a western way of life and would not have been expected to follow this tradition. I do not regard their evidence on that point, which is disputed and evidently self-serving, as strong.[68]Mr Newman also relied on evidence from Mr Pau that prior to his departure Tarsem had passed certain documents to him with instructions that he should keep them because he did not trust Satnam. I do not accept that evidence. Mr Pau's oral evidence was at variance in a number of respects with his witness statement, and I was left with the impression that his witness statement had been written by someone else in language going beyond what Mr Pau was prepared to say and designed to serve Sukhvinder's case. In other respects, his evidence cannot have been correct at all, for instance when he said that Tarsem had told him on the day of departure that he was going to India, but that Mr Pau should not tell Satnam as he did not want Satnam to know. I cannot believe that Tarsem said any such thing when it is clear that he had previously made arrangements for Satnam to buy his tickets, and to take him to the airport.[69]None of the matters relied on by the defendants to suggest that Tarsem either would not have made a will at all, or would not have made one exclusively in favour of Satnam and his family at their highest go any further, in my judgment, than to raise a weak inference. Even taken alone they would be nowhere near showing that the only reasonable explanation for the will that was in fact made is that Tarsem was coerced. It is not suggested that Tarsem was weak or vulnerable to family pressure; on the contrary if the account of Sukhvinder's witnesses is correct, the primary focus of family opinion was that he should not get married, but he was able to resist that because he did go through with the religious ceremony, getting round the obstacles that Satnam is said to have erected by blocking the ceremony at the temple in Malpur Arkan, and arranged the court wedding to follow. In the end, in my judgment, any inference that Tarsem would not have wanted to make a will is greatly outweighed by the evidence, which I have accepted, that Tarsem confirmed to Mr Brar and to Charnjit Singh that he was executing the will of his own volition.[70]Accordingly, I reject the allegation that the will was procured by undue influence.[71]The findings that I have made concentrate solely on the issues which, it seems to me, are essential to determine this case. I should say that I found the evidence of many of the witnesses unsatisfactory, and it would have been very difficult, had I been required to do so, to determine all the factual areas on which the two sides were in dispute. I do not therefore seek to make a comprehensive set of findings about all the events that transpired around the time that Tarsem Singh made his will, or the particular reasons that led him to do so, but I will say something about them in view of the amount of evidence and cost that has been devoted to them.[72]In broad terms, I should say that had it been necessary for me to do so I would have been disposed to find it more credible than not that Tarsem did have the intention of remarrying and went to India with that intention both in 2003 and 2005, and that he did go through the religious ceremony with Kulvinder Kaur on 18 November. It follows that in that respect I would not have accepted the contrary evidence of Satnam and a number of his witnesses. This intention on Tarsem's part was, I daresay, of great concern to Satnam and to his daughters. I do not, for instance, accept Sukhvinder's contention that she was concerned about it in 2003, but sanguine in 2005; that is not consistent with the regular and apparently somewhat anxious series of phone calls that she and her husband made to India to keep abreast of what was going on by talking to Satnam and other relatives. Large parts of the evidence of Kulvinder Kaur and other witnesses called by Sukhvinder deposed to events which could not be consistent with the will having been executed on 21 November, and seemed to me to be designed to support Sukhvinder's case that it could not have been. Given that I have found that the will was executed on that date, as indeed Sukhvinder eventually accepted herself, it must follow that all of this evidence was incorrect.[73]Although it is not necessary for me to make a finding to this effect in order to determine this case, it seems to me that the most likely explanation of the will is that Tarsem was persuaded by Satnam and other relatives that if he were to go through with his plans to remarry, he should make clear that he intended his fairly considerable estate to benefit his blood relatives. For the reasons I have given, I am not satisfied that he was coerced into this decision. It appears that he may have intended to make a will in any event for some time, so that whatever was said to him in India may only have brought forward something he would have done anyway. Furthermore, it is in my view clear on the evidence that having decided to make a will, the content of the will represented Tarsem's own wishes, however unpalatable his daughters may find it.[74]In the result therefore, I propose to pronounce for the will.

Construction of the will

[75]That leaves one final matter; it was contended on behalf of Sukhvinder that if I should find for the will, I should also find that as a matter of construction the provisions dealing with land dealt only with the land in India, leaving the shop and other properties held in England to pass on intestacy. The relevant provisions of the will, in the agreed translation, are as follows:
“ I have movable and immovable properties situated in the area and habitation of villages Malpur Arkan, Kariha and Rahon, Tehsil and district of Nawanshahr. That my son, Satnam Singh … exists, who cares and looks after me with heart and soul and is obedient to me in every way. Therefore I, with my sound mind and full senses and without any undue pressure, bequeath and write that after my death only my aforesaid son will be the owner and shall have the right of ownership, like me, to all my aforesaid properties and situated wherever else.”
[76]In relation to money and accounts, the relevant provision was as follows:
“ my three grandsons …, sons of Satnam Singh, also exist, and that they (three grandsons) will be entitled to equal shares, as I am, to cash deposited in my name and account dealings in banks/post offices in India or in any other country.”
[77]The argument, which it seemed to me Mr Newman did not pursue with any great enthusiasm, was that "and situated wherever else" should be interpreted as referring only to land elsewhere in India. He pointed out that the particular properties referred to are all in India, and drew a distinction between that wording, and the more specific wording used in relation to the accounts. I do not accept that; the words "wherever else" are entirely general and in my view it would be straining them to interpret them as referring only to land in India. As Mr Eyre rightly said, the court leans against finding that a testator intentionally made a will dealing with only part of his property, leaving the rest to pass under an intestacy. Furthermore, in my view no significance should be attached to the fact that slightly different language was used in the two provisions. It would be wrong, in my view, to seek to judge the drafting by too high a standard or to over interpret minor differences in the wording of separate clauses as indicating a radically different intention. This was a simple will, drafted in simple terms, and if Tarsem had intended to deal only with his land in India in my judgment it would be much more likely that the will would expressly have said so. In reaching this conclusion, I should say that I have not taken into account the evidence I received of what Tarsem said to Mr Brar or the witnesses; that would amount to taking into account evidence of his subjective intention which is not permissible in construing the terms of the document actually executed.

Postscript

[78]By way of postscript, I record that since the conclusion of the trial I have received a considerable amount of correspondence from solicitors for both parties putting forward additional contentions of fact and submission with the request that I should take them into account in preparing my judgment. I have not done so, as in my view it was quite improper of the solicitors to send this material without a formal application for permission to rely on further evidence or submissions.[79]I will list a short hearing at which this judgment can be handed down. If the parties are agreed as to the order to be made, there need be no attendance. If there are substantial matters arising that cannot be dealt with at the brief hearing, the parties should contact my clerk with an agreed time estimate and I will arrange a further hearing at a later date for these matters to be dealt with.

Cited in 1 later judgment