Ahluwalia v Singh & Ors [2011] EWHC 2907 (Ch)

HC 10C01936[2011] EWHC 2907 (Ch)IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONPROBATEDate 6 September 2011
Before
Mr Mark Cawson QC, sitting as a Judge of the High Court
Between
AhluwaliaClaimantSingh & OrsDefendantB E T W E E NIN THE ESTATE OF RANJIT SINGH (OTHERWISE KNOWN AS GURWAK SINGH) DECEASEDBALVINDER KAUR AHLUWALIA Claimant- and -(1) JARNAIL SINGH(2) AJAIB SINGH-JUDGE(3) JUGDEEP AHLUWALIA(4) SUKHWINDER KAUR(5) JASWINDER KAUR WALIA Defendants
Timothy Evans (instructed by Thomas Cooper), for the ClaimantGeoffrey Goldkorn (Solicitor Advocate, of Goldkorn Mathias Gentle Page LLP) for the First, Second and Third DefendantsHearing Hearing Dates: 20, 21, 22, 23 June 2011JudgmentMARK CAWSON QC:Introduction
[1]This action concerns the validity or otherwise of what purports to be the will dated 3 May 1999 (“the Will”) of the late Ranjit Singh, otherwise known as Gurwak Singh (“Mr Singh”), who died on 23 March 2009.[2]The Will was admitted to probate on 12 March 2010, probate being granted to Mr Singh’s eldest son, the First Defendant, Jarnail Singh (“Jarnail”), one of the executors named in the Will, the other executors (“the non-corporate persons who at my death shall be the Principal Officers of Hinckley & Hunt Executor Company Limited”) having renounced.[3]The present action is brought by one of Mr Singh’s daughters, Balvinder Kaur Ahluwalia (“Balvinder”). Balvinder seeks an Order that probate be revoked, that the Will be pronounced against, and that letters of administration be granted to a fit and proper independent person.[4]There is no other Will and so the consequence of the Will being pronounced against would be an intestacy in which each of Mr Singh’s children would share equally.[5]Jarnail was born in 1957 and Balvinder in 1968. Mr Singh’s other children are his other sons Ajaib (born 1960) and Jugdeep (born 1969), and his other daughters, Jaswinder (born 1957) and Sukhwinder (born 1962). These other children are all joined as Defendants but only Ajaib and Jugdeep have actively joined with Jarnail in defending the proceedings.[6]The Will contains an attestation clause in the following terms:
“Signed by the above named Testator as his last Will in the presence of us both present at the same time who in his presence and at his request and in the presence of each other have here-unto subscribed our names as witnesses”
. Mr Singh’s signature appears by the side of this with the words “Signature of Testator” underneath his signature.[7]Thereunder beside “Witness 1” and “Witness 2” appear the signatures respectively of Maurice Edgar Grantham (“Mr Grantham”) and Gurdial Singh Ahluwalia (“Mr Ahluwalia”) together with their respective occupations (in each case retired) and addresses (completed in manuscript).[8]The Will is challenged by Balvinder on the grounds that despite the clear terms of the attestation clause, and contrary to Section 9(c) of the Wills Act 1837 (as amended), Mr Singh’s signature was not made in the presence of both Mr Grantham and Mr Ahluwalia present at the same time.[9]It is Balvinder’s case that Mr Singh signed the Will in Mr Grantham’s presence in Mr Grantham’s house, but that Mr Ahluwalia was not then present and that Mr Singh must subsequently have obtained Mr Ahluwalia’s signature. Jarnil, Ajaib and Jugdeep (“the Brothers”) advance no positive case as to the circumstances in which the Will came to be signed by Mr Singh and the signatures of Mr Grantham and Mr Ahluwalia added as witnesses. However, it is their case that Balvinder’s evidence is not sufficiently strong or cogent, and does not amount to “the strongest evidence” required to rebut the strong presumption of due execution arising from the Will itself containing the attestation clause and the signatures of Mr Grantham and Mr Ahluwalia as attesting witnesses.[10]The issue in the case is therefore whether Mr Grantham and Mr Ahluwalia were both present when Mr Singh signed his Will, and in particular whether there is “the strongest evidence” to rebut the presumption of due execution arising from the fact that Mr Grantham’s and Mr Ahluwalia’s signatures appear on the Will together with an attestation clause. The Law[11]The relevant law as to the presumption of due execution was considered and restated by the Court of Appeal in Sherrington v. Sherrington [2005] WTLR 587, when Peter Gibson LJ at paras [40] to [42] said this:
“40. … “Wright v. Sanderson (1884) 9 PD 149 ... demonstrates ... the strength of the presumption of due execution when there is an attestation clause and the testator and witnesses sign. In that case the testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to “sign this paper” which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor did they see the testator sign. One witness said that she did not know what she was signing; the other said that she did not know what she was doing. Although the trial judge, Sir James Hannen P, did not doubt their honesty, he felt that he could not rely on their evidence to rebut the presumption arising from the regularity of the codicil on its face as regards all the formalities of signature and attestation when no suspicion of fraud arose. This court dismissed an appeal to it, the Earl of Selborne LC observing (9 PD at p161), “I do not know how many wills, really well executed and duly attested, might not be brought into peril if, upon the sort of evidence which we have here, after a lapse of several years, probate were refused.” 41. To similar effect was Lord Penzance in Wright v. Rogers (1869) LR 1 PD 678 at p682. In this case the survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator. Lord Penzance said at p682 that the question was whether the court was able to rely on the witness’s memory. He continued: “The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed.”
It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has “the strongest evidence”, in Lord Penzance’s words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator’s signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness.” “The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed.”[12]Sherrington v. Sherrington was applied by the Court of Appeal in Channon v. Perkins [2006] WTLR 425, a case where the Court of Appeal held that the trial Judge had been wrong to treat the presumption arising from the existence of an attestation clause as having been rebutted even though both attesting witnesses gave evidence to the effect that they had not been present when the testator made his Will.[13]In Sherrington v. Sherrington at paras [7] and [8] Neuberger LJ pointed out that there were two good reasons to require “the strongest evidence” to the effect that a will had not been executed in accordance with S9 of the Wills Act 1837 where it appeared from the face of the will that it had been duly executed and where there was no suggestion that it did not represent the testator’s intentions:13.1 Firstly, the practical reason that oral testimony as to the way in which a document was executed many years ago was not likely to be inherently particularly reliable on many or indeed most occasions. Neuberger LJ pointed out that people can, entirely honestly and doing their very best, completely misremember or wholly forget facts and events that took place not very long ago, and that the longer ago something may have taken place the less accurate their recollection is likely to be. At para [35] Neuberger LJ made the particular point that, with many witnesses, that they cannot remember an event might harden over time into the notion that the event cannot have happened at all. Further, it should be observed that vague recollections are equally capable, with the passage of time, of hardening into firm recollections.13.2 Secondly, the principalled reason that it should require strong evidence to displace the apparent wishes of a testator as expressed in a will that appears properly executed on its face.[14]At para [37] Neuburger LJ commented that it would generally be appropriate for the trial Judge to enquire as to how the ineffective execution could have happened if pronouncing against the will, and he was critical of the trial Judge who had declined to speculate on such matters.[15]Arden LJ said much the same thing at para [48] having, at paras [44] to [46], given some guidance as to what was meant by the phrase “the strongest evidence”. At para [44] she accepted that the expression does not mean that there could be no evidence that is stronger, and at para [45] she expressed the matter in terms of a sliding scale according to which evidence will constitute the strongest evidence in one case but not another: “What constitutes the “strongest evidence” in any particular case will depend on the totality of the relevant facts of that case, and the Court’s evaluation of the probabilities. The Court must look at all the circumstances of the case relevant to attestation”.[16]Mummery LJ at para [53] regarded the fact that the deceased had left a will which was, on its face, in due form as: “… real evidence of due execution of far greater strength … than the best which Mrs Day, Miss Roth and Miss Reilly could do to recollect distant formalities alleged to have taken place on 7 April 1996 [some 9 years previously] and evidence in the form of the will itself”.[17]I was referred to two first instance decisions which have applied Sherrington v. Sherrington, namely the decision of Blackburne J in Couwenbergh v. Valkova [2008] EWHC 2451 and Vos J in Kentfield v. Wright [2010] EWHC 1607, where, in each case, the presumption was held not to have been rebutted. The researches of Mr Timothy Evans, who appeared for Balvinder, and Mr Geoffrey Goldkorn, who appeared for the Brothers, have been unable to come up with any case where the presumption has been successfully rebutted. Witnesses[18]I heard from the following live witnesses in the following[19]At the beginning of the evidence and having heard submissions on the point, I ruled that the two attesting witnesses should give evidence first, each being cross-examined by the party who principally relied upon the evidence of the other. Both witnesses were subsequently recalled to deal with an issue that subsequently arose.[20]In addition to the live evidence the following witness statements were formally put in evidence on an unchallenged basis:20.1 The statement of Mr Jackson (“Mr Jackson”) who, in 1999 was the Probate Manager of Hinckley & Hunt Executor Company Limited (now known as Independent Trust Corporation Limited) (“Hinckley & Hunt”);20.2 The statement of Grant Ian McKerron (“Mr McKerron”), who was in 1999 and remains a director of Hinckley & Hunt;20.3 The statement of Leonard Roy Anscomb (“Mr Anscomb”) who worked alongside Mr Singh for 14 years at British Bakeries and who refers to Mr Singh’s “English literacy and good numeracy” having led to his being awarded a position with responsibility for “orders directed to Sainsburys, Tesco and Co-operative outlets”;20.4 The statement of Nanchatter Mand (“Mr Mand”). This refers to the practical assistance provided by Mr Singh to Mr Mand and his family upon their arrival from India, including assistance with the use of the English language, and the behaviour on the part of Balvinder towards older members of his family following Mr Singh’s death, and the upset this caused many older members of the Punjabi (Sikh) community in Crawley; and20.5 The statement of Vijay Kumar, a financial adviser who gave advice to Mr Singh from 1996 and who says that Mr Singh had no problem understanding the products that were recommended to him and the risks they carried, that he spoke to Mr Singh in English at all times, and that there was no apparent problem in understanding one another. Other Preliminary Matters[21]Although Mr Singh died on 23 March 2009, the Will was not discovered until January 2010 when Jarnail came across a business card of Sara Johnson, a will writer employed by Hinckley & Hunt, at Mr Singh’s house, 120 North Road, Three Bridges, Crawley, West Sussex (“120 North Road”), and enquiries of Hinckley & Hunt revealed that they retained a copy of the Will.[22]Prior thereto, on 18 June 2009, Ajaib and Jarnail had taken out Letters of Administration. On 17 September 2009 Balvinder commenced proceedings by Part 8 Claim Form seeking Ajaib’s and Jarnail’s removal as administrators. Balvinder’s evidence in support of these proceedings made a number of serious allegations against Ajaib and Jarnail, including one of perjury and tax evasion, that were subsequently withdrawn. The wider allegation made was that Ajaib and Jarnail had acted in a heavy handed and/or aggressive manner that included breaking into a locked cupboard in Mr Singh’s bedroom at 120 North Road.[23]The proceedings were hotly contested, but events were overtaken by the discovery of the Will. On 13 April 2010, Master Moncaster, on the assumption that the present proceedings would be brought, directed that “the question how the costs of the present proceedings are to be borne be adjourned to the Judge trying the probate claim”. This is something that I am yet to hear submissions upon and that I will have to deal with following the handing down of this judgment. Uncontentious Matters Concerning the Execution of the Will[24]It is not in dispute that the signatures upon the Will are those of Mr Singh, Mr Grantham and Mr Ahluwalia, the issue being whether both Mr Grantham and Mr Ahluwalia were both present when Mr Singh signed it.[25]The circumstances leading up to the actual execution of the Will are also relatively clear, and appear from the evidence of Mr Jackson and Mr McKerron and certain additional documents provided by Hinckley & Hunt.[26]Hinckley & Hunt, at the relevant time, employed “will-writers”, including a Sara Johnson, who were trained as to the formalities of executing wills, and, where a will was left with the testator for execution, to clearly explain to him or her what was required, including the importance of the two witnesses to his or her signature being present at the same time. Further, Hinckley & Hunt’s procedures provided for written instructions to be left with the testator that set out in detail and clear terms the steps to be taken, including with regard to witnesses.[27]Will-writers employed by Hinckley & Hunt such as Sara Johnson took instructions as to the contents of a will from the testator by completing a standard form. Whilst meetings with proposed testators often took place at branches of the Woolwich Building Society, the will-writers were equipped with laptop computers and portable printers enabling them to attend at the testator’s home for the purposes of taking instructions, preparing the will and even printing it off for execution.[28]There are some immaterial differences between Mr McKerron and the documentation exhibited to Mr Jackson’s statement as to where the initial meeting took place in the instant case, although the evidence strongly suggests that Sara Johnson met with Mr Singh at 120 North Road at 8.20pm on 1 May 1999 and that at the conclusion of this meeting Mr Singh was left with the Will for execution. If Hinckley & Hunt’s procedures had been followed, then Sara Johnson would have given an explanation as to how the Will should be executed, including the importance of the two witnesses being present at the same time, and left Mr Singh with written instructions. Sara Johnson left Hinckley & Hunt’s employment shortly thereafter and has not been traced.[29]Both the form completed by Sara Johnson, and the Will, provided for Mr Singh’s residuary estate to be divided between the Brothers, and for Sukhwinder and Balvinder (mis-spelt Balvender in each) to receive legacies of £20,000. Jaswinder was wholly excluded from benefit. Mr Singh signed a standard Hinckley & Hunt’s form headed “Inheritance (Provision for Family and Dependants) Act 1975” explaining that Jaswinder (mis-spelt Jasvinder) had borrowed money in 1979 that she had not paid back, and that Mr Singh did not feel that he wanted to leave anything to her.[30]In his statement Jarnail explained, and this was not challenged, that the Will was a traditional Sikh Will where the eldest son assumes the main role (Jarnail was named as executor) and the daughters are seen as part of their husband’s side of the family, with weddings being marked by the giving of large gifts by the parents to their daughters, and therefore not provided for in the same way as sons.[31]The arrangements with Hinckley & Hunt provided for the executed Will to be returned to them and kept upon payment of an on-going annual fee (paid until death) for which Mr Singh, on 1 May 2009, completed a direct debit mandate.[32]There are a couple of further points to note from the Will and the instruction form completed by Sara Johnson. Apart from the mis-spelling of Balvinder, each referred to Jarnail’s address as “98 Sandmerry Drive”, and not “98 St Mary’s Drive”, his correctly spelt address. Further, Ajaib’s, Jugdeep’s, Sukhwinder’s and Balvinder’s addresses were all given as 120 North Road, although only Jugdeep and Balvinder lived with Mr Singh at that address. Mr Singh[33]Although his Birth Certificate refers to him as having been born in Malaysia in 1938, it was Mr Ahluwalia’s evidence that he grew up in the same village as Mr Singh in the Punjab, India, Mr Ahluwalia being approximately 2 years older than Mr Singh. Mr Singh moved to England in 1964 a few months before Mr Ahluwalia. Mr Singh moved to 120 North Road in about 1987, and Mr Ahluwalia moved to his present address, about 10 to 15 minutes’ walk away, in about 1988.[34]Unlike Mr Ahluwalia, who graduated from the Punjab University, Mr Singh did not progress beyond matriculation (the equivalent of GCSEs), but clearly lived a successful albeit frugal life, privately educating all his children and leaving an estate with a net value for probate purposes of £872,890.[35]There is an issue between the parties as to the extent of Mr Singh’s ability to communicate in English and as to whether Mr Singh was the sort of person who would have done otherwise than follow the strict formalities required in connection with making as will.[36]Mr Ahluwalia’s evidence was that Mr Singh could speak and understand English very well, although Mr Ahluwalia considered that his own English was a bit better than Mr Singh’s had been. I did, of course, have the opportunity of hearing Mr Ahluwalia give evidence. His own spoken English was good, but not always necessarily easy to follow. Further, there were occasions when questions were put to Mr Ahluwalia which he did not fully understand or got the wrong end of the stick about. The evidence of Jarnail, Mr Anguige, Mr Anscomb and Mr Kumar certainly support the suggestion that Mr Singh’s English was good, even when applied to financial transactions. Balvinder regarded Mr Singh’s English as poor, particularly when related to documents. Mr Grantham, whilst accepting that he had a problem with strong accents, said that he could not always understand Mr Singh, although his wife was able to do so rather better.[37]Subjective views might not always be the same, but the overall impression that I am left with in the case of Mr Singh is of a man who spoke good, albeit heavily accented English, that was not always easy to understand, dependant often on how well he was known, and a man who was at least capable of getting the wrong end of the stick about things said to him in English and who may not have picked up on particular idioms.[38]So far as Mr Singh being meticulous and wanting to get things right is concerned this is, again, a question of degree. I am sure that Mr Singh was a man who generally tried to get things right, but did not in fact get everything right as evidenced by the errors on the face of the Will that I have referred to. In addition, Mr Anguige gave some telling evidence about Mr Singh’s income tax affairs. He described Mr Singh’s record keeping as “not brilliant”. The Inland Revenue challenged Mr Singh’s figures, and Mr Anguige felt that he had to cease acting for Mr Singh as Mr Singh was “not telling me the full story”. Mr Grantham spoke of occasions on which Mr Singh had got in a muddle, for example following the purchase of an unsuitable Citroen car, where Mr Grantham had to help Mr Singh to sort matters out. Mr Singh was therefore a man who was in my judgment at least capable of cutting corners or getting things wrong.[39]Mr Singh’s wife died in 1997, and the evidence is to the effect that thereafter Balvinder provided increasing assistance to him, particularly following the breakdown of her own marriage, culminating in Balvinder moving into 120 North Road with her children a year or so prior to Mr Singh’s death.[40]On the other hand, Mr Singh’s relationship with the Brothers, particularly latterly, was less close. Ajaib did not see his father after 1997. Jugdeep kept in touch, as did Jarnail, although there was evidence (eg from Mr Grantham) of a serious falling out between Jarnail and Mr Singh in India in about 2007. Having said that there is no evidence of Mr Singh subsequently wanting to change the terms of the Will. Evidence in Support of the Claim Mr Grantham[41]At the heart of the attack on the validity of the Will is the evidence of Mr Grantham.[42]Mr Grantham and his wife were neighbours of Mr Singh living at 122 North Road, where they had lived since 1971. After Mrs Singh and his wife moved next door in about 1987, they became good friends. Mr Grantham is now aged 78 and was retired by the time that Mr Singh made the Will in May 1999.[43]As a neighbour Mr Grantham and his wife came to know well not only Mr Singh and his late wife, but also more latterly, Balvinder. Whilst it was Mr Grantham’s evidence that his wife was perhaps closer to Mr Singh and Balvinder, it was his evidence that he had on a few occasions attended parties at Mr Singh’s house, albeit coming along later and attending for less time than his wife, and there was at least one occasion, to which I will return, on which Mr Grantham attended a party at Balvinder’s house.[44]Further, over the years, Mr Grantham and his wife assisted Mr Singh with various tasks including helping Mr Singh out of the muddle that he got into with the Citroen car that did not suit him, and looking after jewellery whilst Mr Singh was away. Further, Mr Grantham and his wife assisted with some of Balvinder’s own childcare needs, looking after her children on occasion and even picking them up from school. However, it is Mr Grantham’s recollection that Mr Singh only actually came around to his house unannounced in two circumstances. Firstly for assistance in getting his wife into the car on one or more occasions when she was ill, and secondly when Mr Singh came around to ask him to sign the document that Mr Grantham believes was the Will. On the other hand, Mr Grantham or more particularly his wife frequently saw Mr Singh “over the wall” and invited him around for a cup of tea.[45]After the dispute arose between Balvinder and the Brothers that led to the earlier proceedings commenced in 2009, Mr Grantham assisted Balvinder by making a statement dated 4 September 2009 dealing with events next door including those on 26 June 2009 when Jugdeep and Ajaib were at 120 North Road and Mr Grantham heard banging next door in respect to which he said that:
“I believe that this banging noise facilitated entry to Mr Singh’s locked bedroom door and the locked cupboard within his bedroom door, the locked patio door that leads to the rear extension and the locked garage door that leads into the garage”
. When cross-examined on this Mr Grantham said that his knowledge as to the locked cupboard came from what Mr Singh had told his wife.[46]It was put to Mr Grantham in cross-examination that when the dispute with the Brothers flared up he had put Balvinder on to a particular firm of solicitors. He denied this but he did accept that he had visited solicitors with Balvinder in order to provide “moral support”.[47]The first statement of Mr Grantham specifically relied on in the present proceedings is one dated 17 February 2010, in fact made in the earlier proceedings. Consequently, this statement primarily deals with matters raised in those proceedings. It was drafted by Balvinder, who is herself a solicitor, because, according to an email dated 9 February 2009 from Balvinder to Mr Grantham, she was waiting to hear from her own solicitor and was concerned about the delay.[48]In para 11 thereof Mr Grantham refers to the Will, a copy of which was exhibited, and continues: “I confirm that the signature of Witness 1 is mine. I do not specifically recall signing this document and neither do I recall Mr Singh telling me this was his will. This being said I confirm that at no time did I sign any document as a witness for Mr Singh in the presence of any other person. At no time did Mr Singh bring anyone with him when he came to visit me and neither did he ever ask me to attend his house for the purpose of signing any document as a witness or otherwise. I have a will myself, which I made in 1997, and I am quite sure that had Mr Singh told me at that time that this was his will I would have pointed out to him that for the will to be valid both witnesses need to be present at the same time and it is for this reason that I do not think that he disclosed that I was witnessing his will”.[49]Mr Grantham described events in more detail in a further statement dated 10 May 2010 which is based, with some revisions, upon instructions taken by Balvinder’s solicitor shortly prior to 28 April 2010. In this statement Mr Grantham describes how on a date which he could not recall, but which might have been 3 May 1999, Mr Singh visited him at about 2.00 to 3.00pm in the afternoon when he was home alone, and requested Mr Grantham to witness his signature on a document. He said that Mr Singh signed the document and added his name, occupation and address, and that there was no one else present. He refers to Mr Ahluwalia’s signature as having been subsequently added, and said that although he had heard of Mr Ahluwalia (“He was always referred to as “Uncle””) he had never spoken to him or met him, and therefore that Mr Ahluwalia was not present when Mr Singh signed the Will and he added his signature as a witness. He concluded: “I can say with certainty that I was never in the same place with both Gurwak Singh and Guardial Ahluwalia (or any other witness) when all three of us signed any will”.[50]Mr Grantham subsequently attended a conference with Balvinder, Mr Evans (of Counsel) and Mr Evans’ instructing solicitors, on 6 September 2010. The note thereof records Mr Grantham mentioning that he could recall the circumstances quite clearly, that he had never ever had a Sikh gentleman with a turban and beard in his house, and nor had he been to Mr Ahluwalia’s house. Mr Grantham added the detail that the document that he recalls witnessing for Mr Singh had been signed on the table in Mr Grantham’s dining-room, that Mr Singh was a private man, and that he did not read the document or ask him what it was. The note records Mr Grantham as saying that Mr Singh’s visit lasted about 10 minutes, and at the end of it Mr Grantham’s wife turned up and subsequently told Mr Grantham off for not having offered Mr Singh a cup of tea.[51]On 10 December 2010 Mr Grantham was interviewed by Mr Mathias of Mr Goldkorn’s firm.[52]In evidence before me Mr Grantham explained that the reference in para 11 of his first statement to not specifically recalling “signing this document”, was a reference to the fact that he could not recall the particular document because he did not realise at the time that it was a will, but that he had a good recollection of the one occasion when Mr Singh attended at his house to ask him to witness his signature on a document, whatever it was.[53]It was put to Mr Grantham that he must surely have seen and read the attestation clause and therefore seen that it was a will, but Mr Grantham said not and that what had happened was that Mr Singh sat at the table and folded over the two page will just enough to sign it, and then allowed Mr Grantham, who was standing by his side to sign where he was supposed to sign and add his details. The layout of the Will is such as to make this entirely credible although the words “Signature of Testator” do appear just below Mr Singh’s signature.[54]It was put to Mr Grantham that his memory had “improved” (ie. unreliably so) in respect of a number of matters, eg. in relation to the dining-room table, and it was submitted by Mr Goldkorn in submissions that this was a classic case of faulty reconstruction. Mr Grantham’s explanation was that he would have been more forthcoming earlier on had he been asked the right questions, and that he had succeeded in recalling more detail “on reflection”.[55]Mr Singh did not wear a turban, but it was the practice of Mr Ahluwalia at all relevant times to do so. He thus had the distinct appearance of a traditional Sikh with uncut hair, including beard, and turban. Mr Grantham’s clear evidence to me was that nobody with a turban had ever visited his house, although he did accept, when put to him, that he had seen Mr Singh’s brother, who did wear a turban, in the garden of 120 North Road. Further, whilst Mr Grantham accepted that Balvinder’s son, Gurdep, had been dropped round at his house on various occasions to be looked after, he emphatically denied that Mr Ahluwalia was ever, to his knowledge, present on these occasions, or ever came into his house either on these occasions or otherwise.[56]Mr Grantham was also sure that he had never been to Mr Ahluwalia’s house. Further, he said that he had not seen, or at least noticed, Mr Ahluwalia at 120 North Road on his visits to Mr Singh’s house until Mr Ahluwalia was pointed out to him after Mr Singh’s funeral. Mr Grantham accepts that Mr Ahluwalia might have been present at a large family party at Balvinder’s house in April 2000 attended by Mr Grantham and his wife but, if so, Mr Grantham’s evidence was that he was unaware of the fact and was certainly not introduced to Mr Ahluwalia or party to any conversation with him.[57]Mr Grantham emphatically denied, when put to him when recalled to give evidence, evidence that Mr Ahluwalia gave when recalled to give evidence to the effect that he had been present at an event at Balvinder’s house when he and Mr Ahluwalia were together in a small group discussing, amongst other things, malt whiskies. I refer to this further below.[58]As to the possibility of having met Mr Ahluwalia at Mr Singh’s house on an earlier occasion, Mr Grantham was adamant that there would in each case he visited be some specific different reason, such as attending a party, and he would have recalled had Mr Singh asked him to sign a document together with Mr Ahluwalia there or elsewhere.[59]There was put to Mr Grantham an assignment of an insurance policy on which Mr Grantham’s wife had witnessed Mr Singh’s signature, and it was suggested to him that he might have confused his signing of the Will with this. Mr Grantham said that he had no knowledge of the assignment, which he suggested was unsurprising as his wife had had more contact with Mr Singh than he had.[60]It was put to Mr Grantham that it was at least “possible” that the event that he recalled when he had witnessed Mr Singh’s signature at his house related to some other document and that he had with the passage of time simply forgotten about a different occasion at which Mr Singh had signed the Will in the presence of himself and Mr Ahluwalia. Mr Grantham recognised the possibility but did not accept it because he was adamant that he had only witnessed Mr Singh’s signature on one document, and had never been present together with Mr Ahluwalia when witnessing a document.[61]In short, Mr Grantham remained adamant that he had “definitely not” ever been present with Mr Ahluwalia when the Will was signed by Mr Singh and witnessed by the two of them, and that if he had he would have remembered given the novelty to him of Mr Ahluwalia wearing a turban. Balvinder[62]Balvinder qualified as a solicitor in 1996 and has, since then, practised as a shipping litigator in the City of London.[63]Balvinder made two statements dated 15 December 2010 and 25 March 2011 respectively and was extensively cross-examined by Mr Goldkorn on behalf of the Brothers.[64]Balvinder referred in her first statement to the fact that within the last 10 years or so prior to Mr Singh’s death she had personally little to do with Mr Ahluwalia but that she is conscious of the respect that her father had for him as “Uncle”, and that is why she phoned him to inform him of Mr Singh’s death the morning thereafter.[65]Balvinder says that Mr Ahluwalia immediately informed her that Mr Singh had made a will, a matter that he repeated on a number of occasions, including at Mr Singh’s funeral. He informed her, she said, that it was imperative that she find Mr Singh’s Will as it would be to her advantage. She said that Mr Ahluwalia then enquired on several occasions whether she had found it, including by enquiries made whilst he was in India. At about this time, according to Balvinder, Mr Ahluwalia informed her that Mr Singh had paid £75 for his will, and that he was a witness. Balvinder explained under cross-examination that as part of the process of trying to trace Mr Singh’s will she asked Mr Ahluwalia who else had been present when he had witnessed the Will, and that Mr Ahluwalia had said that he had been alone, and that not even his wife had been present.[66]Attempts to trace the Will by making enquiries with solicitors and searching 120 North Road proved unsuccessful. Mr Ahluwalia said in evidence that Balvinder told him she knew that Mr Singh had made a will as she had found a forwarding letter relating to a will, but Balvinder emphatically denied that was the case. Balvinder says that it therefore came as something of a shock when the Will was found as referred to above, and that it provided as it did.[67]Having obtained a copy of the Will in early February 2010, Balvinder, so she says, noticed that it had also been witnessed by Mr Grantham. She therefore spoke to him as soon as she could. Mr Grantham informed her on the telephone that he was surprised that a Will had been found as he had never witnessed anything for Mr Singh when anybody else had been present. Balvinder says that she then met with Mr Grantham who confirmed what he had said over the telephone. Balvinder says that she then had difficulty in contacting her own solicitor and prepared a first draft of what became Mr Grantham’s statement dated 17 February 2011. It is perhaps surprising that this statement does not contain greater detail as to what occurred when Mr Grantham witnessed the Will and the circumstances that Mr Grantham has subsequently described, but Balvinder said under cross-examination that her questioning of Mr Grantham did not go into that detail.[68]Having obtained a statement from Mr Grantham, Balvinder says that she decided she should go and see Mr Ahluwalia to ask him to confirm what he had told her the previous year. She said that she decided to visit Mr Ahluwalia on 1 March 2010 without an appointment and unannounced, and had prepared in advance a draft statement based upon what she recalled that Mr Ahluwalia had informed her and with knowledge of what Mr Grantham was saying. She says that she was aware that Mr Ahluwalia was nervous of Jarnail, and she was concerned that Mr Ahluwalia might speak to Jarnail and that Jarnail might prevent her from taking a statement.[69]Consequently, on 1 March 2010 Balvinder attended at Mr Ahluwalia’s house at 3 Balliol Close, Pound Hill at about 2.30pm. Mr Ahluwalia was out, but his wife and daughter were at home, and they informed her that Mr Ahluwalia would not be long and she waited for him to return. The statement that she had prepared and taken with her read as follows:
“1. I knew Gurwak Singh very well having come to this country with him in the early 1960s. I always called Gurwak Jit because this is the short form of his other name Ranjit. We have always lived near to one another and he considered me to be his Uncle because we are from the same village in Punjab and distantly related. 2. I have seen a copy of the Will dated 3 May 1999 and confirm that I signed the same as Witness 2. Jit brought his Will around to my house sometime in May 1999. He asked me to witness his signature. He did not bring anyone else with him and when I signed the Will he had already signed it and the Witness 1 space had already been completed. At no time did Jit ask me to attend his house or anyone else’ house for the purpose of witnessing his Will. I confirm that at the time of signing this document the only people present were myself and Jit.”
[70]Mr Ahluwalia returned at about 3.30pm. Balvinder says that she told him that the Will had turned up, but that he did not look surprised. She says that she showed him a copy of the Will but did not let him read it or see its terms, and asked him whether Witness 2 was his signature and whether this was the will that he had mentioned after Mr Singh’s death. She says that he confirmed that it was his signature and also that this was the Will that he had mentioned.[71]Without explaining the significance of the question she was asking, Balvinder says that she asked Mr Ahluwalia the question: “Who other than yourself or my father were present when you signed the Will?”, a question that she says she repeated at least three times. Balvinder says that Mr Ahluwalia replied that other than Mr Singh no one else was present and that he was adamant that at the time that he signed, only he and Mr Singh were present. Balvinder says that she asked whether Mr Ahluwalia’s wife was present to which Mr Ahluwalia replied that she was not in the room, but he could not recall whether she was in the house. Balvinder says that Mr Ahluwalia told her that he clearly remembered that Mr Singh did not sign the Will in front of him, and that Mr Singh had already signed it and asked Mr Ahluwalia whether he would like him to sign it again, to which Mr Ahluwalia replied that this was not necessary as they had known each other for so long.[72]Balvinder then asked whether Mr Ahluwalia would be prepared to make a statement confirming what he had just said. After some further discussion as to whether Mr Ahluwalia would be prepared to go to Court, Balvinder, so she says, at that stage produced the statement that she had brought with her.[73]She says that she explained that while she believed that the contents were accurate she needed him to read the statement carefully before signing and that he should feel free to delete anything that he did not believe to be accurate because he had to be 100% sure of what he was signing. She read the statement out to him and he read it out aloud twice. Mr Ahluwalia said that he could not recall whether the Witness 1 details had been completed. Balvinder explained that he should delete whichever words he was not happy with, which he did himself, deleting the words “and the Witness 1 space had already been completed. At no time did Jit ask me to attend his house or anyone else’ [sic] house for the purpose of witnessing his Will” from those quoted above. Balvinder asked him to initial the deletions, which he did, and Mr Ahluwalia then signed the statement of truth and also signed in the margins beside the deletions.[74]Balvinder says that Mr Ahluwalia then re-read the whole of the statement out loud, including the headings, but at no time asked what the purpose of it was. He then said that he was not on anyone’s side, and explained that he had attended a religious ceremony arranged by Jarnail for Mr Singh and not for Jarnail. Balvinder says that she responded by saying that nobody was asking him to take sides.[75]Balvinder says that Mr Ahluwalia confirmed that he was happy with the statement, but asked if he could keep it until the next day. She asked him if he was worried about anything, or scared of something or someone. His response was that he had nothing to worry about, as he had signed a statement which said the truth. Balvinder explained that she would like to take the statement with her, as she worked in London and was busy in the evenings with children and, in any event, wanted to give the statement to her solicitor as soon as possible. He asked for a copy and Balvinder confirmed that he could have a copy but that due to work and family circumstances she might not be able to pop it around too soon. It subsequently slipped Balvinder’s mind to provide him with a copy, so she says.[76]They chatted for a few minutes more during the course of which Mr Ahluwalia expressed his disappointment that she had not kept in touch, and that when they had bumped into one another at the Sikh Temple in November 2009 she had not spoken to him properly. Balvinder in turn expressed her disappointment that despite how Jarnail had treated Mr Singh in India in November 2007, and his own treatment at the hands of Jarnail at Mr Singh’s funeral, he was still on good terms with the Brothers.[77]Balvinder says that due to her misgivings about Mr Ahluwalia and the fact that she did not trust him, when she got back to the car she prepared a quick shorthand attendance note. This attendance note accords with the above account, but is of course self-serving. The Brothers’ Evidence Seeking to Uphold the Will Mr Ahluwalia[78]Apart from his oral evidence to me, and ignoring for the moment the controversial statement signed on 1 March 2010, Mr Ahluwalia’s evidence is to be discerned from a Statement made on 23 March 2010, a statement made on 21 October 2010 and a further statement that comments on Balvinder’s statement.[79]Mr Ahluwalia dealt with events prior to Balvinder’s visit to his house on 1 March 2010 in his second Statement and in the statement commenting on Balvinder’s statement.[80]In his second statement Mr Ahluwalia said that he knew Mr Singh’s neighbour Mr Grantham, and that he must have met him on three or four occasions when Balvinder’s son Gurdep was at Mr Singh’s house. Occasionally Mr Singh and Mr Ahluwalia would have to go out together and Gurdep would be dropped off with Mr Grantham. Mr Ahluwalia also said that he saw Mr Grantham once or twice at Mr Singh’s house although he had not seen him for a long time.[81]In evidence Mr Ahluwalia said that he had been to Mr Grantham’s house once or twice to drop off Mr Singh’s grandson, when he had met Mr Grantham and he also mentioned visits associated with visiting Balvinder’s late mother.[82]I note from a file note of Balvinder’s solicitors, Graeme Bennett, that he visited Mr Ahluwalia on 21 April 2010. His handwritten note records the following dialogue with Mr Ahluwalia: “Do you know Maurice Grantham?” “I have heard of him. Seen him once or twice in [Mr Singh’s] home. Long time ago. Think I cannot recognise him.” “Have you ever been to his home at 122 North Road?” “Don’t remember. Don’t know. Not sure”.[83]In re-examination, Mr Ahluwalia was asked about the occasions when he says that he had met Mr Grantham. He said that he had just said “hello” to him and was “sure” that he never said more than that, although he then went on to say that it was a long time ago, and that he could not remember. He was asked if he could recognise Mr Grantham, who was still in Court in the public gallery, but was unable to do so.[84]After Mr Grantham had given evidence Mr Ahluwalia was recalled by Mr Goldkorn. He was asked whether he had ever been to Balvinder’s house. He said that he had, to a celebratory party at which Balvinder, Mr Singh and Mr Grantham had been present. Mr Ahluwalia was then cross-examined about this by Mr Evans. He said that the visit was some 9 or 10 years ago. He said that he remembered being in a conversation with Mr Singh and Mr Grantham and that Mr Grantham had said to Mr Singh that a single malt was the best drink to drink, and they had had a drink together. He said that he stayed at the party about 2½ hours.[85]Mr Ahluwalia was asked why he had only raised this at this late stage. He said that he had been talking about the case and he remembered it and mentioned it to Mr Goldkorn. Mr Evans put to Mr Ahluwalia that this was an “invention” and that the event described never happened. Mr Ahluwalia responded that he was 100% sure about what he had said, and that he would never tell a lie.[86]In submissions, Mr Goldkorn realistically felt unable to rely upon Mr Ahluwalia’s evidence as to this supposed meeting and discussion with Mr Grantham, albeit that it appears common ground that they might well both have attended a large party at Balvinder’s house celebrating Gurdep’s first birthday.[87]In his second statement Mr Ahluwalia sets out the words of the attestation clause and states “categorically” that he would never have signed his name as second witness unless what was set out therein had happened adding:
“I consider that I am honest and honourable man and I would not sign a document untruthfully”
. Repeating what he had said in his first statement he went on to say that he had no recollection of what took place with regard to the execution of the Will, but that now that he had looked at the Will again and read the words of the attestation clause he would certainly not have signed as witness to the Will “… unless what those words set out took place”.[88]In giving evidence Mr Ahluwalia told me that before he made his will, Mr Singh informed him that as his parents had given everything to their sons, ie to him and his brothers, and that he intended to give to his sons albeit also leaving some money for his grandsons. In his statement commenting on Balvinder’s statement Mr Ahluwalia mentioned this discussion albeit not referring to the grandsons. Further, in giving evidence, Mr Ahluwalia said that Mr Singh at some point said to him “I’ve done it, I’ve had a will prepared”. Mr Ahluwalia further told me that Mr Singh had said to him that the Will had “got to be signed by two witnesses”. However, apart from that, Mr Ahluwalia said that he had no recollection of the circumstances in which he came to witness the Will.[89]In commenting on Balvinder’s statement Mr Ahluwalia says that following Mr Singh’s death, he informed Balvinder, but not the Brothers, that Mr Singh had made a Will and that he had signed it but that he did so on only one occasion. He says that Balvinder already knew because she told him that she had found a forwarding letter. He says that he also told her that Mr Singh said that he had paid £100, and that solicitors with the name “Pope” had drawn up the Will. Mr Ahluwalia says in these comments that he probably phoned her twice to ask if she had found the Will. Otherwise, Mr Ahluwalia disputes Balvinder’s account of her conversations with him at this time, and in particular that she asked whether anyone else had been present when the Will was signed, and that Mr Ahluwalia had replied that he had been alone with Mr Singh. These comments on Balvinder’s witness statement were all broadly consistent with the evidence that Mr Ahluwalia gave to me.[90]One then turns to Mr Ahluwalia’s account of Balvinder’s visit to his home on 1 March 2010.[91]There is common ground with Balvinder that Mr Ahluwalia was out when Balvinder arrived, and that she did so unannounced. However there is a significant conflict of evidence as to what subsequently occurred.[92]In his statement dated 23 March 2010, prepared on the basis of instructions taken by the Brothers’ solicitors, Mr Ahluwalia referred to Balvinder producing a prepared statement for him to sign, reading it out and asking some questions about whether it was his signature on the Will, whether he signed it and the order that he did so. In this statement however, he said that whilst he confirmed to her that it was his signature, he went on to say that he could not recall whether he signed it at his house or Mr Singh’s house or anywhere else, and that he was a little confused and wished to think about it overnight. Further this statement records Mr Ahluwalia saying that he could not recall whether he signed first or second or in what order, although as he was the second signatory he was sure that he must have signed second, but had no clear recollection. He says that Balvinder then crossed out parts, and asked him to sign the statement that she had prepared. He wanted her to leave it overnight, but she said there was no time as her solicitor wanted it, and she had to pick up her children from school. He therefore felt under some pressure to sign there and then. He went on to say that after seeing Balvinder he had had time to reflect, and unfortunately still could not remember much about the Will and said “I don’t remember whether anyone else was there, but equally there could easily have been”.[93]In paras 10 and 11 of his statement dated 21 October 2010, Mr Ahluwalia added this:
“10. Now that I have looked again at my First Witness Statement I want to add this. As I have already said, the Statement had already been prepared by her without any reference or prior discussion with me. She crossed out parts of the Statement and told me that she only wanted me to say that I was not together with the other witness when I signed. I did not realise the significance of what I was signing at the time. I asked her for a copy but she never sent me a copy. She has not been in touch since. 11. What I signed the first time was incorrect and wrong and I only did so under pressure.”
[94]In his comments on Balvinder’s statement, Mr Ahluwalia denies that Balvinder asked him whether the copy of the Will that she produced was a copy of that which Mr Ahluwalia had spoken about following Mr Singh’s death. Commenting on para 21 of Balvinder’s statement, he said “She did not ask any questions at all”. He then went on to deny the whole of paragraph 22 of Balvinder’s statement, including the question that Balvinder says that she put, namely “Who other than yourself was present at the time he signed the will?”, and his firm response was that it was just him and Mr Singh.[95]In the same statement Mr Ahluwalia also denies the matters referred to in paragraph 72 above, including that it was at this stage that Balvinder asked him whether he would make a statement, and he further denies that it was at this point that Balvinder produced the statement from her bag. He accepts that Balvinder did read out the statement to him, but not that he had read it out loud twice. He repeats what he said in his statement dated 23 March 2010, namely that after he said that he was a little confused and wanted to think about it overnight, Balvinder crossed out some of the words and asked him to sign, which he did. He says that Balvinder said that she would provide him with a copy the next day. Mr Ahluwalia makes the point that he had not seen the Statement that he signed on 1 March 2010 when he made his Statement dated 23 March 2010.[96]Mr Ahluwalia was cross-examined about the events of 1 March 2010. It was put to him that he had in fact told Balvinder that nobody else had been present when he witnessed the Will. His firm response was that given the terms of the attestation clause he would not have signed unless another person had been present, but that he could not recall whether he signed or when. When the question was put again, he asserted that Balvinder had put him under pressure, and said it was urgent and he must sign the statement.[97]He then said that he did read the Statement out loud, and that he said to Balvinder that a bit was not true, and that Balvinder then crossed it out. He went on to say that he signed under pressure, that the statement that he signed was not true, and that he kept saying that he was confused. The Brothers[98]Jarnail’s evidence goes to the motives for Mr Singh making the Will that he did (Sikh tradition), the care that Mr Singh would have taken to make sure that the Will was properly executed, the closeness of the relationship between Mr Grantham and (more so) his wife, and Balvinder (much of which was not put to Mr Grantham), and deals with certain of the issues that arose in the earlier proceedings, including Balvinder’s withdrawing allegations of perjury and tax evasion, and the circumstances in which the Will was found.[99]Ajaib’s statement primarily deals with issues that had arisen in the earlier proceedings. Under cross-examination he confirmed that he had not physically seen his father after 1997.[100]Jugdeep (now known as Jug Judge), who was not cross-examined, comments in his statement, that family tensions were high in 1999 as Mr Singh did not appear to approve of Balvinder’s husband’s family, although this improved after the birth of Balvinder’s son. He commented in his statement that Mr Ahluwalia would visit Mr Singh at least once a week and that Mr Grantham’s wife would regularly visit, often accompanied by Mr Grantham and he expressed surprise at the suggestion that Mr Ahluwalia and Mr Grantham might not have been together at the same time. He comments that Mr Grantham’s wife acted as surrogate mother to Balvinder, and grandmother to Balvinder’s son. He referred to gaining access to Mr Singh’s locked cupboard.[101]Probate of the Will was obtained after Jarnail had submitted an oath dated 4 March 2010 in which he had sworn to his belief that the Will was “the true and original last Will and Testament” of Mr Singh. The day before, namely on 3 March 2010, Balvinder’s solicitors had faxed the Brothers’ solicitors a letter stating that Mr Grantham had confirmed and had made a statement to the effect that at no time did he witness a document for Mr Singh in the presence of anybody else, and that Mr Ahluwalia had made a statement confirming that when he signed as a witness, only he and Mr Singh were present. Mr Jackson’s email dated 3 March 2010 to one of the Brothers (as I understand it, Jarnail) refers to a telephone conversation “this afternoon”. A handwritten note of Mr Jackson on the email records “Mr S. advised in telecon that the two witnesses were not together when the will was signed so it may not be valid”.[102]In these circumstances, and having heard Jarnail cross-examined on the point, I find it somewhat extraordinary that Jarnail, who is a solicitor felt able honestly to say on oath on 4 March 2010, and without further enquiry, that the Will was a true will. I was not impressed by his response to cross-examination that he was a criminal lawyer and acted on legal advice. Evaluation of the Witnesses[103]I am conscious given the legal framework within which the case has to be decided, that I am concerned not just to resolve disputes of fact as between witnesses, but also to carefully assess the evidential weight and significance to be attached to that evidence against the background of the strong presumption of due execution and the policy considerations behind the same, the overall consideration being as to whether there is “the strongest evidence” sufficient to rebut the strong presumption of due execution. Thus I am conscious of the need to keep at the forefront of my mind the inherent unreliability of recollections going back to May 1999 and the undesirability of disturbing testamentary intentions.[104]Balvinder’s key witness is plainly Mr Grantham. It is clear that his sympathies do lie with Balvinder, but he did not come across to me as a witness who would tell a false story. My greater concern with Mr Grantham is as to whether he may have subconsciously converted fragments of memory into certainty as to an event which never occurred, or forgotten an event that did in fact occur.[105]Having said that, Mr Grantham’s evidence certainly came across as demonstrating a genuine recall of an occasion in which Mr Singh came round to his house and asked him to witness his signature on a document. Further, whilst there might be some limited subconscious embellishment of the detail of that occasion, I feel confident that events were broadly as Mr Grantham described. Whilst Mr Grantham’s statement dated 17 February 2010 did at paragraph 11 thereof state that he did not specifically recall signing “this document”, I am satisfied that what Mr Grantham meant was, as he explained in giving evidence to me, that he did not recall the particular document, not that he did not recall the circumstances of the signing a document whatever it was, Mr Singh never having told him what it was and he not having noticed. Further, the impression that I was left with is that this particular statement was a somewhat ham-fisted statement put together by Balvinder to deal primarily with issues that had arisen in the earlier proceedings with wider issues than just the Will at that point in connection with the earlier proceedings. If not specifically asked for detail, then, I am not convinced that Mr Grantham would have volunteered more detail at that point. In any event, the statement does refer to Mr Singh coming into Mr Grantham’s house for the purposes of getting Mr Grantham to witness his signature and is consistent with what Mr Grantham has subsequently said.[106]Mr Goldkorn did, in submissions, raise a number of issues that he said went to the reliability of Mr Grantham’s evidence, including that of possible inaccurate reconstruction that I have already touched upon, and he questioned, for example, what might on one view have been incredibly precise detail as to times in Mr Grantham’s statement dated 4 September 2009 in the earlier proceedings, and the reference therein to being aware of Mr Singh’s locked cupboard being broken into. As to these latter issues, I consider that they were satisfactorily explained by Mr Grantham who said that he may have noted down times, and provided an explanation that the locked cupboard had been mentioned by Mr Singh in a conversation with Mr Grantham’s wife, and noises from next door led them to believe that the cupboard had been broken into.[107]Mr Goldkorn was able to point to some inconsistencies between the way things were put in different witness statements and in giving evidence. For example in his statement dated 17 February 2010 Mr Grantham referred to the fact that on “numerous occasions both my wife and I were called upon by Mr Singh during the day and night to assist with the care of his sick wife”. This was said by Mr Goldkorn to be inconsistent with Mr Grantham’s evidence that he had only visited Mr Singh’s house on a limited number of occasions. However, again, I consider that Mr Grantham satisfactorily dealt with this by saying that, in reality, it was his wife who provided the most of the assistance.[108]Mr Goldkorn referred to a reference in paragraph 10 of the same statement to it being not unusual for Mr Singh or members of his family to pop in and ask for advice and assistance. This was said to be inconsistent with Mr Grantham’s evidence that Mr Singh only made two unannounced visits to his house. However, I do not believe that this was specifically put to Mr Grantham, and in any event is capable of explanation on the basis that Mr Grantham’s wife clearly had more contact with Mr Singh and Balvinder, and that what Mr Grantham is referring to is when Mr Singh simply turned up unannounced without, for example, a prior chat over the fence or in the street, or a telephone call. Further, I consider that very little assistance is provided by Mr Grantham’s mis-spelling of his companion’s name, and an apparent confusion as to what appeared in what witness statement, in both cases as indicated by the notes of Mr Grantham’s meeting with Mr Goldkorn’s firm that Mr Grantham was asked about.[109]A compelling point made by Mr Goldkorn that I return to below is as to whether Mr Grantham’s recollection relates to the correct document (the Will) or, rather, relates to some other document that Mr Grantham may have witnessed that did not require a second witness that Mr Grantham has simply forgotten about. On this point, Mr Goldkorn suggests that it is simply not credible that Mr Grantham did not see the attestation clause.[110]Balvinder was not the best of witnesses. I did have difficulty with a number of aspects of her evidence, for example she said that she was not disappointed when she found out about the terms of the Will. This I find this difficult to accept. Further, it is of some concern in assessing her overall credibility in the present proceedings that in the earlier proceedings she made a number of fairly wide and unsubstantiated allegations of perjury and tax evasion which ultimately had to be withdrawn. On the other hand, as referred to in paragraph 101 above, I do have concerns of my own as to the circumstances in which Jarnail first applied for letters of administration. These considerations might well have excited Balvinder’s own suspicions at the time.[111]I gained the impression that the present litigation is very much a mission on her part to correct what she perceives to be injustice, and, sadly, there is plainly no love lost between her and the Brothers. Balvinder demonstrated a propensity to be demanding and assertive and of having little regards for the views of other. She had little patience with Mr Goldkorn’s questions of her and I had, on several occasions, to bring her back onto the point and require her to answer the questions put to her.[112]Having said that, I reject Mr Goldkorn’s suggestion on behalf of the Brothers that she would “stop at nothing” to seek to defeat the Will. Despite what I have said as to her manner and demeanour, and whilst some of her responses to questions were not entirely satisfactory, Balvinder did not come across to me as someone who was setting out to tell a false story, and her basic narrative on key events since the death of Mr Singh, such as her discussions with Mr Grantham and, most importantly, her meeting with Mr Ahluwalia on 1 March 2010, came across to me as genuine and true and accurately recalled, albeit that Balvinder was, I consider, most foolish to seek to prepare statements for Mr Grantham and Mr Ahluwalia herself rather than get her own Solicitors to prepare statements in the ordinary way.[113]I found Mr Ahluwalia the least satisfactory of the key witnesses, and the one that I feel least able to place reliance upon so far as matters of credibility are concerned. Such would have been the case even but for the evidence that Mr Ahluwalia gave when recalled to give evidence, but, as Mr Goldkorn realistically recognised, that evidence, particularly as then developed under cross-examination by Mr Evans, simply was not credible. This latter evidence came across to me as a false attempt to persuade me that he and Mr Grantham were more familiar than Mr Grantham had suggested and thus that it was all the more likely that Mr Grantham had been present together with Mr Ahluwalia on some occasion when the Will was signed and witnessed by the two of them. I have asked myself why Mr Ahluwalia might have given such evidence. It is possible, as Balvinder suggested at one point, that the Brothers have put him under pressure. Another perhaps more credible explanation is that he disapproves of the attempt to challenge the Will. Graeme Bennett’s attendance note of his meeting with Mr Ahluwalia on 21 April 2010 contains this:
“As I was leaving he told me quite emphatically that irrespective of whether the Will was valid or not he thought that because Gurwak Singh had signed it his children should respect the wishes set out in the Will and not try to challenge it”
. Mr Bennett is unlikely to have made this up.[114]Apart from this I am troubled by Mr Ahluwalia’s ability to provide detail in relation to some matters but apparent inability to recall other matters, including, in particular, the signing of the Will. Thus it is odd that Mr Ahluwalia should recall that Mr Singh told him what he was going put in his Will, and that Mr Singh subsequently told him that he had “done it” and that the Will required two witnesses, whilst apparently having no recollection of when or where he signed the Will and who was present if he did so. Further, if that is his evidence, it is odd he should now be suggesting that as a result of recently reading the attestation clause, he believes somebody else must have been present.[115]As to the events on 1 March 2010, Balvinder was, no doubt, acting in a forthright manner, but it is quite apparent that, despite mistrusting him because of his continuing association with the Brothers who it was plain she did not like, Balvinder had respect Mr Ahluwalia as “Uncle” and her father’s closest friend. Further, the crossing out of part of the statement that Balvinder had prepared must, it seems to me, have occurred as part of a deliberate process whereby Mr Ahluwalia (or Balvinder with his approval) crossed out the parts of the statement that Mr Ahluwalia was not happy with. If Mr Ahluwalia’s account is correct, then it is very difficult to see how the statement came to be signed leaving in the detail that it did.[116]Subject to the caveat that this case is about very much more than whose version of events is to be preferred, my overall assessment of the witnesses is that where there are conflicts between Mr Grantham and/or Balvinder on the one hand, and Mr Ahluwalia on the other hand, I should prefer the former’s version of events. Evaluation of Probabilities[117]In accordance with the authorities referred to above, and in particular the guidance provided by Arden LJ in Channon v. Perkins (supra) at paras [45] and [46] as to what amounts to the “strongest evidence” and Mummery LJ’s injunction at para [53] that the executed Will, on its face due in form, is real evidence of due execution, I turn to evaluate the probabilities.[118]The evidence is that Sara Johnson of Hinckley & Hunt is likely to have provided an explanation to Mr Singh as to what was required and left with him readily comprehensible instructions. However, whilst Mr Singh’s command of English might have been relatively good, it was not, as I have considered above, anything like perfect, and it would be understandable if Mr Singh had got the wrong end of the stick, or not fully understood what was required. Further, whilst Mr Singh no doubt wanted to get it right so that the Will would not be open to challenge, it is, on my assessment of him, at least plausible that he would have been prepared to cut corners.[119]Having heard and carefully considered his evidence I am about as sure as I could be that Mr Grantham did in fact witness a document in his house for Mr Singh in broadly the circumstances that Mr Grantham described, and in particular without Mr Ahluwalia being present. I discount the possibility that Mr Grantham has persuaded himself of an event that did not occur at all, or that he has substantially embellished upon his version of events as a result of inaccurate reconstruction, although I do have some concern on this latter score as to whether Mr Grantham really does actually recall Mr Singh folding the document over in the way he described so as to obscure the attestation page albeit that this may in fact have occurred.[120]Although Mr Grantham can recall seeing Mr Singh’s brother wearing a turban in the next door garden of 120 North Road, it is my confident assessment of his evidence that, given the evidence as to when Mr Grantham and Mr Ahluwalia might have met, and more importantly the clearly distinguishing feature that Mr Ahluwalia, unlike Mr Singh, wore a turban, it is most unlikely that Mr Grantham would have forgotten the presence of Mr Ahluwalia at his home for the purpose of signing a document, or, perhaps more significantly, that he would have forgotten any other occasion elsewhere at which both he and Mr Ahluwalia were present for the purposes of witnessing Mr Singh signing the Will.[121]The collective evidence of Balvinder and Mr Ahluwalia, far from detracting from the conclusions I have reached as to Mr Grantham’s evidence, and the reliance that I can place upon it, in my judgement reinforces it. In particular, irrespective of what may have been said prior to 1 March 2010, I am satisfied and accept Balvinder’s evidence that Balvinder did specifically ask Mr Ahluwalia, at least several times, to ensure that he had understood the question the question that she was putting to him, namely who other than himself and Mr Singh had been present when he signed the Will, and that Mr Ahluwalia answered in positive terms that he had been the only other person present providing an explanation of events along the lines described by Balvinder and referred to in paragraph 71 above. I see no reason why Mr Ahluwalia would have provided Balvinder with the answer that I have found that he did unless it was his reasonable clear and genuine recollection, according with that of Mr Grantham, that he was not present when Mr Singh signed the will and it was witnessed by Mr Grantham. I therefore conclude that Mr Ahluwalia is now being less than frank in suggesting that he now has no real recollection as to the circumstances in which he came to add his signature to the Will.[122]I simply do not accept that Balvinder, a solicitor, if told by Mr Ahluwalia that he could not recall the position, would have pressured Mr Ahluwalia into making a wholly false statement and fabricated the detail that she has provided as to her discussions with Mr Ahluwalia on 1 March 2010, however passionate she might have been about her cause. Further, as I have explained, there are motives for Mr Ahluwalia later changing his mind after he more fully appreciated the significance of what he had told Balvinder. A lack of recollection avoids controversy.[123]The question does arise as to why Mr Singh did not ask Mr Grantham’s wife to act as a second witness when he attended at Mr Grantham’s home given her arrival whilst he was leaving, but he may have had his own reasons for that. Further the point does remain that, if they were not both present together, Mr Grantham and Mr Ahluwalia signed the Will apparently ignoring the attestation clause. However, given the layout of the Will it is entirely consistent that Mr Singh, being a private man, only folded over as much as he needed to in order to sign the document and allow the witnesses to sign and complete the information required of them.[124]On the basis of my above conclusion I conclude that the overall probability of the matter is that Mr Singh visited Mr Grantham to obtain his signature to the Will in the circumstances described by Mr Grantham, and subsequently obtained Mr Ahluwalia’s signature, most likely either in his own home or that of Mr Ahluwalia.[125]As Arden LJ made clear in Channon v. Perkins (supra) there is necessarily a “sliding scale” according to which evidence will constitute the “strongest evidence” in any particular case. In my judgement Balvinder has satisfied that burden because in the present case I do not consider that the evidential force of the presumption does itself outweigh the findings that I have been able to make on the evidence as to the probabilities.[126]I recognise that no case where the presumption has been rebutted has been cited to me, but of the cases cited to me the evidence relied upon therein to rebut the presumption has, as I read those cases, fallen well short of the evidence available to rebut the presumption of due execution in the present case, and the findings that I have felt able to make on the facts. The key distinguishing factors are, as I see them, that:126.1 I have been able to reach the firm conclusion that Mr Grantham would have recalled had he been present together with Mr Ahluwalia when Mr Singh signed the Will, key considerations being that Mr Grantham and Mr Ahluwalia had no regular contact with one another, and Mr Ahluwalia is a traditional Sikh who has always worn a turban and whose presence at such an event is therefore all the more likely to have been recalled by Mr Grantham;126.2 I have been able to find that the other witness to the Will, Mr Ahluwalia, did inform Balvinder in clear terms and in some detail on 1 March 2010 that nobody else had been present when he added his signature to the Will, that Mr Ahluwalia would not have so informed Balvinder had that not accorded with his genuine and reasonably firm recollection of what actually occurred, and that Mr Ahluwalia has been less than frank in subsequently playing down his recollection.[127]I should add that I am conscious, and have kept fully in mind that the effect of this Judgment is to frustrate Mr Singh’s testamentary intentions, and the result will be that there is an intestacy as there is no later will.[128]I therefore propose to order that Probate of the Will granted to Jarnail on 12 March 2010 be revoked and the Will pronounced against, and that Letters of Administration be granted.[129]There are outstanding issues as to the identity of the person or persons to whom Letters of Administration should be granted, the costs of the earlier proceedings, and the costs of the present proceedings. As to the former, I can see force in the person or persons appointed being an independent given the evident mistrust that exists within the family. I propose to hand down Judgment without requiring the parties to attend, and to direct the listing of the matter for a further hearing to deal with the outstanding issues. Time for seeking permission to appeal will be extended to that hearing. The parties should liaise with the Court as to the listing of the further hearing, providing an estimated length of hearing.[130]I am most grateful to Mr Evans and Mr Goldkorn for their helpful submissions.

order

18.1 Mr Ahluwalia;18.2 Mr Grantham;18.3 Balvinder;18.4 Ian Anguige (“Mr Anguige”) an accountant who acted for Mr Singh in relation to his income tax affairs for 2 years or so in the mid-1990s;18.5 Jarnail;18.6 Ajaib;18.7 Jugdeep (who merely confirmed his witness statement and was not cross-examined).