Ali Haider v Syed [2013] EWHC 4079 (Ch)

Case No HC12CO2727[2013] EWHC 4079 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/12/2013
Before
THE HONOURABLE MR JUSTICE BARLING
Between
Syed Ali HaiderClaimantMehdi Hassan SyedDefendant
Marcus Flavin (instructed by Barry & Co Solicitors of East Sussex BN246EE) for ClaimantCharles K Machin (instructed by Kelsall & Co of Chester CH35BH) for DefendantHearing Hearing dates: 14 - 15 and 18 -19 November 2013
JudgmentThe Hon Mr Justice Barling:Introduction
[1]This case concerns a contested will. There is really only one issue, namely whether the testatrix’s signature on the will in question is a forgery. For the sake of economy of expression I will refer to the disputed will simply as “the Will” whilst of course recognising that its status is in dispute.[2]I have heard from a number of witnesses of fact as well as from two experts. I propose to refer to the evidence only to the extent necessary to explain my conclusions. Failure to make specific mention of an item of evidence does not, of course, mean that I have ignored it or failed to take it into account. Similarly, a good many issues of fact have been raised by the witnesses, by no means all of which I have found it necessary to resolve in order to decide the case.[3]The Will purports to have been made by the late Mrs Naseem Syed Khan (“Naseem”) in “Bombay” (Mumbai) on 25 December 2005 in the presence of three witnesses, Syed Jaffer Husain, Zaki Shah, and Ali Reza Abdul Husain (collectively “the Attesting Witnesses”). Syed Jaffer Husain (“Jaffer”) is Naseem’s brother. Ali Reza Abdul Husain (“Ali Reza”) is Naseem’s brother in law, being married to Naseem’s sister, Raeesa Ali Reza Agha (“Raeesa”). Ali Reza has a brother called M. H. Agha (“Mr Agha”). Zaki Shah is a friend and neighbour of Ali Reza. The Attesting Witnesses all gave evidence from India at the hearing, via a video-link facility. Neither Raeesa nor Mr Agha gave evidence, but both have figured in the evidence given, as I shall explain in due course.[4]Naseem died in England on 17 July 2008 at the age of 68. Letters of administration in respect of her estate were granted on 11 December 2008 to her husband Jafar Ali Khan (‘Mr Khan’), on the footing that she died intestate. Mr Khan himself died on 8 January 2011 aged 76 leaving a will dated 2 September 2010 (“Mr Khan’s Last Will”).[5]Mr Syed Ali Haider (“the Claimant”) is Naseem’s nephew, being the son of another of her brothers, Akhtar Hussain, and is one of the executors of the Will. In these proceedings the Claimant seeks revocation of the existing grant to Mr Khan of letters of administration in respect of Naseem’s estate, on the ground that the grant was based on an incorrect statement, namely that she had died intestate whereas in fact she had made the Will.[6]Mr Mehdi Hassan Syed (“the Defendant”), denies the validity of the Will and denies the Claimant’s claim for revocation of the letters of administration granted to Mr Khan. The Defendant contends that Naseem’s signature on the Will was forged.[7]The Defendant is the sole executor and main beneficiary under Mr Khan’s Last Will, in respect of which probate is now said to have been granted on 28 March 2013. The validity of Mr Khan’s Last Will is not in issue. If the Will is a forgery, then it does not appear to be in dispute that Naseem’s estate passed to Mr Khan on her death intestate, and on his death would then pass in accordance with Mr Khan’s Last Will.[8]Another sister of Naseem is Farida Maan (“Farida”). She is married to Shaik Maan, and they live in Eastbourne. Both of them gave evidence before me. There are two further siblings of Naseem, namely Zakir Hussain and Shahnaz Hymayat Ali, who live in India.[9]The precise relationship between the Defendant and Naseem’s family is unclear. There are two rival views. One version, to which the Defendant subscribes, is that the Defendant’s father, Riaz Ul Hassan (“Riaz”), is the eldest brother of Naseem. I was shown a copy of an affidavit dated 7 March 2006 by Naseem’s mother, Mrs Kurshid Begum, in which she describes Riaz as “my eldest son”. This affidavit purports to have been witnessed by Ali Reza, as was confirmed by Jaffer in his evidence in cross-examination. The other version is that he is a cousin of Naseem and her siblings but was treated by the family as if he was another sibling. The Claimant and several of his witnesses, including Farida, Ali Reza, and Jaffer espoused the “cousin” version. In his evidence to me Jaffer said that his mother would not have understood what was written in English in her affidavit, and he did not agree that Riaz was treated like a brother by the family. It was clear from the evidence I heard that there has been a general falling out in the family which seems to be connected at least in part with the breakdown in 2006 of the marriage between Riaz’s son, the Defendant, and Mumtaz, the daughter of Ali Reza and Raeesa. Little if anything turns on this dispute about Riaz’s precise relationship to Naseem’s family, and I do not need to resolve it.

The law

[10]Mr Charles Machin of counsel, who appeared for the Defendant, accepted that given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant. He also accepted that cogent proof is required from the party making an allegation of forgery, albeit that the civil standard viz the balance of probabilities still applies. In this regard both Mr Machin and Mr Marcus Flavin of counsel who appeared for the Claimant, referred me to a passage from the speech of Lord Nicholls in In re H (Minors) [1996] AC 563 at 586:
“…this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow’s Will Trusts [1964] 1 WLR 451, 455: “The more serious the allegation the more cogent is the evidence required to overcome the unliklihood of what is alleged and thus to prove it.””
[11]I was also referred to the first instance judgment of Mr Jules Sher QC (sitting as a Deputy Judge of the High Court) in Fuller v Strum [2001] WTLR 677, to the decision of Blackburne J in Vacciana v Herod [2005] EWHC 711 (Ch) and the decision of Mr Peter Leaver QC (sitting as a Deputy Judge of the High Court) in Supple v Pender [2007] EWHC 829 (Ch). In the latter the learned Deputy High Court Judge, referred to the dictum of Lord Nicholls which I have cited above. He later stated that he began his assessment of the evidence from the position that all things are presumed to have been done properly, in other words that the Will had been executed properly. That was, he went on, at best a rebuttable presumption.[12]There being general agreement as to the principles I should follow, I need dwell no further on the law.

The factual background

[13]Throughout their marriage, which lasted well over 20 years from 1985 until Naseem’s death in 2008, she and Mr Khan lived in England, first at 219 Merton Road, Southfields, London, then at 22 Windsor Road, Thornton Heath, Surrey, and finally at 113 Gainsborough Crescent, Eastbourne. The latter two properties were in Naseem’s name. 113 Gainsborough Crescent is now apparently registered at HM Land Registry in Mr Khan’s name following his obtaining of letters of administration to Naseem’s estate.[14]I was told by Farida, and it is not in dispute, that she and her sister Naseem were extremely close and loving, providing mutual support over many years, with Farida caring for Naseem in her final months. She said that Naseem had come to England before her, and had worked at the Kuwait embassy in London, thereafter using savings to open a takeaway business which she ran for a couple of years. According to Farida’s evidence, Mr Khan wanted the matrimonial home to be in his name, and put a good deal of pressure on Naseem to do this, including physical pressure in the form of beatings. Farida told the court that Naseem was reluctant to do so as she was scared that if the property was in her husband’s name he would have reason to threaten her life. Generally in her evidence Farida painted a picture of a marriage which, at least in its latter years, was unhappy and marked by violence on the part of Mr Khan and by his unwillingness to play a role in work of any kind, including housework or looking after his wife in her illness. Farida described Mr Khan as someone with a split personality who could be vicious and who had tortured her sister physically and mentally.[15]Other witnesses testified to a similar effect, including Farida’s husband Mr Maan, a friend of Farida called Rona Stiles (whose witness statement was before me but who was not available for cross-examination) and the Claimant. The latter told the court that he had witnessed Mr Khan pushing his wife when they were at her mother’s home on a visit to India in 2005, and that Naseem’s mother had remonstrated with him.[16]This portrayal of the marriage is not accepted by the Defendant. It was put to the Claimant’s witnesses that Farida’s account is exaggerated in order to assist in explaining why Naseem might have wanted to keep the Will a secret from Mr Khan. What is not in dispute is that by about 2005 Naseem was in poor health, with kidney problems and failing eyesight. Similarly, it is common ground that at that time Mr Khan was manifesting symptoms of Alzheimer’s disease, including forgetfulness and mood swings.[17]It is common ground too that Naseem visited India in 2000, 2003 and 2005, and that at least on the latter visit Mr Khan accompanied her. Although at first Farida maintained in evidence that Mr Khan did not go with his wife in 2005, in the face of documentary evidence of an airline booking indicating that he did, she appeared to accept that she might have made a mistake. Accounts of the witnesses differ as to whether Mr Khan was with her on the other two visits, but I do not need to resolve this.[18]It is not in dispute that on her visit in 2003 Naseem bought Flat A/702, Red Wood, Andheri, Mumbai (“the Red Wood Flat”), and that Raeesa and her husband Ali Reza took up occupation of it at some point, but vacated it in 2005. However there is a dispute about the reason for their leaving then. The Defendant says that they had occupied it without Naseem’s permission, and that Naseem evicted them. The Claimant and Ali Reza deny this and state that Naseem asked Raeesa and her family to move in, and that they vacated after a year or so because the commuting to her husband’s place of work was too time consuming. The Claimant attributes the Defendant’s account to his having a grudge against Raeesa and her husband as a consequence of the breakdown in 2006 of the marriage between their daughter, Mumtaz, and the Defendant, to which I have referred.[19]It is clear that in 2003 Naseem gave Ali Reza a general power of attorney so that he could manage on her behalf another property which she owned in Solapur, India, which I shall call “the Row House”. This document appears to have been professionally drawn up, is signed by Naseem and Ali Reza, and is formally stamped and sworn before a notary in Mumbai on 4 May 2003 (“the 2003 PoA”).[20]There are two other documents I should mention at this stage, which were undoubtedly signed by Naseem. Both came into being during her 2005 visit to India. Both bear the same date, namely 19 December 2005, and it is common ground that they were both professionally drawn, witnessed and executed at the law office of Mr J F Saldanha, a lawyer and notary practising in Mumbai. One is a power of attorney in favour of her brother Jaffer and a family friend, Mohamed Reza Sadequian (“the 2005 PoA”). It appears from its terms that the 2005 PoA was to enable Jaffer and Mr Sadequian to manage the Red Wood Flat on Naseem’s behalf. The other document (“the Nomination”) also concerned the Red Wood Flat. It records Naseem’s nomination of her husband, Mr Khan, under the rules of the flat management company (Evershine Greens Co-operative Housing Society Ltd) of which she was a member, as her nominee in respect of 100% of her shares in the company. The Nomination went on to say “…I state that on my death, the shares mentioned above and my interest in the [Red Wood Flat]…should be transferred to [Mr Khan], the First named nominee….” No other nominees are included in the document. Both documents, and particularly the Nomination, have assumed some importance in the context of this case.[21]According to the Claimant’s case, six days after she signed the 2005 PoA and the Nomination, on the afternoon of Christmas Day 2005, Naseem signed the Will at Jaffer’s house in Solapur, a town some distance from Mumbai, in the presence of the Attesting Witnesses.[22]According to the terms of the Will, Raeesa and the Claimant were appointed her executors, and Mr Khan was to live in 22 Windsor Road and use her furniture, fixtures and belongings there during his lifetime; following his death the house, furniture and other effects were to pass in equal shares to five of her siblings, namely Jaffer, Zakir Hussain, Shahnaz Hymayat Ali, Akhtar Hussain and Raeesa, with a provision that if she sold 22 Windsor Road and acquired another property in its place the like provisions would apply to that other property. The Will also provided that her Mumbai flat was to be given to Raeesa, and her plot of land in Solapur (which may be a reference to the Row House) to Jaffer.[23]At this point I should record that I was also shown a letter to Barry & Co, the Claimant’s solicitors, from Professor Susan Lightman of Moorfields Eye Hospital dated 7 November 2012. It appears that Professor Lightman had been shown Naseem’s medical notes from 12 April 2006, and also the Will or a copy of it. Professor Lightman interpreted the medical notes as indicating that it was unlikely Naseem had any useful vision in her left eye at the time of the examination in 2006. Her right eye being 6/36, she could read only at 6 metres what a person with normal sight could read at 36 metres. She stated that this meant Naseem would most likely be able to read print the size of that in the Will with the aid of reading glasses of +4 strength or a not particularly powerful hand-held magnifying glass. No issue was taken by either side with the contents of this letter.[24]I will obviously need to return to the evidence about Christmas Day 2005 and the Will, but first I continue the chronological narrative.

Events following 2005

[25]After 2005 Naseem and Mr Khan continued to live at 22 Windsor Road until May 2007 when she sold that property and bought (and they both moved into) 113 Gainsborough Crescent. On 6 June 2008 she executed an enduring power of attorney (“the 2008 PoA”) in Jaffer’s favour. This instrument was prepared by Barry & Co, who are also now the Claimant’s solicitors. It is clear from an attendance note written by Mr Jonathan Barry dated 29 May 2008, the contents of which are not in dispute, that on that date Mr Barry and an assistant, Ms Sarah Davey, attended upon Naseem at 113 Gainsborough Crescent and were instructed by her to draw up the 2008 PoA so that her brother would “be able to deal with her family affairs in India”. It was left that when the document was drawn up, Mr Barry and Ms Davey would return so that Naseem could sign it. They explained that a special form of attestation would be necessary as she was blind and could not read.[26]The 2008 PoA was signed by Naseem and witnessed at her home on 6 June 2008. The document records that Naseem was blind and that it was read over to her by Mr Barry in the presence of Ms Davey, whereupon she signed it. It is also clear from the relevant attendance note that she paid Barry & Co’s fee by cheque on the same visit, and that Mr Khan was also present. Naseem and her husband took the opportunity to consult Mr Barry and Ms Davey on the question whether she had any recourse against the doctors who had treated her for the problem with her eyesight. She told Mr Barry that she had been blind for 4 years since certain drops had been put in her eyes. According to the attendance note, both Naseem and her husband were involved in the discussion about how to take a possible claim forward. It was left that they would consider the matter and contact Mr Barry if they wished to take it further.[27]It is significant that at the meeting with Barry & Co on 29 May 2008 Mr Barry records Naseem as stating that she was “thinking of making a Will, she will get in touch with [Mr Barry] about this and she asked if [Mr Barry] could possibly look after the deeds to her house 113 Gainsborough Crescent”.[28]Only a few weeks after making the 2008 PoA Naseem died of a stroke, on 17 July 2008. On 11 December 2008 Mr Khan obtained letters of administration to her estate on the basis that she had died intestate. He continued living at 113 Gainsborough Crescent until late 2010 when he went into a nursing home where he died on 8 January 2011.

Mr Khan’s four wills

[29]After Naseem’s death Farida told me that she and her husband continued to visit Mr Khan, who was becoming increasingly forgetful and unfit to look after himself. She said they were concerned about him and so would escort him shopping and on visits to the doctor and to hospital, as well as doing his cooking and cleaning.[30]Farida stated that as a result of this concern for his health a couple of months after Naseem’s death she suggested to Mr Khan that he should make a will, being unaware that Naseem had made the Will. Farida says she told Mr Khan that it was Naseem’s wish that the properties in the UK and India should be distributed to her siblings, and that he was happy with this and agreed to use solicitors in Eastbourne. However, Farida’s evidence was that the Defendant, whom she described as “a distant relative of Naseem”, occasionally came to see Mr Khan at weekends, and persuaded him to use a solicitor he knew called Mr Sultan Sabri. Mr Sabri, who gave evidence, eventually came to Eastbourne with a will which was read out in the presence of Farida, her husband, the Defendant, Mr Khan and three social workers. This, the first of four wills he was to make, was dated 12 November 2008 (“Mr Khan’s First Will”). Farida told the court that thereafter the Defendant often visited Mr Khan.[31]Under Mr Khan’s First Will the Defendant and Mr Khan’s niece, Qudsia Bano, were made executors; Farida’s husband and the Defendant were to receive respectively £1,000 and “the remainder of my money”; Farida was to receive “all my personal belongings and household goods”; and the proceeds of sale of “my freehold property at 113 Gainsborough Crescent” were to be divided equally between “my deceased wife’s brothers and sisters”. The document then identifies Riaz, Jaffer, Zakir Hussain, Akhter Hussain, Farida, Shehnaz Himayat and Raeesa. Interestingly, the first “brother” named is Riaz, the father of the Defendant.[32]Mr Sabri, a solicitor with Surrey Solicitors in Norbury, London, told the court that Mr Khan had instructed him to apply for letters of administration to Naseem’s estate, to draw his will, and to prepare a power of attorney in favour of the Defendant who looked after all his affairs. Mr Khan told Mr Sabri that he was on memory enhancing medication but was otherwise fit, and Mr Sabri’s evidence was that he took it upon himself to check that his client had the requisite mental capacity by asking him to provide various personal details of himself and his wife, which he did without difficulty. Mr Sabri also contacted Mr Khan’s GP about his mental capacity, obtaining a favourable reply. Mr Sabri said that to ensure that Naseem had left no will he advertised in the London Gazette on 2 September 2008. There was no response.[33]Mr Sabri told me that Mr Khan’s First Will was revoked by him on 9 December 2008, and that he made a second will on that date, removing Raeesa as a beneficiary and dividing “any property that I may own at the date of my death” between the remaining siblings, including the brother/cousin Riaz (“Mr Khan’s Second Will”). That will was in turn revoked on 24 December 2008, and a third made that day adding the Defendant as a beneficiary in addition to the siblings (still excluding Raeesa) (“Mr Khan’s Third Will”). In his evidence Mr Sabri explained how this will too was revoked and replaced by Mr Khan’s Last Will. In brief, Mr Sabri had a conversation with Mr Khan in May 2010 when the latter was ill and in a nursing home. Mr Khan told him that he wished to leave the property in Gainsborough Crescent to the Defendant in view of the love and help he had received from him since Naseem’s death. Mr Sabri said Mr Khan should wait a few weeks to make certain that this was what he wished. In the meantime he would draft the will. In the event Mr Khan’s Last Will was duly made on 2 September 2010. As seen, Mr Khan died on 8 January 2011. As I have said, the validity of Mr Khan’s Last Will is not in issue.

The emergence of the Will

[34]Farida told the court that at about the time of Mr Khan’s First Will there was an incident when Mr Khan physically attacked her when she was visiting him. As a result she was extremely upset and the matter was reported to the police. She stated that although she and her husband continued to visit him, at the end of 2008 her husband went into hospital for surgery on his knee. She herself was suffering back problems. Consequently, it appears from their evidence that Farida and her husband had little or no contact with Mr Khan thereafter. She called once or twice to see how he was but there was no reply, and she assumed he was being taken care of. She said that at some point one of his neighbours had told her that the Defendant was looking after him. The next thing Farida referred to was her telephoning the Defendant and being told by him that Mr Khan had died.[35]In his evidence to me the Defendant said that this phone call was on 4 February 2011. It therefore appears that there was not much contact between Farida and Mr Khan between the end of 2008 and his death at the start of 2011. This was consistent with the Defendant’s account; he said that Farida had not seen Mr Khan for about two years. He said that in that time Mr Khan was being looked after by carers and his doctor, and that he himself visited Mr Khan regularly. In the summer of 2010 Mr Khan became ill and went into hospital for a month. On his discharge the Defendant arranged for him to be moved to a nursing home where he lived until his death a few months later.[36]Following Farida’s phone call on 4 February 2011 the Defendant went to her house after work the same day; according to Farida they spent about three hours talking. The Defendant told me that Farida was very concerned about Mr Khan’s will and his house, and asked him about them. He had replied to the effect that she had Mr Sabri’s telephone number and should ask him for the details. According to both the Defendant and Farida he did not disclose to Farida the contents of Mr Khan’s Last Will.[37]However, Farida appears to have taken up the Defendant’s suggestion because I was shown a letter from Mr Sabri to Farida dated 11 February 2011 in which he refers to “our recent telephone conversation”, and goes on to “confirm” Mr Khan’s death and the details of Mr Khan’s Last Will. Mr Sabri also wrote:
“I can say without any reservation that Mr Khan was extremely displeased with you because of the treatment he received at your hands after his wife’s death. However, to honour the wishes of his late wife Mr Khan did not exclude you or your husband from his Will.”
The grant of the Gainsborough Crescent bungalow to the Defendant was also confirmed in the letter. In his evidence Mr Sabri stated that the “recent” telephone conversation took place the day before the letter, viz 10 February 2011.[38]Events now seem to have progressed rapidly. At about this time the Claimant said that Farida had called him to say that Mr Khan had died and that she had already spoken to Jaffer in India to inform him. Jaffer had then mentioned to her that Naseem had made the Will in India, which the Claimant later saw when Raeesa and Ali Reza brought it to England. According to ticket invoices introduced in evidence by the Claimant and not challenged, on 11 February 2011 Ali Reza and his wife Raeesa arranged a flight to the UK departing India on 14 February and returning on 6 March 2011. The Claimant stated that he was given a copy of the Will by Raeesa in England and that she had the original. Later they went to the office of Barry & Co in Eastbourne and put a caveat on Mr Khan’s Last Will.

Mr Kader’s evidence

[39]I should now refer to another aspect of the evidence relating to this period. Nadeem Abdul Kader (“Mr Kader”) gave evidence in these proceedings as follows:(1) He is a door fitter and a friend of the Defendant, having known him since they both lived in Mumbai in the 1990s. When the Defendant came to England in 2001 he worked in a restaurant owned by a Mr Mohammed Iqbal Memon (“Mr Memon”). Mr Memon was Mr Kader’s uncle and a life-long friend of Ali Reza, to whose daughter, Mumtaz, the Defendant was then married. There were problems with the marriage and Mumtaz eventually left the Defendant in October 2006, living for a time at Mr Memon’s house. As a good friend of Mumtaz’s father, and as the employer of the Defendant, Mr Memon had tried to intervene. Eventually these difficulties resulted in Mr Memon sacking the Defendant and a certain amount of ill feeling.(2) Mr Kader worked for Mr Memon’s son, Asif Memon (“Mr Memon Jr”), who owned a marble company. Mr Kader would regularly visit the office of the father and son in Docklands. On an occasion after the death of Mr Khan, Mr Kader was in the office when Mr Memon took a phone call. Mr Kader heard only one side of the conversation but gleaned that the caller was telling Mr Memon that Mr Khan had died and had left his estate to the Defendant. Mr Memon became angry and told the caller that he would phone Ali Reza in Mumbai and get back to the caller. When the call was finished Mr Memon said the caller was Farida, and he asked Mr Kader whether he knew that the Defendant was to receive Mr Khan’s estate. Mr Kader replied that the Defendant had told him this. Mr Memon then phoned Ali Reza in Mr Kader’s presence and asked whether he knew about this. Mr Kader could not hear the other side of the conversation, but Mr Memon told Ali Reza that he would make sure the Defendant would not get a penny. He said that Ali Reza should do whatever is possible to stop him getting the estate, including preparing a will of Naseem if need be. Mr Memon told Ali Reza that he should bring a will to London and he would pay for his air ticket, and for any legal expenses if the matter were to come to court; and that he would ensure the Defendant’s money would all be taken by the lawyers. Mr Kader told the court that he informed the Defendant of this conversation when the Defendant returned from a trip abroad.(3) At the beginning of his oral evidence Mr Kader corrected a statement in his witness statement. He had said that the incident in Mr Memon’s office took place “about two months after the death of [Mr Khan] upon the 8th of January”. He corrected this to “two to three weeks”. In cross-examination he denied that this change was made because he had heard about Ali Reza’s flight booking to London on about 11 February 2011.(4) It was put to Mr Kader in cross-examination that it was not credible that Mr Memon would conduct these telephone calls in Mr Kader’s presence knowing that he was a friend of the Defendant, and therefore would inform the Defendant of them. Mr Kader replied that Mr Memon was very angry, and that in his view Mr Memon was happy for Mr Kader to hear and to tell the Defendant because he would have hoped to scare the Defendant having regard to Mr Memon’s wealth and connections. Mr Kader told the court that Mr Memon was very rich and for that reason believed he could do anything he wanted; that he was not scared of anyone because of the money he had.(5) Mr Kader gave further details of Mr Memon’s character and activities, which were not challenged. Some of these details were contained in newspaper articles. It appears that Mr Memon was involved in organised crime; he used an alias, Iqbal Mirchi; he was wanted by the Indian police for drug smuggling, causing explosions, match fixing and other organised criminal activities and there was an outstanding warrant for his arrest there; he had been arrested in London in 1995 by Scotland Yard officers in relation to these matters but a request for extradition was refused by the court, and the police investigation in the UK was ultimately terminated for lack of evidence. In 2001 he was given indefinite leave to remain.(6) All relations between Mr Kader and Mr Memon had ceased in about the autumn of 2011. This arose when Mr Kader broke off an engagement between Mr Memon Jr and Mr Kader’s daughter – an engagement which had been arranged between Mr Memon and Mr Kader’s mother (who is Mr Memon’s sister) when the subjects were children. When Mr Kader took this action at his daughter’s request Mr Memon made threats to kill Mr Kader, which resulted in Mr Memon’s arrest. Mr Kader told me that the criminal charge was not pursued because a witness declined to testify.(7) Mr Memon had died of a heart attack in the summer of 2013.(8) Mr Kader stated that Farida knew Mr Memon well and would often telephone him. In her evidence Farida denied knowing him well and denied that she had made the phone call described by Mr Kader.[40]The Defendant said in cross-examination that the day following his discussion with Farida on 4 February 2011, he had left the UK on a pilgrimage to Damascus, returning on 10 February 2011. Mr Kader had then told him about Mr Memon’s telephone conversations. He agreed that he had not mentioned this in his witness statement, remarking that “no-one would say anything about Mr Memon while he was alive.”[41]I will comment on Mr Kader’s evidence, and Farida’s denial of the alleged contact between herself and Mr Memon, in due course.

The evidence relating to the making of the Will

[42]Pursuant to my permission, following a contested application by the Claimant under CPR rule 32.3 made on the morning the trial began, the Attesting Witnesses gave evidence in this case from a residence in India, by way of the court’s video conferencing facility (VCF). I make some comments on the lateness of the Claimant’s application at the end of this judgment.[43]Each of the Attesting Witnesses was asked to confirm that there was no-one else in the room with him when he was giving evidence. Each had access to copies of the main documents about which they were being questioned, although once or twice a document appeared to be missing from the bundle and it was necessary for counsel to show it to the witness over the VCF. I formed the view that, like all the other witnesses in the case, each of the Attesting Witnesses had a good understanding of spoken English, that each was comfortable speaking and reading the language, and that the VCF was of good quality and quite sufficient for them to be able to follow the questions which were put to them, and for the court to be able to see the witness’s demeanour.[44]Each of the Attesting Witnesses had made two affidavits. The first was dated 9 January 2012 and contained two paragraphs, in the effective part of which the deponent identifies a true copy of the Will and confirms that Naseem signed her name on the final page of it in the presence of the deponent and the other Attesting Witnesses, who all attested and signed in her presence. The second version was dated 8 January 2013 and contained three paragraphs. Save for the different names of the deponents, all three of the 2012 version are in identical terms; the same applies to the 2013 version. The difference between the two versions is the addition of a paragraph in the 2013 version stating “I confirm [Naseem] read the Will herself with the aid of her reading glasses, afterwards at [Naseem’s] request [Jaffer] read the Will over to her as [Naseem’s] eyesight was not good.”[45]None of the Attesting Witnesses could remember why there were two versions. Zaki Shah and Jaffer could not remember the earlier version at all. Ali Reza thought that the Claimant’s solicitor had asked him to make the longer version. Each of them confirmed orally that the longer version was true.

Ali Reza’s evidence

[46]Ali Reza said that Zaki Shah was a friend and neighbour who had a nearby restaurant. On the day before Christmas Day 2005, he and Zaki Shah had travelled to Jaffer’s house in Solapur. This was about 450 kilometres from Mumbai where they lived, and the journey by car took 7-8 hours or longer depending on the traffic. Christmas is a holiday time in India. He and Zaki were alone in the car. While they were at Jaffer’s house Naseem, his sister-in-law, had asked him and Zaki Shah to witness the Will. They had not known this would happen before they arrived there. This occurred sometime in the afternoon of Christmas Day when Mr Khan was sleeping upstairs. Only the witness, Naseem, Jaffer and Zaki Shah were present. Jaffer read the Will to Naseem at her request. She read it wearing her glasses. Naseem had been able to read when wearing her glasses. Naseem signed the Will in front of him. Naseem had then asked them not to disclose this to her husband or anyone else. She had not given a reason. He did not know who had worded and typed the Will, nor why Farida and Riaz were not included as beneficiaries. No-one had said anything about their absence from the Will at the time of the signing. Nor at the time of the signing had anyone mentioned that a few days earlier Naseem had made the Nomination, expressing the wish to leave the shares in the Red Wood Flat to Mr Khan on her death. Nor was any mention made of the 2005 PoA made by Naseem at the same time.[47]Ali Reza was asked by counsel how a copy of the Will certified by his brother, Mr Agha, had come into being. I interject to explain that the document in question is a photocopy of the Will, stamped on each page “M.H.AGHA (B.A.) (S.E.O) Special Executive Officer” then an address in Mumbai. Each page also bears the signature “M.H. Agha”, the date “11/8/2009” and a stamp. Ali Reza could not point to any institution or entity in respect of which Mr Agha was a “special executive officer”. Ali Reza said that his brother ran a restaurant business with him in Mumbai and was not a lawyer. He said that Jaffer had the original of the Will and that a copy was brought to Bombay in 2009, which his brother had stamped to “make a true copy”. He did not know why. Jaffer had given the witness a copy to give to Farida, which he had done when he came to England in 2011.[48]It was put to the witness that Naseem was not in India on Christmas Day 2005, and he was shown a UK travel agent’s booking confirmation recording a confirmed BA economy return flight booking from Bombay to Heathrow for Naseem and her husband on 20 December 2005. He said that that was wrong, and insisted that Naseem had been in India on that day.[49]It was also put to him that the Defendant would say that he too (Ali Reza) had been in the UK over the Christmas period 2005. He denied this.[50]The witness told me that when Naseem had bought the Red Wood Flat in 2003 he had been given a power of attorney to enable him to look after it, and he and his wife Raeesa had been allowed to live there. He denied that Naseem had told them to leave – they had moved out in 2005 because of the distance to travel to his work in Mumbai. They were living in the Red Wood Flat again now.[51]Ali Reza confirmed that he had been a good friend of Mr Memon until his death. He had no recollection of a phone call from Mr Memon informing him that Mr Khan had died and had left his house to the Defendant. He commented that he did not see how Mr Khan could make a valid will when he had Alzheimers. He said that the suggestion that he had been involved in the fabrication of the Will was rubbish.

Zaki Shah’s evidence

[52]Zaki Shah confirmed that he and Ali Reza are life-long friends, and that he was also a friend of Naseem and her family. At Christmas 2005 he had accompanied Ali Reza to Jaffer’s house in Solapur while his own wife and children had gone to her mother’s. He had signed the Will at Naseem’s request on the afternoon of Christmas Day, having stayed at Jaffer’s overnight. Naseem had been wearing her glasses when reading and signing the Will. Notwithstanding what was in his affidavit, Zaki Shah stated that no-one except Naseem had read the Will. She had explained it to them. Mr Khan was sleeping upstairs and only the Attesting Witnesses and Naseem were present. After it was signed the Will was given to Jaffer to keep in his safe, and the witness never saw it again.[53]He said that the Defendant would be lying if he stated that Ali Reza was in the UK at the time. When the booking confirmation form indicating that Naseem had a confirmed flight from India on 20 December was put to him, he suggested that it was a fake.[54]Although earlier in his testimony the witness had given an assurance that there was no-one else in the room with him, at one point in his evidence a prompt suggesting the answer “yes” to a question from counsel was distinctly audible, which the witness then repeated as his answer. On this being referred to, the witness once more gave the assurance that no-one else was in the room.[55]The witness denied that he had discussed his evidence with the other two Attesting Witnesses before giving evidence that day.

Jaffer’s evidence

[56]Having confirmed that one of the signatures on the Will was his own, Jaffer was asked who had drawn up and typed the document. The witness did not answer for some time and looked agitated. At length he answered that Naseem had said she wanted to make a will and so he had taken her to a place in front of the High Court where there are lawyers milling about seeking customers. He did not remember who it was, but Naseem had asked one of them to draw a will for her. He had said “I’ll do your job”. The witness said he did not know why she did not get her own solicitor to draw it, or have it drawn at the same time as she had arranged for the 2005 PoA and the Nomination to be prepared six days earlier. He said that it was up to her what she did. He confirmed that he had been with her at the lawyer’s office when those documents were made on 19 December 2005.[57]The witness told me that the Will was signed and witnessed at his house in Solapur on the afternoon of Christmas Day 2005, when Mr Khan was in his bed taking a nap. Ali Reza and his friend Zaki Shah were staying with him. Naseem had said to Ali Reza “I’ve made a will”. Naseem had put on her glasses, had read the Will and had asked the three of them to sign, which they did. When asked about the statement in his affidavit that he had read over the Will to her, the witness insisted that he had not done so.[58]Asked about the contents of the Will, and in particular the fact that Farida and Riaz had been left out of it, the witness said he did not know why Farida had not been included. Riaz however was only a cousin not a brother. He was not treated as a family member. When asked why Naseem should arrange on 19 December for all the shares relating to her ownership of the Red Wood Flat to be transferred to her husband on her death, and then a few days later make a will leaving that property to Raeesa, the witness stated that Mr Khan was an arrogant man.[59]He said that Naseem had asked him to keep the Will secret until her husband had died. The witness explained that if Mr Khan had been told he would have got angry and punished his wife in some way, eg by not giving her food. The witness had therefore agreed to keep the Will in safe keeping.[60]Jaffer was asked how the stamp came to be placed on a copy of the Will by Ali Reza’s brother, Mr Agha. The witness said that he had approached Mr Agha and had shown the Will to him. Mr Agha had said he could stamp a copy as he had some executive function with the State of Maharastra. The witness thought this had been done on 11 August 2009. After Mr Khan died he had given the copy of the Will bearing Mr Agha’s stamp to Raeesa to give to Farida in England. The original was brought to England too.[61]When asked about the flight booking confirmation for Naseem and her husband for 20 December 2005, the witness said that at the last minute Naseem had decided to come to Solapur rather than taking their flight home. She had said she was not going to London. The witness could not remember by how long Naseem and her husband had extended their stay with him.

My assessment of the evidence of the Attesting Witnesses

[62]I do not accept the evidence of the Attesting Witnesses as to the making of the Will. In my view it is overwhelmingly likely that she and her husband returned to the UK on the BA economy flight they had reserved, confirmed and paid for on 20 December 2005. Jaffer’s suggestion that Naseem would suddenly, and for no reason that Jaffer could really explain, decide to stay on beyond the six weeks or so they had arranged, is implausible in the extreme. It is significant in this regard that Naseem had completed the 2005 PoA and the Nomination with her lawyer on the day before her booked flight home.[63]Even more implausible is the suggestion that this lady would conduct the important business of making a will in the manner and circumstances suggested by Jaffer in his evidence. Everything I have heard about Naseem in the course of the evidence indicates that she was a shrewd, meticulous and careful person who liked to arrange her affairs in an orderly way with the help of professionals. The attendance notes of Barry & Co, her solicitors in the UK, testify to these qualities, as do the arrangements she made for, for example, the 2003 PoA, the 2005 PoA and the Nomination. The idea that within six days of visiting her lawyers in India for the purpose of executing these instruments, she would decide to make a will and, rather than going through those lawyers, would seek out an unknown and unidentified person in the street outside the law courts and give him instructions to draw her will, is literally incredible. If, which I do not accept, she had postponed her return to the UK, and decided to make a will in India, she would have gone to the lawyers who knew her and with whom she had just been dealing.[64]It is also wholly implausible that Naseem would make a will leaving the Red Wood Flat to Raeesa a few days after she had made a quite different arrangement for the flat in the event of her death. It is also surprising that she would make a will which omitted even a mention of the sibling with whom she had the closest relationship and saw on virtually a daily basis having moved house specifically to be near her, namely Farida. In her evidence Farida herself struggled to find an explanation for this omission.[65]Furthermore the suggestion that Naseem made the Will is inconsistent with her discussion with her solicitor, Mr Barry, on 29 May 2008, when she is recorded as stating that she is thinking of making a will and will get in touch with him about it. There is not a shred of evidence that Naseem had a problem with her memory. Indeed, as I have noted, the evidence shows her to be a meticulous person. It is highly improbable that if she had made a will in India three years earlier she would have forgotten about it.[66]I must also refer to the general demeanour of the Attesting Witnesses. Even allowing for the natural barrier created by a VCF, each of them appeared to me agitated, uneasy and hesitant when giving evidence. In fairness to the witness Zaki Shah I have discounted the apparent prompting of him by a hidden third party, in case there might have been some gremlin in the technology which created that effect. Nevertheless I did not find any of the Attesting Witnesses at all convincing. Their accounts of the signing of the Will were surprisingly poor in detail except for two or three features which each of them seemed certain about, in particular that Naseem was wearing her glasses when she read the Will, that Mr Khan was sleeping upstairs, that only Naseem and the Attesting Witnesses were present and that it was in the afternoon of Christmas Day. I formed the distinct impression that their evidence of the main event had been rehearsed, and they were reluctant to stray into any detail beyond that account.[67]Jaffer’s accounts of Naseem’s postponement of their flight home, of his helping her to find a street lawyer to draw the Will, her requirement of secrecy, and his dealing with Mr Agha were particularly vague, unsatisfactory and unconvincing.[68]As to the evidence of the Attesting Witnesses that Naseem had requested that the Will be kept secret from her husband until his death, this too is implausible and inconsistent with unchallenged evidence of Naseem’s behaviour. There is no suggestion in Mr Barry’s May 2008 attendance note that he was asked to keep the fact of her planning to make a will secret from her husband. Further, Mr Khan was certainly present and participating actively in discussions of legal matters concerning Naseem on the same solicitors’ visit to her house a few days later. The secrecy request is also inconsistent with Naseem allegedly asking for the Will to be signed and attested when Mr Khan was taking an afternoon nap and could presumably have appeared among them at any moment. On any view Jaffer did not respect the alleged request since he took it upon himself freely to show the Will to Mr Agha.[69]Finally it is extraordinary that in the nearly three years between the alleged making of the Will and her death, Naseem did not tell Farida, with whom it is accepted that she had a close and loving relationship, that she had made the Will, or indeed that neither Ali Reza nor Jaffer told Farida, given the freedom the latter felt to tell Mr Agha.[70]I should say that the issue between the Defendant’s evidence and that of Ali Reza, as to whether the latter was himself in the UK with the Defendant and Mumtaz during the Christmas period in 2005, is not one which I have felt it necessary to reach a conclusion.

My assessment of Mr Kader’s and Farida’s evidence re Mr Memon

[71]I found Mr Kader a clear, straightforward and convincing witness generally. Moreover, it is clear from Farida’s own evidence that she was extremely angry and upset about the contents of Mr Khan’s Last Will. The tone of the letter to her from Mr Sabri clearly indicates that she had expressed her displeasure to him on the telephone after finding out about the contents. Further, in her evidence to me she stated that the Defendant had “poisoned” the mind of Mr Khan against her, referring to him as “an outsider, not in the family and trying to grab all my sister’s money….I depended on him and he cheated me by changing Mr Khan’s mind when he was very ill. Why else did Mr Khan change his mind?” It would certainly not have been inconsistent with the anger she felt, and clearly still feels, for her to speak to Mr Memon if she knew him well and thought he might be able to help somehow. In that regard my impression was that Farida knew Mr Memon better than she was prepared to admit. He was a very close friend of her brother in law. Nor did I feel that her denial, in cross-examination, of having phoned Mr Memon on the subject of Mr Khan’s death and Last Will had much conviction. Also, the clear impression I formed of Mr Kader, having seen him in the witness box, would not be consistent with his falsely stating that Mr Memon had identified Farida, a respectable elderly lady, as the telephone caller.[72]Certain non-controversial facts, such as the timing of the travel arrangements of Ali Reza and his wife Raeesa, are consistent with the nature and timing of the phone calls of which Mr Kader testified.[73]On the other hand there is the surprising willingness of Mr Memon openly to encourage the fabrication of a will depriving the Defendant of his inheritance, in the presence of a known friend of the Defendant. Also it is curious that the Defendant did not refer in his witness statement to what his friend Mr Kader had told him on his return from Damascus. His remark that “no-one would say anything about Mr Memon while he was alive.” is understandable in view of the undisputed evidence. However, the Defendant’s witness statement is dated October 2013 whereas Mr Memon died in the summer. There remains, too, the question of Mr Kader’s correction to his witness statement in relation to the date of the incident in Mr Memon’s office. Absent the correction Mr Memon’s alleged plot to forge a will would have post-dated the arrival of the Will itself in England with Ali Reza and his wife.[74]A finding on this issue is not strictly necessary because it makes no difference to my overall finding and conclusion in these proceedings based on the other evidence. However, as a matter of fact I conclude that Mr Kader is telling the truth. I accept the genuineness of his correction of the date. In fact the original statement was itself vague:
“about 2 months after”
. I also accept his explanation for Mr Memon’s surprising openness in his presence. This is not at all implausible given the evidence of Mr Memon’s background and character.

The expert evidence

[75]As I mentioned at the beginning of this judgment, I had the benefit of reports by two experts, both of whom gave evidence and were cross-examined. Dr Audrey Giles, a forensic document examiner, was instructed and called by the Claimant. Her conclusion, set out in her report dated 10 May 2013, was that the handwriting evidence available to her was conflicting, extremely difficult to interpret and therefore inconclusive. She was “unable to determine if the signature on the Will dated 25 December 2005 is a genuine signature of Naseem Syed Khan or a well executed simulation.” In oral evidence she explained that this meant the evidence in favour of genuineness is equal to that against.[76]Mrs Ruth Myers, a graphologist and forensic handwriting analyst, was instructed and called as a witness by the Defendant. Her conclusion was that the evidence available to her provided “strong support for the proposition that someone other than Mrs Naseem Syed Khan signed the will.” This conclusion was set out in Mrs Myers’ initial report dated 23 November 2011, and was confirmed in her supplemental report of 5 June 2013, which followed her examination of additional documents, including the original of the Will itself. For the purposes of her first report she had only had access to a copy of the Will.[77]Each maintained their original conclusions when they gave oral evidence. The two experts had not met before the hearing in order to identify common ground. The Defendant was willing for this to take place but the Claimant was not, on ground of cost.[78]Dr Giles was critical of the report and conclusions of Mrs Myers in a number of respects. To begin with she expressed some scepticism about the leaning towards graphology in Mrs Myers’ qualifications. She herself was a trained scientist, with some 36 years experience in all areas of the scientific examination of documents and handwriting, in the context of her work for the Documents Section of the Metropolitan Police Forensic Science Laboratory (Scotland Yard), of which she was at one time the Head. On the other hand Dr Giles considered graphology to be a “pseudo-science” which was mainly directed to deriving a person’s characteristics from handwriting. She did not regard graphology as a suitable background for the forensic examination of signatures. She was of the view that in large measure the institutions where Mrs Myers had been qualified, which were all in the United States, had a strong connection with graphology.[79]Mrs Myers took issue with the suggestion that graphology was a pseudo-science. It involved the study and analysis of the form and structure of handwritten characters.[80]Next, Dr Giles questioned the manner in which Mrs Myers’ conclusion was expressed. She said that Mrs Myers only appeared to have looked at the factors which pointed to the challenged signature being a forgery, whereas it was good practice to identify also factors which point the other way, as she herself had done.[81]In relation to the substance of Mrs Myers’ reports, Dr Giles stated that some of her findings were simply wrong. In particular: 1. Mrs Myers had stated that there were pen lifts in the challenged signature, whereas she had been able to see none, having examined the signature on the original of the Will in her laboratory with the aid of a stereo-microscope and a video spectral comparator. 2. Mrs Myers had stated that Naseem’s specimen signatures on two documents from 2005 (the 2005 PoA and the Nomination) were “without tremor”, whereas Dr Giles said they exhibited tremor. 3. Mrs Myers had stated that the challenged signature had been made with a black ball point pen whereas it had clearly been made with a black felt tip pen, whose ink had flowed into the paper which had acted like blotting paper distorting the signature. Dr Giles said that the ink in question was totally different in its nature and effect from the ink of a ball point pen.[82]When these matters were put to Mrs Myers she readily agreed with Dr Giles in relation to points 2 and 3. In relation to point 3 she said “It doesn’t really matter as we are both coming to a similar view.” Equally she regarded point 2 as making “no difference to my conclusion.” It was not clear whether she was as ready to concede point 1. Her answer in relation to that was “We can perhaps agree to differ. We are not doing a science.” When dealing with these issues she appeared very uncomfortable and somewhat defensive. The main thrust of her evidence, and basis for her conclusion, was that the challenged signature exhibited many differences from the other specimen signatures which she had examined, namely those on the 2005 PoA and the Nomination.[83]Dr Giles agreed that some of the differences identified by Mrs Myers existed, but she discounted their significance given the “poor fluency and a high degree of variation” in the genuine signatures at about the relevant time in 2005. In Dr Giles’ opinion this meant that Naseem’s signature was vulnerable to simulation and very difficult to authenticate.[84]Dr Giles had forensically examined Naseem’s signatures on three additional documents which Mrs Myers had not seen for the purposes of her reports, namely the 2003 PoA, a consent form from 2007, and the 2008 PoA. However Mrs Myers told the court that that she had now seen the signature on the 2008 PoA, and it did not change her conclusion.[85]In view of my findings in relation to the other evidence in this case it is not necessary further to describe in this judgment the details of the two experts’ observations on all the various specimen signatures. Both experts were well qualified to provide the court with assistance, and did their best to do so, although it would be difficult for any expert to equal the extent of relevant experience and the professional distinctions of Dr Giles in the forensic examination of documents. Mrs Myers’ readiness to concede that matters she had asserted in her reports were wrong, without any real explanation for how the errors came about, did not inspire me with confidence in her conclusion. Nor did she attempt to meet the point that in her reports she had only identified factors against the genuineness of the challenged signature, and had not sought to evaluate and put in the balance any positive factors. For these reasons, in particular, I preferred the assessment and inconclusive conclusion of Dr Giles.[86]What I therefore draw from this aspect of the evidence is that it is equally possible that the challenged signature is a forgery as it is possible that it is genuine. That must be fed into my overall assessment of the evidence.

Conclusion

[87]I remind myself of the principles which I have set out at paragraphs 10 and 11 above. Bearing those principles in mind, I have without hesitation concluded that in the light of all the evidence Naseem did not sign the Will and that her signature on that document is a forgery. I do not need to, and do not, make any specific findings as to how or when it came into existence.[88]The Claimant’s claim for relief in the proceedings must therefore fail. The parties will no doubt inform the court if there is any specific consequential order which I should make.

Postscript: The need to apply in good time to use VCF

[89]By CPR rule 32.3, use of VCF to give evidence requires the permission of the court. The relevant practice direction relating to the use of VCF (32PD.29ff), set out at page 1011 ff of Volume I of the White Book 2013, clearly implies that an application for permission should wherever practicable be made well in advance of the hearing at which the VCF is intended to be used. If the application is not made until the start of the trial, as in this case, the timetable of the hearing is likely to be disrupted as a result of the court needing to hear and give proper consideration to the merits of the application, and to any objections of the other parties. There is also a danger that a late application will mean that the party wishing to employ VCF will not have liaised appropriately with the court’s technical staff so as to ensure that a smooth and timely operation of the VCF can take place.[90]The Claimant’s solicitors appear not to have been aware of the need to make an application for permission. Be that as it may, no application was made here until the start of the trial. Objection to use of VCF for the oral evidence of the Attesting Witnesses was taken on behalf of the Defendant. As a consequence it was necessary for me to hear both counsel at some length and to give a ruling. Inevitably this caused some delay to the start of the hearing proper.[91]It further transpired that those responsible for arranging the VCF on the Claimant’s side had omitted to provide the equipment – a laptop – needed for the kind of facility they were contemplating. As a result some re-ordering of the evidence was required causing further loss of time.[92]It is important that litigants and their advisers who contemplate the use of VCF should familiarise themselves and comply with the relevant rules and practice direction to which I have referred, and in particular make the appropriate application in good time.

Cited in 1 later judgment