Mosammat Shapna Khatun v Shamim Hasan & Anor [2025] EWHC 1658 (Ch)

[2025] EWHC 1658 (Ch)

IN THE HIGH COURT OF JUSTICE PT-2023-000434

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

PROPERTY TRUSTS AND PROBATE LIST (ChD)

Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL

Date 1 July 2025

IN THE ESTATE OF MR MONIR JAMAN SHAIKH (DECEASED) (PROBATE)

B E T W E E N:

[1]This judgment follows the trial of the Claimant’s claim challenging the validity of a will dated 19 September 2019 (the Disputed Will), purportedly executed by Mr Monir Jaman Shaikh (Mr Shaikh) who died on 7 April 2020. By a Claim Form dated 8 March 2021 the Claimant (Ms Khatun) challenged the Disputed Will on the grounds of want of due execution and fraud. In the end only the fraud claim was maintained. Parties

[2]Ms Khatun is the only child of Mr Shaikh. The First Defendant (Mr Hasan) is the sole beneficiary under the Disputed Will, which expressly excludes Ms Khatun from inheriting any part of Mr Shaikh’s estate. The Second Defendant (Mr Pathania) is the sole executor under the Disputed Will, and one of two attesting witnesses to its alleged execution by Mr Shaikh. Summary of claim and defence

[3]Ms Khatun challenges the authenticity of the Disputed Will on the basis of fraud, alleging that it was inherently improbable that Mr Shaikh would have bequeathed his entire estate to Mr Hasan, depriving her of any part of his estate. She says she enjoyed a good relationship with Mr Shaikh, and was unaware, or only dimly aware, of the existence of Mr Hasan. She was also unaware of the existence of any will. She challenges Mr Hasan’s claim to have had a relationship with Mr Shaikh akin to that of son, or nephew, or next of kin. She also relies on the expert evidence of Dr Ruth Myers, a forensic handwriting analyst, who concludes that there is strong evidence to support the proposition that the signature on the Disputed Will purporting to be that of Mr Shaikh had been authored by another hand than his, by someone who was familiar with the signature of Mr Shaikh.

[4]Mr Hasan says that he enjoyed a very close relationship with Mr Shaikh, akin to that of a close family member, and that Mr Shaikh was in effect estranged from Ms Khatun. Mr Hasan was only made aware of the existence of the Disputed Will some weeks after Mr Shaikh’s death, when Mr Pathania knocked on his door and told him about it. Mr Pathania, a longtime friend of Mr Shaikh, gives first hand evidence concerning both the drafting and the execution of the Disputed Will, which he says was attested by himself and a Mr Alam, another friend of Mr Shaikh, who also gave evidence at trial.

[5]The circumstances in which the Disputed Will allegedly came to be drafted and executed, and the respective relationships between Ms Khatun, Mr Hasan and Mr Shaikh, will be explored in due course. First, it is necessary to relate the procedural background to the claim, in order to explain in particular the position regarding both the production of the original of the Disputed Will, and the issue of expert evidence. Procedural background

[6]The procedural progress of this claim has been unsatisfactory in a number of important respects. Following a Costs and Case Management Conference on 22 September 2022 (the CCMC) it appears that disclosure was given and witness statements exchanged in compliance with the directions made, albeit the original dates appear to have been extended by agreement. Late disclosure was made on behalf of the Defendants as recently as 3 October 2024, a matter of days before the trial. Furthermore, there were references during the oral evidence of Mr Hasan to the alleged existence of many more documents which he claimed would substantiate the evidence he was giving, with particular reference to two matters: his relationship with Mr Shaikh, and Mr Shaikh’s alleged plans to transfer property in his ownership to Mr Hasan. No further disclosure was made, nor was any application made to rely on or adduce any further documents. It is possible therefore that there was a significant failure on the part of at least Mr Hasan to disclose documents which it was reasonable to suppose contained information which enabled him to advance his own case or to damage that of any other party. Or it is possible that there were no such documents, and Mr Hasan was not telling the truth when he said there were. It is simply not possible to tell which of those is correct. Witness statements – lack of certification

[7]As regards witness statements, whilst I will comment on the written and oral testimony of individual witnesses in due course, as a general problem each side failed to comply with the certification requirements of Practice Direction 57AC. Mr Deeljur, Counsel for Ms Khatun, told me he had been aware of the breach from his trial preparation, but – on the basis the Defendants were also in breach - had decided to “wait and see” how the problem would be addressed at trial. At trial, there was little to be done beyond requiring the parties to provide belated certificates in respect of each witness statement. Whilst I required that the meaning of the certificates be properly explained to each witness before adding a signature (which is necessary under Practice Direction 57AC in any event), it was evident from the oral evidence of some witnesses that they had not properly reviewed their written evidence and that the formal certification carried little or no weight. That has the result of reducing the weight I am able to give to any controversial matter contained in the witnesses’ statements which is not supported by reliable corroborative witness evidence, or relevant contemporaneous documents, or inherent probability. Expert evidence

[8]The situation regarding expert evidence is even less satisfactory. As part of the directions made following the CCMC permission had been given to Ms Khatun to rely on the expert report of Dr Myers on the issue of handwriting. Her report had already been served on the Defendants, so they were aware of its content and its negative (from their point of view) conclusion. No permission was sought or granted, then or at any later stage, by either party to call Dr Myers to give oral evidence at trial. At the CCMC permission was expressly granted to the parties to apply for further directions as to expert evidence. In their Directions Questionnaire completed prior to the CCMC the Defendants had indicated that they wished to use expert evidence at the trial and that the case was not suitable for a joint expert. In his witness statement dated 22 December 2022 Mr Pathania stated that he would be instructing an expert to produce a handwriting report once the original will had been retrieved from the probate registry.

[9]That never happened. Upon being “informally” (as he put it) instructed by the Defendants one week before the first day of the trial, Mr Evans KC appreciated the omission and advised that an expert report be obtained as matter of urgency. Such a report was obtained and an application was issued on 7 October 2024 (the judicial reading day prior to the first day of the hearing) to rely on the report. It was submitted on behalf of the Defendants that it was imperative that the Court consider both expert reports, and that both experts attend to be cross examined. Mr Evans had not appreciated until some way through his submissions that no permission had been granted for Dr Myers to give oral evidence at trial, and that the Claimant had no intention of calling her. Accordingly, at my invitation he made a further oral application for an order allowing the parties to call their respective experts to give evidence at the trial.

[10]The applications for permission to rely on an expert report, and for both experts to be called to give oral evidence, were refused, for the reasons I gave in an extempore judgment. To summarise, the Claimant had been unable in the twenty four hours since receiving the application to contact Dr Myers, and therefore could not establish her availability either to advise on the contents of the Defendants’ expert report or to attend trial. Neither was there sufficient time for the Claimant’s legal representatives themselves to deal with the new expert evidence. Mr Evans confirmed in terms that it was far too late to apply for an adjournment and that he was not doing so. The only reason advanced at trial for the Defendants’ failure to obtain the evidence of an expert was that it was an oversight of the solicitors previously representing the Defendants. It was suggested that the Defendants were themselves ignorant as to the requirements of preparing for trial; however, this submission runs contrary to the written evidence of Mr Pathania showing that he was well aware of the issue and of what needed to be done in order to instruct an expert, and moreover that he intended to do so.

[11]It was accepted by Mr Evans that the Defendants’ failure at an earlier stage in the proceedings to seek permission to rely on expert evidence and to call the experts to give evidence at trial was a serious one. He stated in terms that there was no excuse, reasonable or otherwise, for it. I drew counsels’ attention to Yess (A) Electrical Ltd v Warren

[2024] EWCA Civ 14

, a recent decision of the Court of Appeal on the issue of permission to adduce late evidence, in which the Court of Appeal held that a late application to rely on expert evidence was not a case requiring relief from sanctions but should be decided in line with the overriding objective. While no submissions were made relying on or addressing that decision specifically, Mr Evans submitted that that the correct test to apply to his application was the overriding objective.

[12]In the end, I concluded that the practical obstacles to calling the experts to give evidence, and the unfairness to the Claimant of having to deal with the Defendants’ expert evidence, such very short notice, were sufficiently substantial as to outweigh any unfairness to the Defendants by refusing the application. In those circumstances, and for reasons more fully elaborated in my extempore judgment, I refused permission. This resulted in the unsatisfactory position of the Court having the benefit of an expert report on behalf of one party only addressing an issue which has the potential to be highly relevant – namely, whether the signature on the Disputed Will is that of Mr Shaikh; and of that expert not giving oral evidence, with the result that her evidence would not be tested. Production of the original will

[13]After the trial, I became aware of a procedural matter on which I ought to have been addressed by Counsel. CPR Rule 57 applies inter alia to probate claims, which are defined to include a claim for a decree pronouncing for or against the validity of an alleged will. This is such a claim. CPR Rule 57.5 provides that any testamentary document of the deceased person in the possession or control of any party must be lodged with the court. Although the skeleton argument on behalf of Ms Khatun stated twice that the court should hold the original of the Disputed Will, it was conspicuous by its absence in the proceedings before me. Moreover, Dr Myers has formed her conclusions based on a copy of the Disputed Will, and had never subsequently been provided with the original.

[14]Of related relevance was the decision in Payne v Payne

[2018] EWCA Civ 985

, in which the Court of Appeal considered inter alia the importance of compliance with CPR Rule 57.5. The Court of Appeal also considered the question of whether an adjournment should be ordered(1) pending production of an original will, when its authenticity was contested, and

(2) to allow the attesting witnesses to give evidence.

[15]In view of the significance of the procedural requirement under CPR Rule 57.5 and of the guidance in Payne, I drew both to the attention of the parties’ legal representatives, and required(1) written submissions, limited to three pages, on CPR Rule 57.5 and Payne, indicating what each party invited me to do and any order I was invited to make; and

(2) a witness statement from each party, compliant with CPR Rule 57.5(3), which requires a party to describe any testamentary document of which he has knowledge, and if it is not in their possession or control to give details of the person in whose possession it is; and

(3) a witness statement from each instructing solicitor explaining what steps had been taken to procure the original will; why it had not been procured; if no steps had been taken the reasons why not; and the reasons why CPR Rule 57.5 had not been complied with.

[16]What has transpired (to summarise) is that the original of the Disputed Will had in fact been lodged in the Chancery Division as long ago as July 2022. Neither party had applied for any order for its release for the purposes of being provided to a handwriting expert or for inspection at trial. It appears the original was made available at the CCMC, which the parties through the legal representatives attending the CCMC must have known.

[17]In the light of the observations of the Court of appeal in Payne, I directed the parties to attend a hearing on 9 January 2025 at which the original of the Disputed Will could be inspected by me, and by the parties and their legal representatives, for the purpose of establishing whether there were any material features on the face of the original which had not appeared on the copies used at trial, and to which the parties wished to draw attention. At that hearing only one manifest discrepancy was noted. The original of the Disputed Will contained six pages, including a final attestation page containing the usual declaration and the signatures of the attesting witnesses, whereas the copy used for the purposes of the trial contained only five pages, omitting the attestation page. This meant that Ms Khatun could no longer rely on submissions that had previously been made on the significance of there being (as was thought) no attestation clause.

[18]In his written submissions dated 8 November 2024 Mr Evans on behalf of the Defendants indicated that the Defendants now sought an adjournment to allow time for them to instruct a handwriting expert, and for both parties to call their respective experts to give evidence orally. Mr Evans maintained that application at the hearing on 9 January 2025, notwithstanding he had submitted at the outset of the trial that it was by then too late for an adjournment. He relied on Payne as in effect requiring that an adjournment be granted, and sought directions to allow the original of the Disputed Will to be given to the parties’ respective experts, and a timetable by which the experts would produce reports which would then be tested at a further hearing confined to “handwriting issues”. I indicated on 9 January 2025 that I refused the application for an adjournment and that I would give reasons in this judgment. I do so now.

[19]In Payne the Court of Appeal allowed an appeal from a decision of the County Court to pronounce against a will without inspecting the original, and refusing to allow late evidence from those attesting the will. In issue was the question whether the attesting witnesses, who had signed their names in block capitals, could be said to have complied with the requirement to “sign” the will pursuant to section 9 of the amended Wills Act 1837. It was obvious from visual inspection that the photocopy of the will failed to reproduce complete pages of the original document. Upon subsequent production of the original it became clear that the notes to the printed form of will used related back to the section 9 of the Wills Act 1837 prior to its amendment by the Administration of Justice Act 1982. This was material to the issue of statutory compliance.

[20]The Court of Appeal held that the decision to proceed without inspection of the original will was a serious procedural irregularity. Henderson LJ, with whom Flaux LJ agreed, said this: “45. A further very relevant consideration, which the judge appears to have completely ignored, is the strong public interest in valid testamentary dispositions being upheld. This public interest is reflected in many of the special procedural provisions which apply to contested probate proceedings, including those relating to the lodging in court of testamentary documents, and the early provision of written evidence about them, to which I have already referred. … …

[48]If the judge had had these considerations in mind, as well as the unsatisfactory procedural history which I have related, she ought in my judgement to have concluded that she could not safely pronounce against the 1998 Will without it being produced to the court, and without an opportunity for evidence to be given by at least one of the attesting witnesses. …

[49]In the light of these principles, the judge was in my respectful opinion wrong to pronounce against the 1998 Will on the basis of the evidence as it stood at the conclusion of the trial. She should have appreciated that the issue could not be justly resolved without production of the 1998 Will itself and without hearing evidence from at least one of the attesting witnesses. This would have necessitated an adjournment, but there are occasions, of which this was one, when an adjournment is the price which has to be paid if justice is to be done. It also follows, in my view, that Mrs Payne’s applicaiton to adduce fresh evidence on her appeal must be granted, because without the evidence of Mr Gordon the court is unable to pronounce on the validity of the [will] and the interests of justice require that it should be admited to probate if it was validly executed.”

[21]As I read the judgment, what was exercising the Court of Appeal were the lack of the original will, and the lack of evidence from either attesting witness. It was those specific evidential deficiencies that it held ought to have been addressed at first instance, and which were required to be addressed before considering the substantive appeal against the decision to pronounce against the will (which appeal was allowed). The significance of those requirements is reflected in the provisions of CPR Part 57 (as referred to by Henderson LJ in detail at [45]); and the “long established rule that [an attesting] witness is treated as a witness of the court, whose duty it is to give to any party who asked for it an account of the circumstances in which the will was executed” (at [48]). These are necessary evidential requirements concerning the proving of a will, and they must be observed if at all possible.

[22]The situation in Payne is significantly different from the situation facing me. First, there was no indication from the copies of the will used during the trial that the photocopying process had truncated or otherwise failed to duplicate the entirety of the original pages. Second, once the original had been produced for inspection at my instigation, it became clear that a page was missing from the copy used at the trial. That deficiency has been addressed by Counsel, Mr Deeljur properly abandoning his submissions based on the lack of attestation clause. No other discrepancy between the copy used at trial and the original was apparent either to Counsel or to me. Thirdly, evidence had already been heard at trial from both attesting witnesses, both of whom had been duly cross examined.

[23]It follows that the reasons given in Payne for granting an adjournment for the twin purposes of obtaining the original will and admitting evidence from the attesting witnesses do not apply in the present case. Payne is authority for the proposition that a will should not be pronounced against while it remains possible to remedy either (and preferably both) of those deficiencies. The decision says nothing about the correct approach to applications to adjourn a trial for other reasons; nor does it come anywhere close to placing on the Court a duty to order an adjournment of its own volition, in order to remedy the failure of the Defendants to procure expert handwriting evidence, and the failure of both parties to obtain permission to call their respective experts to give oral evidence.

[24]Accordingly, the effect of Payne is that I was required to ensure that the original will was placed before the Court, which it was. Payne does not require me, and neither am I for any other reasons persuaded, to grant an adjournment for the purposes of allowing the parties to instruct handwriting experts to produce reports, and attend a hearing to give oral evidence. Mr Evans submits that the report of Dr Myers is “of much reduced validity” by reason of not having the original will available. That is a matter which Dr Myers refers to herself in her report, and which I can take into account when evaluating her evidence. Insofar as that factor undermines her conclusion, that will rebound upon the Claimant, and not the Defendants.

[25]Mr Evans further submits that the effect of paragraph 49 of the judgment in Payne amounts to “the imperative that the public interest in upholding testamentary dispositions trumps procedural irregularity and deficiency”. As I note above, the procedural irregularity in Payne related to the twin failures to inspect the original will and to admit evidence from the attesting witnesses. It is in my judgment wrong to view the failure to permit expert evidence to be adduced at the cost of an adjournment as a procedural irregularity in the context of pronouncing for or against a will. Whether or not to obtain and rely on expert evidence is a matter for the parties, subject always to the permission of the Court. The Court is not required to manage the preparation or presentation of the parties’ respective cases for them, much less waste court resources by ordering adjournments so that parties can attempt to improve their position in circumstances where they frankly accept there was no reason, much less any good reason, for their omission to do so. Whether or not to permit a late adjournment involves the exercise of the court’s case management powers, taking into account all relevant matters.

[26]Apart from the effect of Payne, which I have determined is not as Mr Evans contends, and its emphasis on the importance of upholding valid testamentary dispositions, no other reason was advanced in support of the application for an adjournment. I can see no other reason for granting an adjournment. In my judgment Mr Evans was right the first time round, when he made submissions in support of his application for an order admitting the Defendants’ expert report and calling both experts to give oral evidence: it was by then too late for any such adjournment; a fortiori far too late after the trial had been concluded. The law

[27]The parties largely agree on the applicable law subject to one issue concerning the burden of proof. Ms Khatun submits that the onus is on the party propounding the will to prove it. If that is correct, the onus will be on the Defendants to prove the Disputed Will on the balance of probabilities. The Defendants by contrast say that where a will is attested a rebuttable presumption arises that the will is valid. The presumption can only be displaced by the strongest of evidence, which effectively places the onus on Ms Khatun to satisfy the Court on the balance of probabilities that the Disputed Will is a forgery.

[28]The starting point is to establish that the Claimant has a sufficient interest to bring a claim. This was not contested and I find accordingly. The situation concerning validity is then governed by s. 9 of the Wills Act 1837 (as amended by s. 17 of the Administration of Justice Act 1982): “No will shall be valid unless –(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either – (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.” (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),

[29]A person seeking to propound a will must prove due execution of it. Where the authenticity of a will is challenged, the burden falls on the person seeking to uphold its validity: see Face v Cunningham [2020] EWHC (Ch) at [46], in which HHJ Hodge, sitting as a Judge of the High Court, determined that “where the forgery of a will is alleged, then the ultimate burden of proving that the will is not a forgery must rest on the party propounding the will as part of the formal requirements of proving that the will was duly executed by the testator and was fully witnessed”.

[30]This view was adopted by Deputy Master Bowles in Sangha v Sangha

[2021] EWHC 1599 (Ch)

at [130-131], in which he concluded that “where forgery or fabrication is raised the obligation on those propounding the will in question will be to negative that contention, as part of the process of establishing the validity and due execution of the will.” However, after a consideration of the authorities on the civil standard of proof where the allegation is one of serious wrongdoing, the Deputy Master went on at [136] “ … while the legal burden of proving each will rests upon the party propounding it, the inherent unlikelihood … that the will in question has been fabricated and forged has the effect, as it seems to me, that, absent the cogent evidence of fabrication and forgery required to make good that contention, the legal burden resting upon the proponent of the relevant will, to establish the authenticity of that will, is highly likely to be made good.”

[31]The Defendants rely on the (rebuttable) presumption that an apparently duly executed document was in fact executed in accordance with the provisions. The law was considered in Sherrington v Sherrington

[2005] EWCA Civ 236

: Peter Gibson LJ, after referring to Wright v Rogers (1869) LR 1 PD 678 and Wright v Sanderson (1884) 9 PD 149, said “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 … 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.

[32]Equally, where the suspicion of the court is aroused, the onus falls back on to the propounder of the will to dispel the suspicion. This proposition was restated by Peter Gibson LJ in Fuller v Strum [2002] 1 WR 1097:

“What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given … suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be “vigilant and jealous” in examining the evidence in support of the will (Barry v Butlin (1838) 11 Moo PC 480 at p. 483 per Parke B.).”

[33]There might on the face of it seem to be a tension between the effect of the rebuttable presumption and the case law addressing the situation where suspicion is aroused about the authenticity of the will. In the former case, the strongest evidence is required to rebut the presumption. In the latter case, where suspicion is aroused, the entirety of the circumstances surrounding the execution of the purported will must be examined, and the party propounding it must prove the will on the balance of probabilities, in the light of all the circumstances. The tension can be explained by reference to the ambit or scope of each rule. The rebuttable presumption is concerned with compliance with statutory formalities, and the technical validity that such compliance confers on the instrument. By contrast the latter rule comes into play where the evidence causes doubt as to the genuineness of what appears otherwise to. be a validly execute testamentary disposition.

[34]Underlying both tests is the central question with which the court is concerned, namely, whether the will is valid and to be upheld accordingly. In the present case Ms Khatun takes no point on invalidity for the purposes of s. 9 of the Administration of Justice Act 1827. In that technical sense, the Disputed Will on its face satisfies the statutory requirements. What is alleged is that the Disputed Will is a forgery, executed not by Mr Shaikh but by others in order to divert Mr Shaikh’s estate to Mr Hasan. Thus my task is to consider whether the evidence taken as a whole is sufficient to arouse suspicion. If it is, then the burden of proving the Disputed Will on the balance of probabilities falls on the Defendants, and I must then consider whether the Defendants have discharged the burden. If not, then the rebuttable presumption comes into play and I will need to consider whether there is sufficiently strong evidence to rebut it. Factual background

[35]Mr Shaikh was born on 13 April 1956 and arrived in this country in around 1992, having been a practising lawyer in the Supreme Court of Bangladesh. He was called to the English bar in late November 2008 (the evidence of his brother Mr Zaman was that it was around November 2009, but the name Monir Jaman Shaikh appears in the Times record of Calls to the Bar on 1 December 2008). In December 2013 Mr Shaikh became a practising solicitor in the United Kingdom. Together with another partner he set up his own firm, PGA Solicitors (PGA), of which he became the sole owner in 2016, and remained the principal until his death on 7 April 2020.

[36]During his time in the United Kingdon, Mr Shaikh acquired four properties (the Properties), as identified in the Disputed Will, comprising 47 Cumberland Road, E13 (Number 47), 2 flats in Tilbury, East London (the Flats), and a hotel in Blackpool (the Hotel). Mr Hasan’s evidence is that these properties were all mortgaged and that Mr Shaikh was in the years preceding his death looking to remortgage them. There is a suggestion that Mr Shaikh was encountering a degree of financial pressure, though neither the source nor extent of that pressure is any further evidenced. It appears that as part of the proposed refinancing Mr Shaikh contemplated obtaining a buy to let mortgage in respect of Number 47, in circumstances I will explore in more detail in due course.

[37]Mr Shaikh is said to have had significant health problems, including heart issues, diabetes, asthma, and kidney problems. He was admitted to hospital on 26 March 2020, the first day of the first national lockdown following the outbreak of the pandemic in the United Kingdom. He arrived at hospital by ambulance, evidently unaccompanied. It is not clear whether he was admitted because he had already contracted Covid, or whether he contracted it whilst in hospital. He was at some stage put on life support and sadly died on 7 April 2020, with multiple organ failure and Covid-19 listed as the two primary causes of death, and chronic kidney disease and hypertension identified as secondary causes on the death certificate registered on 8 April 2020. There is some suggestion that in the years before his death he had a girlfriend or a partner; this was not explored and does not appear to be of relevance to any of the issues to be determined.

[38]Ms Khatun is Mr Shaikh’s only child from his first marriage, which ended in divorce in or around 1985. Ms Khatun gave oral evidence (contrary to that of her own witness statement, which places her arrival earlier) that she came to England from Bangladesh in 2002 when she married Mr Rahman. Together they had three children, who were at the time of the trial aged 18, 13 and 8 respectively. Mr Rahman was diagnosed with cancer in 2011 and sadly died on 12 March 2021.

[39]I turn now to consider the witnesses of fact. Claimant’s Witnesses Ms Khatun

[40]There were aspects of Ms Khatun’s witness statement that were patently inaccurate, and her oral evidence was at times inconsistent with her witness statement. For example, in her witness statement she said that she lived with her father between 1977 and 2000. However it is accepted that her father came to England in 1994; she did not arrive in the United Kingdom until 2002. When asked under cross examination, she appeared to have no recollection or awareness of what her witness statement said, but confirmed that she came to this country in 2002. In a similar vein, the last sentence of her witness statement read “I also believe the defendant abused the court process by not giving me any notice related”. She was unable to explain in oral evidence what she meant by this mystifying sentence, and accepted that she was assisted in its drafting by her late husband and her daughter.

[41]The anomalies shed little light on the issues, but they demonstrate at the least a degree of carelessness in the preparation of her witness statement, or appreciation of its significance. The fact that others assisted in its drafting heavily undermines its reliability. In the face of this, taken together with the PD57A certification debacle to which I have already alluded, my approach is to give little weight to the contents of Ms Khatun’s witness statement where they are in issue or controversial, and to treat her oral testimony as her evidence, whilst being cautious about giving that evidence any weight unless it was supported either by other reliable witness evidence or by contemporaneous documents, or is inherently probable, or unchallenged.

[42]Mrs Khatun gave evidence of a fond and close relationship with her father. She said she exchanged WhatsApp messages with him though she did not disclose any such exchanges. He gave birthday cards to her children, aged 18, 16 and 8 at the time of the trial. They holidayed on multiple occasions at the Hotel in Blackpool in December, the last time in 2018.

[43]She was aware that her father had had kidney problems in 1992 and in the years before he died, but not what treatment he was getting. She suggested that her father’s failure to discuss his treatment was a result of his desire to shield her from further problems, knowing that her husband, Mr Rahman, was facing a terminal cancer diagnosis. She was aware that Mr Shaikh had blood pressure problems and also that he suffered from diabetes, but he did not disclose to her that he sometimes took insulin, a fact which was revealed to Ms Khatun by a person she identified as her father’s carer, who she said had lived with him for a long time at Number 47.

[44]Ms Khatun was aware that her father had gone into hospital in late March 2020, but was unable to visit him, because her husband was very vulnerable and so they were maintaining strict social distancing. She later became aware that her father had named Mr Hasan as his next of kin on the hospital admissions form, and believes that was because his father knew that she and her husband could not visit him on account of the risk to Mr Rahman. She said she had called the hospital for updates but could not call her father direct, since he was on life support and anyway his phone battery had run out. She says, and this evidence was not challenged, that she was the first person the hospital called after Mr Shaikh died. Following his death she and her husband arranged and paid for the funeral. She said Mr Hasan was invited to attend the funeral notwithstanding the limited number of people that were at that time permitted, but he declined.

[45]She was prior to her father’s death largely unaware of the existence of Mr Hasan and certainly unaware of any particular closeness between him and her father. In around October 2019 her father had given her a copy of a tenancy agreement naming Mr Hasan as the tenant of Number 47, and she believes Mr Hasan started living at Number 47 about a month before the outbreak of Covid in March 2020. Her father told her that he wanted to remortgage Number 47 and that is why he granted what purported to be a tenancy of the whole house to Mr Hasan.

[46]She naturally had no personal knowledge of the events which are claimed by the Defendants to have led to the execution of the Disputed Will: none of their accounts suggests that she was even indirectly involved. Matters between Ms Khatun and Mr Hasan became antagonistic following her discovery on the day of her father’s funeral that he was living at Number 47.

[47]Through J Stifford solicitors she applied for a Letter of Administration in the belief that her father had made no will. That application was made on 20 April 2020. I will examine the evidence of what happened thereafter in further detail when I come to consider the circumstances in which Mr Hasan says he became aware of the Disputed Will and its contents. Mr Zaman

[48]Mr Zaman was the younger brother of Mr Shaikh. He gave evidence that he had never seen Mr Hasan, and that Mr Shaikh has never discussed making a will with Mr Zaman, or told him that he had made one. He said he was shocked by the terms of the Disputed Will. He also said that Mr Shaikh had no underlying health conditions, and that he used J Stifford Solicitors for all his legal work.

[49]Mr Zaman’s evidence was at times confused, and at times inconsistent. For example, he said in cross examination first that it was Mr Shaikh who retained the use of one room in Number 47 after Mr Hasan went into occupation of it; and then that it was Mr Hasan who was let one room in Number 47. He said he knew of no underlying health problems suffered by Mr Shaikh but then accepted in cross examination that he was aware that Mr Shaikh suffered from heart problems and had suffered from kidney problems at least in the past. The main thrust of his evidence was to emphasise that Mr Shaikh enjoyed a close relationship with Ms Khatun and her family, and to express his surprise at the idea that Mr Shaikh would have executed a will in favour of Mr Hasan, whom he said he had never known to be “the nephew of my brother”. The fact that while living with him Mr Shaikh had not told him that he, Mr Shaikh, was having health problems somewhat undermines the suggestion that he was so close to Mr Shaikh that he could expect to have known all the details had Mr Shaikh in fact executed a will. His proffered opinion that the Disputed Will was in fact forged by Mr Hasan suggests his view is far from objective and independent. All in all, I found his evidence to be of negligible relevance to the issues. Mr Hussain

[50]Mr Mohammed Hussain has worked as a fee earner in Mr Shaikh’s legal firm (PGA) since March 2015. He worked closely with Mr Shaikh, and says that Mr Shaikh never mentioned to him that Mr Shaikh had executed a will. He gives evidence that he and the majority of his colleagues would address Mr Shaikh as “Uncle”. He confirmed when giving oral evidence that he had seen Mr Shaikh some two months before the outbreak of the pandemic, when he visited him at Number 47, and that he had also seen Mr Hasan there at that time, He thought Mr Hasan was living there at that time. Although he produced nine specimen signatures that he confirmed to be those of Mr Shaikh, none of these had been provided to Dr Myers before she produced her report (or since). His evidence is largely tangential to the issues in the case. He also offers his opinion that the signature on the Disputed Will does not match the signature of Mr Shaikh with which he was very familiar. Again, that undermines his independence. Mr Pandit

[51]Mr Tapan Pandit, a qualified solicitor who is now primarily a property investor, became friendly with Mr Shaikh in 1993/4. After losing touch for a few years they resumed their friendship in 2001 after a chance meeting. Mr Pandit says he was Mr Shaik’s closest friend, and Mr Shaikh told him everything. Mr Pandit had been intimately bound up in Mr Shaikh’s progression both in terms of gaining his legal qualifications and setting up PGA, and in terms of encouraging him to raise the finance to purchase several properties, including the Hotel, which he initially co-owned with Mr Shaikh until the latter transferred his share to Mr Shaikh in 2013; and the Flats. His evidence is that Mr Shaikh came to him regularly to discuss his business affairs amongst other things and seek advice. He described himself as knowing Mr Shaikh “A to Z”, and was adamant that Mr Shaikh would have told him had he intended to execute a will. His evidence was that Mr Shaikh was “a good wise person who never made a major decision without discussing it with me first”.

[52]He also gives evidence about how Mr Shaikh came to grant a tenancy of Number 47 to Mr Hasan, saying that it was Mr Shaikh’s ultimate goal to move to one of the Flats, and he wanted to let out Number 47 to Mr Hasan, who previously had had been Mr Shaikh’s lodger in one of the rooms in Number 47. Mr Shaikh was apparently uncertain as to whether Mr Hasan could afford to cover the rent for the whole house, and Mr Pandit advised him to grant him a six-month assured shorthold tenancy with a view to seeing if he could keep up the payments over that initial period. He reports seeing Mr Hasan once or twice in the PGA office, and as he understood it Mr Hasan was supplying road traffic accident cases on a commission basis to the firm.

[53]Of considerable significance is the fact that Mr Pandit says that he spent the evening of 19 September 2019, the date of the alleged execution of the Disputed Will, with Mr Shaikh, whom he met “after the office” and stayed with until midnight going through a long discussion about Mr Shaikh’s financial affairs. That is the same evening on which the Defendants claim the Disputed Will was executed by Mr Shaikh. I shall examine the significance of that evidence in more detail in due course. Overall, Mr Pandit’s evidence is of some significance in that he knew Mr Shaikh personally and his business affairs in some detail. He gave oral evidence in a straightforward manner. However, his view that Mr Shaikh would have told him had he executed a will that evening is speculative at best. Many people choose not to disclose the existence and contents of their testamentary dispositions and I attach no evidential weight to speculation of this sort. Mr Islam

[54]Mr Islam is a solicitor who was from the same Bangladeshi background as Mr Shaikh and had what he described as a very good close relationship. His office used to be within 40m of the PGA office and since 2018 he had met Mr Shaikh often and had tea and coffee with him. He said he met with Mr Shaikh the very late evening of 16 March 2020 after they both appeared on a show broadcast by a TV channel called Channel S. Mr Islam’s evidence was that after the show he spoke with Mr Shaikh for about 20 minutes. During the conversation they discussed Mr Rahman’s health in the light of the unfolding Covid-19 situation, Mr Islam advising Mr Shaikh not to let Mr Rahman go out since the latter was very vulnerable as a result of his cancer treatment. Mr Shaikh was distressed by that situation, and in particular by the prospect of his grandchildren losing their father. Mr Shaikh told him at that point that in case of Mr Rahman’s death, Mr Shaikh’s property were “all for them”, being a reference to Ms Khatun and her children. Mr Shaikh was distressed because, although he would be able to provide for his grandchildren materially, they would be without “fatherly affection”.

[55]Mr Islam’s evidence was clear and coherent. He was asked about but was not seriously challenged on his account of the conversation he had with Mr Shaikh after their joint appearance on the television show on 20 March 2020. That conversation will be one piece of evidence I have to weigh in the balance when coming to consider the issue of the authenticity of the Disputed Will. Whilst noting that his evidence on that score was not challenged, I also bear in mind that it cannot be corroborated, and that even if true it represents what Mr Shaikh told Mr Islam on that occasion. It does not necessarily follow that Mr Shaikh was being completely truthful himself when he made those statements. Defendant’s witnesses Mr Siddiqui

[56]Mr Siddiqui was a colleague of Mr Shaikh, working at PGA since 2015, and becoming a partner along with Mr Shaikh in around November 2016 when all the other partners left PGA. He describes Ms Hasan as very close to Mr Shaikh and says he knew that Mr Hasan and Mr Shaikh had various dealings between them, including financial dealings. If ever Mr Shaikh could not be located, he always ended up calling Mr Hasan to find out where he was. He gives evidence of a fight between Mr Shaikh and Mr Rahman in mid-2018, which led to what he says was a permanent rift, and says that from around that time Mr Shaikh also started to avoid Ms Khatun and his grandchildren. He gives evidence of a financial issue between Mr Hasan and Mr Shaikh, which Mr Siddiqui encouraged Mr Shaikh to resolve. Mr Shaikh responded that “he would take care of his nephew”, a reference to Mr Hasan. Mr Siddiqui gave his evidence carefully and neutrally. However, he gave no evidence relevant to the central issues concerning the drafting and execution of the Disputed Will. Mr Hasan

[57]When questioned on the inconsistency between his witness statement in which he challenges Ms Khatun’s claim to be Mr Shaikh’s daughter, and what he knew to be the case from what was stated in the Disputed Will, Mr Hasan said that “whatever uncle told me I put in the statement”. He was not asked and did not volunteer the name of the person to whom he was referring as “uncle”, though it seems likely to have been Mr Pathania. Clearly that admission, made apparently without any sense of its gravity or significance, undermines the reliability of Mr Hasan’s written evidence: it bespeaks a failure to understand the purpose and status of written evidence, and at the very least a carelessness as to the truth and accuracy of the evidence he was prepared to put before the court. As with Ms Khatun, unless his written evidence is corroborated by reference to contemporaneous documents or by reliable independent witness evidence, or is inherently probable, I will treat it with considerable caution.

[58]Mr Hasan gives evidence as to the nature of his relationship with Mr Shaikh, and the business restructuring plans Mr Shaikh was implementing. The tenor of his evidence is that over time he became very close indeed to Mr Shaikh, who treated him like a close relative, and right-hand man, and who intended that all his properties were to be made over to Mr Hasan. They had first met in 2015 or 2016. Mr Hasan would provide cases involving road traffic accidents to PGA and he himself worked on those cases as a case worker. His remuneration was a percentage of the revenue. He also trained staff at PGA in case management. He had several other business interests: he managed a car hire company, had his own IT business, worked as an agent with Virgin Airlines, and rented cars to Uber drivers amongst others. He says that in around 2018 he stopped providing cases to PGA, and Mr Shaikh joined him in his IT business and a construction business he ran. Mr Hasan used the PGA office address for his own businesses, and paid a fee for its use.

[59]At some stage Mr Hasan moved into Number 47. He says he occupied the ground floor with his wife, who was pregnant at the time, and Mr Shaikh occupied the top floor, with both of them sharing the downstairs kitchen. There is no documentation evidencing the date on which he moved in, which he claims was in November 2019. By contrast it was suggested on behalf of Ms Khatun that he moved in in mid to late February. It remains Mr Hasan’s pleaded case that he shared occupation of Number 47 with Mr Shaikh who occupied the first floor with “his girlfriend”, Mr Hasan occupying a room on the ground floor with his wife, and the kitchen and living areas being shared.

[60]Mr Hasan said that Mr Shaikh had for some time been looking to reorganise his finances. He had multiple mortgages across his property portfolio and the debt was becoming difficult to service. Mr Shaikh and Mr Hasan executed a tenancy agreement dated 1 November 2019 which on its face relates to the whole of Number 47, for a term of twelve months, at a monthly rent of £1980. The tenancy agreement records “rent paid” as £3,960, which equates to twice the monthly rent. Shortly before trial Mr Hasan made late supplemental disclosure of a number of WhatsApp messages passing between him and Mr Shaikh. The first was on 1 January 2020, in which Mr Shaikh sends bank account details together with the figure “£1980”. The next morning a further message reads:

“You didn’t transfer the money. I could have come and give [sic] you the money. Now I will be delayed and in trouble”, and a second message “You are reading my message but not answering call. My urgency is not your urgency anyway, AND you have every right to use your phones as you please! ALSO you have your every right to breach your own promise no matter it affects others! Thank you for your favour”

. Mr Hasan then sent Mr Shaikh a screenshot of a successful transaction, showing the transfer of £1980 from Mr Hasan’s account to Mr Shaikh’s account, under the reference “December Rent”.

[61]Mr Hasan’s evidence is that Mr Shaikh had told him that he, Mr Shaikh, needed to produce a tenancy agreement and to evidence the payment of rent for the purposes of satisfying the funder to whom Mr Shaikh had made an application to remortgage Number 47; and that when the new mortgage was granted Mr Shaikh would give Mr Hasan the money for a deposit to buy Number 47 on a 35 year mortgage, a term which Mr Shaikh could not himself achieve (presumably precluded by his age). In other words, it was necessary in order to obtain the refinancing sought by Mr Shaikh to show that Number 47 was tenanted and the rent was being paid at the level of £1980 per month. Mr Hasan said that that was the sole purpose of entering into the tenancy agreement: when he moved in Mr Shaikh was not actually asking or expecting him to pay any rent (although there were occasions when he asked for money from Mr Hasan when it was needed “on an urgent basis”). This seems consistent with the message from Mr Shaikh to Mr Hasan saying “I could have come and give you the money”, suggesting that it did not matter from whom the cash actually originated, so long as it could be shown as having been transferred from Mr Hasan’s account to Mr Shaikh’s.

[62]So the effect of Mr Hasan’s evidence on the issue of his occupation of Number 47 seems to be that he did live there with Mr Shaikh, occupying the ground floor at least some of the time; that the grant of the tenancy, and Mr Hasan’s payment of the equivalent of one month’s rent, was a device to persuade a mortgage company to grant a further mortgage secured on Number 47; and that this was part of plan in which Mr Shaikh would settle his debts and transfer title to Number 47 (and subsequently other properties) to Mr Hasan. This is important, as I understand Mr Hasan’s case, because it demonstrates how close Mr Hasan and Mr Shaikh were, and provides part of the context explaining why Mr Shaikh left his entire estate, comprising principally his properties, to Mr Hasan. It was Mr Hasan’s written evidence that this all took place because of Mr Shaikh’s ill health in 2019 and that he was “already contemplating his death”. Mr Hasan says that Mr Shaikh informed Mr Hasan that if he were to die before completing the mortgage and transferring the properties to him Mr Hassan did not need to worry as he had made other arrangements for him. At that time, Mr Hasan says he has no idea what those other arrangements were.

[63]Mr Hasan knew nothing of the Disputed Will until some time in May when Mr Pathania knocked on his door and showed it to him. It is Mr Hasan’s evidence that he had never met Mr Pathania, executor appointed under the Disputed Will and one of two witnesses to it, nor Mr Alam, the other witness, prior to Mr Pathania arriving at Number 47 to tell him that he was the sole beneficiary of Mr Shaikh’s estate pursuant to the Disputed Will. Until then, Mr Hasan was wholly ignorant of its existence, its drafting, its execution, and its contents. The day after Mr Pathania told Mr Hasan about the Disputed Will, Mr Hasan attended Mr Pathania’s office, where Mr Pathania showed him the Disputed Will.

[64]Subsequently there was a seemingly bitter dispute between Mr Hasan and Ms Khatun and her husband which centred on occupation of Number 47. Competing accounts were given as to what took place when Ms Khatun and Mr Rahman, with their children, entered Number 47 and according to Mr Hasan in effect attempted to take up occupation of it. Police were called on several occasions and it seems that eventually Ms Khatun and her family moved out. Although demonstrating a deep level of antagonism between the parties, in my judgment these events do not help to shed any light on the authenticity of the Disputed Will. Neither were they explored nor evidenced in sufficient detail to assist in making more general inferences as to the individuals’ reliability or credibility. Mr Pathania

[65]Mr Pathania had known Mr Shaikh since 2008 and the two were close friends, who used to meet after office hours for coffee to discuss life in general. He was formerly a solicitor but was struck off in 2010. He gave evidence in a confident and robust manner. There are discrepancies in his evidence, and between his evidence and the contemporaneous documentation, which I explore in further detail later in this judgment. Mr Alum

[66]Mr Alum first met Mr Shaikh in 2012 or 2013 at a wedding. Mr Shaikh asked Mr Alam if he knew of any firm who might employ Mr Shaikh as a paralegal. They kept in touch after that, Mr Shaikh visiting Mr Alam on and off for chats and coffee. Subsequently Mr Shaikh asked for Mr Alam’s assistance in drafting statements and skeleton arguments for immigration matters, for which Mr Shaikh paid Mr Alam. Mr Alam had seldom been to Mr Shaikh’s office before Mr Shaikh asked him to go to his office in September 2019 to discuss Mr Shaikh making a will. Mr Alam gave his evidence confidently and neutrally. The discrepancies I go on to identify in Mr Pathania’s evidence do not for the most part involve Mr Alum’s direct evidence. Nonetheless for obvious reasons their evidence must stand or fall together. The drafting, execution, and revealing of the Disputed Will

[67]I turn now to explore in detail the evidence of Mr Pathania and Mr Alam as to the circumstances in which the Disputed Will came to be executed, and of them and Mr Hasan as to how he was notified of the existence and contents of the Disputed Will. The narrative emerging from their evidence is as follows. (My recitation of their account does not indicate that I make findings to the like effect.)

[68]Over the years Mr Pathania and Mr Shaikh had had general discussions regarding the idea of making their respective wills. One late evening in late August or early September 2019 Mr Pathania came to Mr Shaikh’s office at Mr Shaikh’s request to review Mr Shaikh’s initial drafting of the Disputed Will. Mr Pathania says he made some changes (clarified in oral evidence as confined to correcting some errors of spelling) and was not at that point told that he was to be appointed as executor.

[69]At a second meeting, in the week before 19 September 2019, Mr Shaikh told him that he was to be executor as well as a witness, and introduced him to Mr Alam, a long-standing friend of Mr Shaikh whom nonetheless Mr Pathania had not previously met, who was to be the second witness. On 19 September 2019 he was asked to go back to PGA’s offices, where, after reviewing the final draft, Mr Shaikh printed the Disputed Will, reiterated his intentions regarding Mr Hasan being the sole beneficiary, and Mr Pathania being the executor, and signed it on every page. Mr Pathania and Mr Alam then also signed every page, including the final attestation page. Mr Shaikh kept a copy, and Mr Alam was given a copy to hold. At Mr Shaikh’s request Mr Pathania then took home the signed original document and stored it in a shoebox on top of the wardrobe, where he says he stores all important documents such as his passport, wedding photos and degree certificate.

[70]After he was told of Mr Shaikh’s death, some time in May 2020, Mr Pathania contacted Mr Alam who after making some enquiries confirmed to Mr Pathania that Mr Shaikh had indeed died. Mr Pathania told Mr Alam that they needed to contact Mr Hasan to inform him that he was the sole beneficiary of Mr Shaikh’s estate. Mr Pathania then took some time to retrieve the Disputed Will, he says because he was at that point going through a divorce and was no longer living at the marital home, where the Disputed Will had been stored. When he was able to arrange entry to his house, he could not remember where he had stored the Disputed Will and could not locate it. Having subsequently remembered where he had stored the Will, he was on a second visit able to retrieve it.

[71]The very next evening he drove to Number 47. He knew that Mr Hasan lived there because Mr Shaikh had told him that Mr Hasan lived with him. He informed Mr Hasan that he was the sole beneficiary of Mr Shaikh’s estate. Mr Pathania reports that Mr Hasan “was rather surprised and could not believe if that was true”. He said Mr Hasan told him that he was being evicted from Number 47 by Ms Khatun who was claiming that Mr Shaikh died intestate, and that she had applied for and obtained a Letter of Administration and that Number 47 now belonged to her.

[72]Mr Hasan went to Mr Pathania’s office the next day. He told Mr Pathania that he had that morning written informing the Claimant’s solicitors of the existence of a will executed by Mr Shaikh. Mr Pathania gave Mr Hasan a copy of the Disputed Will, and told him that proceedings had to be initiated immediately and probate obtained, and that it would be necessary to revoke the Letter of Administration obtained by Ms Khatun and Mr Rahman on 18 May 2020.

[73]On 14 December 2020 a grant of probate was made in favour of Mr Hasan, with Mr Pathania as executor, and on 4 February 2022 Ms Khatun received a notice of revocation of the Letter of Administration. Mr Pathania gave evidence at trial that since the claim has been brought, he has done nothing further regarding the administration of the estate, other than receive rental income into a bank account and perform necessary repairs to the UK properties in Mr Shaikh’s ownership at his death. The Disputed Will

[74]The Disputed Will appears to be a hybrid of precedent clauses (using correct spelling and appropriate legal language) and custom provisions inserted by the author, in general using less legalistic language and containing some spelling mistakes. I set out the relevant provisions here.(1) The introductory clause identifies Mr Shaikh as residing at Number 47.

(2) Clause 3 states “I have a daughter but have no relationship with her and I live [sic] nothing to her.”.

(3) Clause 5 appoints Mr Pathania as the sole executor.

(4) By clause 7 the executor is directed to distribute “all the residue of my estate to Shamim Hasan (DOB: 08/01/1988) …. if he survives me for thirty (30) full days, for his own use absolutely.”.

(5) Clause 9 is headed “Wipeout Provision”, which directed that the residue of the estate or the amount remaining thereof in England be given to Mr Hasan,and of all Mr Shaikh’s United Kingdom properties together with “all benefits of PGA Solicitors” were to be transferred to Mr Hasan. Those properties are listed by address and in one case by reference to a registered title number.

(6) Clause 10 directs that the residue of the estate or the amount remaining thereof in Bangladesh and Pakistan be given to Mr Hasan, and to transfer to Mr Hasan nine properties listed by deed number but otherwise unidentified.

(7) Clause 11 directs that all cash held in four United Kingdom bank accounts (identified by bank, sort code and account number) be given to Mr Hasan.

(8) An unnumbered paragraph states “I bequeath all my worldly belonging [sic] to my nephew Mr Hasan.”

(9) Clause 12 is headed “Individuals Omitted from Bequests: MOSAMMAT SAPNA [sic] KHATUN:” followed by “If I have omitted to leave property in this Will to the above named or provided them with zero shares of a bequest the failure to do so is intentional.”

[75]Although the bequests to Mr Hasan are framed in terms of the residue of Mr Shaikh’s estate, both in England and in Bangladesh and Pakistan, the Disputed Will made no primary bequests and so the effect, if the Disputed Will is authentic, would be to leave the entirety of Mr Shaikh’s estate to Mr Hasan.

[76]The Disputed Will as a whole does not present as the work of an accomplished lawyer. In addition to the minor spelling mistakes, it is an oddity to bequeath the residue of an estate when there has been no primary bequest in relation to which the remainder can be residuary. Paragraph 8, which directs the executor to distribute the residue of the estate, had a subclause a., but no further subclauses. It is not immediately apparent why the drafter felt the need to include clauses 9, 10, 11 and the following unnumbered paragraph, when clause 8 had already operated to bequeath the entire (residue of the) estate to Mr Hasan. Moreover, those provisions appear under the heading “Wipeout Provisions”, which is inapposite: the use of the term “Wipeout” in the context of wills is to provide an alternative legatee should the primary named legatee(s) not survive the testator. This is not what the drafting of the Disputed Will goes on to provide.

[77]An anomaly on which Ms Khatun placed particular reliance was the misspelling of her name (Sapna rather than Shapna). This was said to be an unlikely mistake for a father to make, and it was further suggested that the written form appearing in the Disputed Will (without the “h”) was “perhaps” closer to an Indian spelling than a Bangladeshi one, the implication being that such a mistake is more likely to have been made by Mr Pathania, whose origins lie closer to India than to Bangladesh, than by Mr Shaikh who had no Indian association or background.

[78]Lastly it was Ms Khatun’s case that Mr Shaikh had no properties, or other assets, in Pakistan. No evidence was produced by the Defendants to support the existence of any such properties.

[79]For the most part, I do not find these oddities and anomalies of assistance when considering the issue of the authenticity of the Disputed Will. There is no evidence that Mr Shaikh himself was familiar with law of succession, or the drafting of wills, nor even that he was an experienced or competent drafter of legal documents. There is no evidence as to whether the name “Shapna” was typically correctly spelt by Mr Shaikh on previous occasions, nor whether the alternative spellings were common or uncommon. The mere fact of these infelicities does not in my judgment provide evidence tending to show that the signatory to the Disputed Will was other than Mr Shaikh. They are, in my judgment equally consistent with each side’s case.

[80]It is otherwise with the reference to properties and assets of Mr Shaikh in Pakistan. No evidence was adduced by the Defendants to establish that Mr Shaikh had held assets in Pakistan. Neither is there any evidence of the Defendants taking any steps to establish what assets were held in Pakistan. This would be an inexplicable mistake for Mr Shaikh himself to have made, especially considering the evidence as to the time and care he had spent drafting the Disputed Will, according to the evidence of Mr Pathania and Mr Alam. This error is one which I take it into account when I come now to consider whether the totality of the evidence arouses suspicion that the Disputed Will may not be authentic. Suspicion

[81]The evidence of Mr Pathania and Mr Alam is first hand evidence of those claiming to have been directly involved in the drafting, witnessing and execution of the Disputed Will, and in its revelation following Mr Shaikh’s death. Mr Hasan says he had no knowledge of its existence prior to being visited by Mr Pathania in May 2020. He does however say that Mr Shaikh’s deciding to bequeath his entire estate to Mr Hasan is consistent with how Mr Shaikh had regarded and treated him, as a very close and trusted relative, and also with the plans that Mr Shaikh had been formulating to transfer his properties in the United Kingdom to Mr Hasan. Evidence is also given, by Mr Hasan and Mr Siddiqui, of a rift between Mr Shaikh and Ms Khatun, which is said to explain why she was not made a beneficiary of any part of her father’s estate.

[82]Notwithstanding those suggestions, in my judgment the circumstances surrounding the alleged execution of the Disputed Will are sufficient to arouse suspicion. This conclusion is based on a number of matters which individually are unusual, or unexplained, and which when taken together raise significant doubt in my mind that the Disputed Will is genuine.

[83]First, it is surprising that there are no documentary records whatsoever relating to the execution of the Disputed Will, or the attendance of Mr Pathania and Mr Alam at the PGA offices during August and September 2019 respectively. No related text messages, WhatsApp messages, letters or emails exist (or none have been disclosed). This is said to be because, notwithstanding Mr Shaikh did exchange WhatsApp messages and emails with some people including Ms Khatun and Mr Hasan, he did not communicate with Mr Alam and Mr Pathania by those means. Rather, the communication was always by telephone. No phone records have been produced to evidence the calls that (on this account) must have been made. Neither did any other witnesses confirm the attendance of Mr Pathania three times, and Mr Alam twice, at PGA’s offices at the meetings alleged to have been held there. It follows that their attendance at the three alleged meetings lacks any form of independent documentary or witness corroboration or support.

[84]Next, no reason has been suggested why Mr Shaikh would draft the will himself and entrust the holding of the original of the Disputed Will to Mr Pathania, when the (unchallenged) evidence was that he entrusted all his legal work to J Stifford solicitors. A further oddity is that, although he is said to have told Mr Hasan that if he, Mr Shaikh, were to die, Mr Hasan would receive the properties, he apparently did not inform Mr Hasan that he had executed a will to that effect.

[85]Next is the evidence of Mr Pathania that he stored the original of the Disputed Will in a shoebox on the top of this wardrobe, he says because that is where he kept his important documents such as his passport and degree certificate. But if he put it there for that reason, it is an oddity that when, on learning of Mr Shaikh’s death, he returned to retrieve it he could not remember where he had put it, allegedly then searched for it, but left without it, and only subsequently remembered its location, after which he made a second trip back to the house in which he was no longer living because of divorce proceedings.

[86]Mr Pathania also says that he needed to retrieve the will prior to contacting Mr Hasan because he would be “handicapped without the Will to visit Mr Hasan”. But he knew that Mr Alam, with whom he had spoken to confirm the death of Mr Shaikh, and whose phone number he had, had a copy of the Disputed Will. He also knew that Mr Shaikh had retained a copy of the Disputed Will. If the purpose of visiting Mr Hasan was to inform him that he was the beneficiary of Mr Shaikh’s estate, and if showing him the will was necessary for that purpose, then he could easily have obtained and taken a copy rather than the original and notified Mr Hasan much earlier than he did.

[87]Indeed, the claim that he was handicapped without the Disputed Will, and so needed the time to retrieve it, is in any event inconsistent with his own evidence (and that of Mr Hasan) that Mr Pathania did not take the Disputed Will with him when he visited Mr Hasan. On their evidence it was not until the next day, 19 May 2020, when Mr Hasan visited Mr Pathania at the latter’s office, that Mr Hasan was shown the Disputed Will. The suspicion is raised that the story concerning the difficulties facing Mr Pathania in retrieving the original of the Disputed Will was concocted to explain the otherwise inexplicable delay between Mr Pathania learning of Mr Shaikh’s death and Mr Hasan notifying J Stifford that he was the beneficiary of Mr Shaikh’s Estate.

[88]In relation to that notification, further inconsistencies arise in terms of timing. Mr Pathania’s evidence is that when he first visited Mr Hasan to tell him about the Disputed Will Mr Hasan told him that he was “being evicted from the house by Mr Shaikh’s daughter who claims that Mr Shaikh did not leave a Will as such she has applied and obtained a Letter of Administration and that the house now belongs to her”. This is information that came to Mr Hasan by a letter from J Stifford dated 18 May 2020. The letter did not in fact contain a threat to evict Mr Hasan but did contain the other information Mr Pathania refers to. Assuming that letter was sent by post (and there is no indication, nor has it been suggested, that it was sent by email or delivered by hand) it could not have arrived with Mr Hasan before 19 May 2020.

[89]On 19 May 2020, the presumed (and earliest possible) day of receipt of the 18 May 2020 letter, Mr Hasan wrote to J Stifford responding to the 18 May 2020 letter as follows:

“I write to confirm that Mr Monir Jaman Shaikh left Will to the respective Solicitors under my name. The Solicitors contacted me after passed away of Mr M J Shaikh. The Solicitors informed me that the probate work is might be delayed due to coronavirus situation.”

[90]Several points arise out of this letter. First, the timing does not add up. According to Mr Pathania, Mr Hasan told him when he visited him at the former’s office on 19 May 2020 that he had already sent the 19 May letter to J Stifford. Assuming the 19 May letter is correctly dated, it must have been written by return, since Mr Hasan would only have received it on the morning of 19 May 2020. Mr Pathania said that the visit to his office by Mr Hasan occurred the day after Mr Pathania had visited Mr Hasan to tell him about the Disputed Will. So Mr Pathania’s visit to Mr Hasan must have been on 18 May 2020. But at that initial visit Mr Pathania says that Mr Hasan told Mr Pathania of matters which he only learned about from the J Stifford 18 May letter, a letter which would not have arrived until 19 May 2020. The chronological evidence from Mr Pathania and Mr Hasan as to how matters unfolded is therefore inconsistent with what is revealed by the contemporaneous documentary evidence.

[91]It should be noted that this inconsistency only occurred to me when writing this judgment. It was not put to Mr Pathania or to Mr Hasan; neither was any reference made to it in oral or written submissions. I note it because it raises an unexplained inconsistency which contributes to the suspicion. However I am satisfied that I should have found that there was sufficient reason for suspicion even in the absence of this unexplained inconsistency.

[92]Secondly, in his letter of 19 May 2020 Mr Hasan refers to the Disputed Will being “left [by Mr Shaikh] to the respective Solicitors under my name. The respective Solicitors contacted me after passed away of Mr M J Shaikh.”. Mr Pathania is not a practising solicitor. He did not give evidence that he told Mr Hasan that he was a solicitor. The original of the Disputed Will is said by Mr Pathania to have been left with him not as Mr Shaikh’s solicitor but in his role as Executor. So it is an oddity that Mr Hasan should refer to Mr Pathania as “the respective Solicitors”.

[93]Equally odd is the fact that Mr Hasan would describe a wholly unexpected visit only the previous evening of Mr Pathania, bearing news that Mr Hasan was the sole beneficiary of Mr Shaikh’s estate, in the neutral terms “The Solicitors contacted me after passed away of Mr M J Shaikh”, language which gives no hint of what on Mr Hasan’s and Mr Parthania’s account was the fact that this information was only revealed to Mr Hasan the evening before he wrote this letter, and was a matter of great astonishment to him.

[94]Lastly it is somewhat surprising that Mr Hasan chose to answer the 18 May 2020 letter, even if it had arrived with him on the same day it was posted, on 19 May 2020 before he went to see Mr Pathania and before he had seen the Disputed Will, whether in original or copy form.

[95]To this list of oddities and inconsistencies I add the fact that the Disputed Will refers to properties held by Mr Shaikh in Pakistan, when there is no evidence that he held any properties in Pakistan, and Mr Khatun’s evidence is that he never had. This feature of the Disputed Will remains unexplained.

[96]I turn now to the final area of doubt, concerning the production of the original of the Disputed Will. There is no hard evidence before the Court as to when the original of the Disputed Will was lodged with the Probate Registry, though it has been suggested that it was sent to the Probate Registry in November 2020. Solicitors acting on behalf of the Claimant asked several times for a copy of the will in the days and weeks following receipt of Mr Hasan’s letter of 19 May 2020. By letter dated 23 June 2020, Maudud Solicitors wrote to J Stifford saying that they were instructed on behalf of the Defendants and that they “had been informed that there is an original Will of Mr … Shaikh”. Whilst it does not say so in terms, this suggests that the writer had not seen the Disputed Will either in original or copy form at that stage.

[97]By letter dated 2 July 2020, Edward Marhsall Solicitors, who appear by then to be acting for the Defendants in place of Maudud Solicitors, respond to further interim correspondence from J Stifford asking amongst other things for sight of a copy of the Disputed Will, saying “You are not [sic] aware that we cannot disclose you any copy of the will unless lodged with the court …. Just to let you know we DO have original copy of the will which you intend to challenge”.

[98]No first-hand evidence has been given that anyone at Edward Marshall had at that point seen the original Disputed Will, so the weight I can place on that statement is limited. At its highest this is the first evidence of anyone other than the Defendants and Mr Aslam seeing the original or indeed seeing a copy of the Disputed Will. If the Disputed Will was available from the date of Mr Shaikh’s death in the form of the copy retained by Mr Aslam, and from 17 May 2020 in the original (Mr Pathania says he recovered it from his marital home the day before he visited Mr Hasan), it is odd that it was not produced either to J Stifford, nor it would appear to Maudud Solicitors who were acting for the Defendants for a short period, at any point, and that the first (and then only hearsay) evidence of any independent party having sight of it is 2 July 2020. Onus on

Defendants

[99]All these matters are sufficient to arouse suspicions as to the authenticity of the Disputed Will. In those circumstances the onus falls on the Defendants to prove on the balance of probabilities that the Disputed Will is genuine. In my judgment they have failed to do this. In reaching this conclusion I start by taking into account all the matters to which I refer above as arousing the suspicion. With the discrepancies, oddities, and inconsistencies I have referred to above, the Defendants are already in a difficult position in relation to discharging the burden of proof.

[100]Beyond the matters arousing suspicion, there are other significant deficiencies in the evidence which undermines the Defendants’ case, fatally in my judgment. First and foremost is the lack of any contemporaneous documentary material to establish the matters on which they rely. I have already referred to the absence of phone records and similar to support the claim that Mr Shaikh called Mr Pathania and Mr Alam to arrange the meetings with them which allegedly led to the drafting and execution of the Disputed Will. Also absent are any computer records, hard drive analyses, cloud data or metadata to support the claim that Mr Shaikh drafted the Disputed Will on his computer. Neither was there any account of why such evidence was not available, or could not be harvested; nor of any steps taken to secure access to Mr Shaikh’s computer or any backup systems. Given such evidence could, if it existed, have been conclusively probative of the Defendants’ case, its absence is significant in terms of assessing whether the Defendants have discharged the burden of proof.

[101]Mr Hasan relies on what is alleged to be the closeness of his relationship with Mr Shaikh to explain why Mr Shaikh decided to bequeath his entire estate to him. But there has been scant production of the kinds of materials that would evidence such a relationship. It is clear that Mr Shaikh did communicate with him by WhatsApp since Mr Hasan disclosed some WhatsApp messages shortly before the trial, some of which I have already referred to. He claimed when giving evidence that he had many more such documents, and that those he disclosed had been disclosed late because he had only just been able to recover them from an old mobile phone. But no further documents were disclosed, and no application was made. Those that were produced go nowhere near to evidencing the very close relationship of which he spoke. They show that Mr Shaikh and Mr Hasan were concerned in early January 2020 to create evidence of a transfer of funds from Mr Hasan’s account to Mr Shaikh’s for the purpose it would seem of producing (bogus) evidence to a mortgage company that Number 47 was tenanted and bringing in a monthly rental of almost £2000.

[102]They also show that Mr Hasan assisted Mr Shaikh with issues with a professional website, and that there was a further transfer of £4500 on 8 January 2020, though what that relates to is not clear. There is then a gap until 21 January 2020 before any more messages pass and those relate to Mr Shaikh trying urgently to arrange to talk to or see Mr Hasan. There are a number of missed calls logged on 27 January 2020, followed by messages on 31 January 2020 relating to an overdue business rates demand from Tower Hamlets Council. There follow more quotidian messages, concerning clearing bins, going shopping, and printer cartridge replacement, at intervals of a few days apart, interspersed with missed voice calls, and certainly these evidence a degree of familiarity and inter-connection; but nothing in my judgment that elevates the messages out of the sphere of a close and broadly friendly working relationship into the realm of Mr Shaikh’s closest (quasi-) family member.

[103]Mr Hasan was at his least coherent when trying to explain how it was that the proposals for remortgaging Mr Shaikh’s properties signified, as he claimed, a close personal relationship consistent with an intention by Mr Shaikh that Mr Hasan should be the sole beneficiary under his will. As a preliminary point, Mr Hasan’s evidence was that the promise to transfer the properties to him was first made in 2017, only 1 – 2 years after he first met Mr Shaikh. The idea that at that point Mr Shaikh would have set up a scheme designed to bring such significant benefits to Mr Hasan on the basis of his personal regard for him is surprising and in my judgment inherently unlikely. Moreover, if such a scheme had been devised so long ago, it is conspicuous by the apparent failure to implement any part of it (other possibly than a remortgage of Number 47, or at least an application for the same) before Mr Shaikh died in April 2020. I say apparent failure because, apart from the tenancy agreement of Number 47, and the WhatsApp messages concerning the transfer of funds from Mr Hasan’s account to Mr Shaikh’s, no evidence was adduced of any transactions, offers, applications, correspondence, statements, or anything else associated with Mr Shaikh’s alleged attempts to restructure the financing of the Properties.

[104]As the scheme was explained by Mr Hasan, Mr Shaikh was overburdened with debt and was having difficulty servicing the mortgages on the properties (and possibly other debt) (as to neither of which there was any evidence). His plan was to rid himself of the debt by(1) remortgaging the properties,

(2) using part of the monies advanced to pay off the existing mortgage on each property; and

(3) giving the remainder of the monies advanced to Mr Hasan to use as a deposit to buy the properties in his own name with the help of a new mortgage which would then be his, Mr Hasan’s, responsibility. Mr Hasan, being younger, would qualify for a 35 year mortgage, something which Mr Shaikh at his age could not hope to obtain. Mr Evans attempted to explain in closing submissions that this indicated a relationship of some depth. What it demonstrates in my judgment is a relationship of joint scheming, in particular in relation to the “tenancy” of Number 47, with evidence tending to show that the intention was to mislead the mortgagor. Mr Evans frankly submitted that there were elements of the mortgage transaction which “may be questionable”, and confirmed that Mr Hasan’s evidence was that the tenancy was in effect a sham. Indeed it is Mr Hasan’s case that the very fact that the tenancy agreement was a sham is in some way consistent with or evidence of the warm, deep, familial relationship which explains Mr Shaikh’s testamentary decisions. Since the tenancy was a sham, Mr Hasan was not a tenant but a quasi-family member, and his living in Number 47 was not commercial but in essence personal.

[105]There is a dispute about whether Mr Hasan commenced occupation in November 2019 or January 2020. For my part I cannot see that it matters. Mr Hasan clearly started to share Number 47 with Mr Shaikh at some point in the few months before Mr Shaikh’s death. It is possible he did so as part of the remortgaging scheme; but without any corroborative evidence of that scheme it is impossible to say more than that. And if that is the case, it is not clear evidence of a close personal relationship, much less of an intention that Mr Hasan should succeed to the properties after Mr Sheikh’s death. It is equally consistent with a joint venture between the two to relieve Mr Shaikh of his debt; in other words, a commercial relationship. I find that whatever scheme was contemplated by Mr Shaikh and Mr Hasan is, first, poorly evidenced, so neither its structure nor its details can be discerned with any confidence; and second, insofar as it is evidenced, falls far short of demonstrating the quality of relationship which Mr Hasan suggests explains why Mr Shaikh named him as his sole beneficiary.

[106]That is not to say there was no personal relationship between the two men. Mr Shaikh apparently stayed in Mr Hasan’s family property in Bangladesh when he visited, and they had firm links through their support of a Bangladeshi political party. Mr Shaikh was also clearly reasonably happy at leaving Mr Hasan and his wife (and soon to be born child) in Number 47, retaining some use of it for himself, but also living for at least part of the time with his brother. In that regard I note that the death certificate, the information for which was supplied by Mr Hasan, gives Number 47 as Mr Shaikh’s address. At that point, it seems there was no question of Mr Shaikh having in some way donated or surrendered possession of Number 47 to Mr Hasan.

[107]To conclude, the evidence as to Mr Hasan’s occupation of Number 47 does not in my judgment help to establish the kind of close relationship which would lead Mr Shaikh to bequeath his entire estate to Mr Hasan.

[108]Also explored at trial was Mr Shaikh’s relationship with Ms Khatun, in an attempt to explain why Mr Shaikh was minded not to devolve his estate on her, and expressly to exclude her from any interest in it. The suggestion of the Defendants was that she and her husband had had a disagreement with Mr Shaikh in or around 2018, following which they were in effect estranged. Ms Khatun says this was not the case, and produced family photographs of Mr Shaikh with her children, his grandchildren, which she said evidenced close familial ties. In response to suggestions that she failed to become involved when Mr Shaikh was hospitalised, she relies on the fact that her late husband was at the time having treatment for terminal cancer, and those with suppressed immune systems, being especially vulnerable to Covid-19, and their families were advised to isolate. She gave evidence that her father’s phone ran out of battery once he was admitted into ICU, and she was thereafter unable to contact him direct.

[109]The photographs on which she relies to establish the close ties appear to date from no later than 2018. She also appeared to be unaware of the extent of her father’s medical problems, though her explanation of that is that Mr Shaikh did not want to add to her burdens in light of the poor health of her husband. Moreover, whilst she was challenged as to how it could be the case, if she was close to him and went on regular holidays to Blackpool with him and her wider family, she had never seen her father taking insulin for his diabetes, there is no evidence before the Court that he did routinely inject insulin, so that challenge adds little.

[110]It is difficult to reach any firm conclusions about the nature of Ms Khatun’s relationship with her father. I do not consider that the Defendants have established on the balance of probabilities that they were estranged; equally, were the onus to have fallen on her, I do not consider she has produced sufficient evidence to show that they were still on friendly and familiar terms. But in any event, I do not need to decide that issue, since the issue is not determinative. Even if, as the Defendants maintain, Ms Khatun was estranged from Mr Shaikh, it does not follow that he must perforce have decided to execute a will in Mr Hasan’s favour, and leave her completely out of any inheritance. The Defendants must prove the genuineness of the Disputed Will on the balance of probabilities, and my finding that they have failed to do so is unconnected to the state of Ms Khatun’s relationship with her father.

[111]Lastly there are two points of evidence which are said to militate against the Defendants’ case. The first is the evidence of Mr Pandit, who said that he spent the evening with Mr Shaikh on 19 September 2019, the date of execution of the Disputed Will. This evidence was not seriously challenged. However, it is possible that Mr Shaikh met him after having seen Mr Pathania and Mr Alam. So I do not think that takes matters any further.

[112]The second is more significant. It is hard to understand why Mr Shaikh would have included reference to properties owned in Pakistan in the Disputed Will. The evidence of Ms Khatun was that her father owned no properties in Pakistan. There is no conceivable reason, short of a disturbance of the mind (not something suggested by any party), that he would identify as assets properties he owned in a country in which he owned no property. No explanation has been provided for this mistake appearing in the Disputed Will, and importantly it was not denied that it was a mistake. The most likely answer is that the Disputed Will was not written by him, or at his direction, or with his knowledge. If I had any hesitation (which I do not) in reaching my conclusion that the Defendants had failed to discharge the burden of proof, this last factor would seal such a conclusion.

[113]To conclude, I find that the Defendants have failed to discharge the burden of proof, because (to summarise):(1) there is an unexplained absence of any of the sorts of corroborative documentary evidence one would expect to exist and to be produced as contemporaneous evidence of the matters on which the Defendants rely;

(2) the evidence that has been produced does not come close to establishing the close quasi-familial relationship Mr Hasan claims to have had with Mr Shaikh, a relationship which he specifically relies on to account for the terms of the Disputed Will;

(3) the alleged plans to restructure Mr Shaikh’s debts are scantly evidenced and such evidence as there are (a) seemingly evidence of a commercial arrangement between the two, and (b) not suggestive of a plan on Mr Shaikh’s part to bequest his entire estate to Mr Hasan;

(4) there are unexplained discrepancies and inconsistencies concerning the late production of the Disputed Will following Mr Shaikh’s death. These problems raise a number of unanswered questions with no reasons, or no adequate reasons, having been given why they have not been addressed by the Defendants. In view of the lack of corroborative evidence, and the evidential problems with the evidence that was given, in my judgment the uncorroborated oral testimony of Mr Pathania, Mr Hasan, and Mr Alam is not of sufficient weight to stablish the genuineness of the Disputed Will or to overcome the issues to which I have referred. Expert evidence

[114]I turn lastly to the expert evidence of Dr Myers, which in the event will prove of little significance, since I have found that the Defendants have failed to prove on the balance of probabilities that the Disputed Will was drafted and executed by Mr Shaikh. The issue occupied a significant proportion of the time spent on submissions, and for the sake of completeness I shall briefly set out the rival contentions. Ms Khatun relies on Dr Myers’ conclusion that there was strong evidence that the signature on the Disputed Will was not that of Mr Shaikh but had been written by someone who was familiar with his signature.

[115]It was first necessary to consider whether the Defendants were entitled to make any submissions on Dr Myer’s evidence, in light of the decision in TUI UK Ltd v Griffiths

[2023] UKSC 48

, to which I drew Counsel’s attention. In Tui the Supreme Court held that the trial judge had acted unfairly in rejecting the expert’s evidence without the expert having been challenged in cross examination. The general rule in civil cases is that a party must challenge by cross examination the evidence of any witness of the opposing party on a material point which he or she claims should not be accepted by the trial judge. This includes expert witnesses. If a party chooses not to challenge the expert’s evidence by cross examination, the general rule is that they cannot then criticise the evidence in closing submissions.

[116]The rule is not a rigid one, and the Supreme Court gave seven (non-exclusive) instances in which the requirement may be relaxed. Those instances include(1) where the expert report makes an assertion with no reasoning in support (ipsi dixit), and

(2) where the report does not comply with the requirements of CPR PD 35. Mr Evans submitted that Dr Myers’ report fell into both those categories. First, he submitted that Dr Myers’ report was ipsi dixit: she asserts that which she concludes, and gives no reasoning. He invited me to find that the report fell below the standard required and is therefore inconclusive and should be given no weight at all.

[117]I do not accept that submission. Dr Myers’ report was on the succinct end of the spectrum, but was very far from asserting conclusions without giving reasons. Dr Myers identified the signature on the copy Disputed Will with which she had been provided, and the signatures on the copy documents with which she had been provided. She commented on the limitations arising from the fact that she had only copies to work with, not originals, in terms of being unable to determine the detail of construction with certainty, and highlighted that as a result her examination was restricted to little more than their pictorial representation. She then commented in turn on the signature on the Disputed Will, which she said appeared to lack fluency thought this could not be fully assessed from the copy, and the signatures on the reference documents, some of which indicated a reasonable degree of fluency as far as could be observed from the copies, while others exhibited a reasonable degree of fluency but unclear formation of characters.

[118]Dr Myers went on to identify the features she would take into consideration when comparing signatures, before going on to note no less than 10 differences between the Disputed Will signature and the reference material, which she supported by appending a comparison chart juxtaposing the questioned and the reference signatures, using arrows to point to the differences she had noted. She finished by identifying the two propositions under consideration:(1) that Mr Shaikh signed the Disputed Will; and

(2) that some other person was responsible and similarities were due to an attempt to simulate the signature. She concluded that the signature on the Disputed Will provided strong evidence to support the second proposition, and that the signature had been authored by another hand, by someone who was familiar with the signature of Mr Shaikh. I regard this as a reasoned expert report and reject the submission that it falls into the ipsi dixit exception identified by the Supreme Court in Tui.

[119]Next Mr Evans relies on the fact that the expert declaration signed by Dr Myers had been superseded by an updated version prior to the date on which she signed her report. He points out that the Practice Direction 35 states that the expert “must” sign their report with the wording supplied, and submits that the requirement is mandatory and sanctions arise for its breach. There was no application for relief from sanctions. The report therefore fell within the exceptions to the rule identified and approved by the Supreme Court in Tui.

[120]In my judgment it is misguided to interpret the mandatory language of the Practice Direction as meaning that failure to comply requires relief from sanctions before the expert report can be relied upon. Moreover, while failure to comply with the requirement of PD 35 can provide a further exception to the rule that where an expert report is not challenged it cannot be undermined in submissions, as was pointed out by Lord Henderson at [68], a party seeking to rely on such a failure would be wise to seek the directions of the trial judge before deciding not to cross examine the expert, but retain the right to make submissions, as much will depend on the seriousness of the failure. In this case no directions were sought, and the failure to cross examine Dr Myers arose not because her report, being in breach of PD 35, was accordingly inadmissible; but simply because the Defendants had failed to prepare properly for trial. Had they prepared, they would have obtained their own expert evidence, and matters such as the out of date expert’s declaration would have been addressed at the appropriate time. The significance of the expert evidence would have been appreciated and directions sought to call each expert to give oral evidence, at which point Dr Myers would have been cross examined on all the points Mr Evans wanted to raise with me in submissions. The fact she was not called lies wholly at the Defendants’ door, and it would be wrong to allow them to benefit from their default by relying on a technicality in terms of the expert’s declaration.

[121]Accordingly I find that the exceptions to the general rule do not apply and that therefore the Defendants are prevented as matter of fairness from making submissions to undermine Dr Myers’ evidence And in case it be said that the Defendants sought a direction that Dr Myers be called to give oral evidence at the outset of the trial and at the 9 January 2025 adjourned hearing, and thus it was not their fault that they were unable to cross examine her, I repeat my earlier finding that that application was made far too late (on the first morning of the trial and then only orally, and again leading up to and at the 9 January 2025 hearing) for it to have any chance of success without an adjournment, the need for and desirability of which Mr Evans expressly disavowed when asked at trial, and an application for which I refused at the hearing on 9 January 2025.

[122]Where does that leave the expert evidence? In view of my conclusion that the Defendants have failed to discharge the burden of proof, it is in one sense irrelevant. But, succinct as it may be, it is the only independent evidence before the Court on the authenticity of the signature on the Disputed Will. Based on the evidence before her, the shortcomings of which Dr Myers expressly alluded to and which are reflected in the confidence with which she expresses her opinion, she concluded that the signature of the Disputed Will provided strong evidence to support the proposition that it had been authored by another hand, by someone who was familiar with Mr Shaikh’s signature, as far as could be determined from the copies. Nothing about her conclusion causes me to revisit or doubt my earlier findings and rulings; if anything, though at most, I draw reassurance from the fact that the conclusion I have reached is consistent (albeit reached by a process of assessing a different pool of evidence) with the conclusion reached by Dr Myers.

[123]To conclude, the Defendants have failed to establish on the balance of probabilities that the Disputed Will was genuine. I asked the parties to collaborate in attempting to agree a draft Minute of Order, and submitting the same to me prior to the handing down of judgment. However, disagreements remain, including disagreements as to the conduct of probate following this judgment, and the appropriate basis on which costs should be assessed. Accordingly, I require the parties to attend a further hearing, time estimate 2 hours, at which those consequential matters will be addressed. Written submissions are required to be filed no less than 48 hours prior to the hearing,