Analysis
The deceased (Badri) was a wealthy Georgian businessman. Since Badri’s death litigation, in relation to both the devolution and administration of his estate, had been conducted in numerous jurisdictions. Mr Boris Berezovsky maintained claims against the estate on the basis of alleged joint ventures, but for the purpose of this action supported various members of Badri’s family (the family defendants) in their challenge of documents alleged to have testamentary force.
Badri’s half-cousin and sometime business assistant, Mr Joseph Kay (Mr Kay), had, since Badri’s death, sought to prove the existence of three valid testamentary documents, namely:
- (i) a letter of wishes making reference to three further documents (Confidential Addendums A, B and C);
- (ii) a deed of appointment of Mr Kay as executor of the estate; and
- (iii) an unsigned document headed ‘Confidential Addendum C’. Mr Kay did not produce originals of these documents in any court proceedings nor file any evidence before the court to support his position.
The family defendants maintained that these documents did not constitute a genuine will or testamentary documents and that they were, in any case, forgeries. They accordingly brought proceedings against Mr Kay, inviting the court to pronounce against the force and validity of these alleged testamentary documents and applied for summary judgment. Additionally, the family defendants sought an order that three of their number should be appointed as administrators; that they be appointed receivers for the estate until grant of letters of administration; and that they be vested with the right to represent Badri’s estate in all existing claims.
Held (pronouncing against the force and validity of the alleged testamentary documents by way of summary judgment; ordering that three family defendants should be appointed as administrators; and ordering that existing actions by and against the estate be vested in the three family defendants):
- (1) Mr Kay did not have any real prospects of successfully defending the family defendants’ probate action, as: he failed to produce originals of the alleged testamentary documents; he failed to produce even copies of Confidential Addendums A and B; sworn statements suggest Badri did not read or sign any documents on the alleged day of execution; there were inconsistencies in his evidence as to who witnessed the documents; the signatures, although purportedly of the same witnesses, did not match; he failed to provide any particulars of how the documents came to be drafted and executed; forensic handwriting evidence suggested Badri’s purported signatures were not genuine; evidence from a forensic computing expert suggested that various versions of the documents were prepared after Badri’s death; the alleged circumstances in which Addendum C was alleged to have been found were incredible and not explained by sworn evidence (paras [15], [21]-[27], [30], [32], [33]).
- (2) The Senior Courts Act 1981, s116 should be read as a general power for the High Court to override what would otherwise be the position under the Non-Contentious Probate Rules 1987. Parliament cannot have intended that s116‘s application would turn on the deceased’s domicile, and therefore it was of no consequence that Badri was foreign domiciled and that, pursuant to r30, no individual was ‘entitled’ to a grant of letters of administration over his estate (paras 44-46).
- (3) The Trustee Act 1925, s51, granted the court power to order that causes of action vested in the interim administrators should be vested in other persons. It was just to exercise this power in the circumstances, so as to avoid any uncertainty or hiatus over the estates ability to participate in such litigation (para 48).
Continue reading "Gudavadze & ors v Kay & ors [2012] EWHC 1683 (Ch)"