Analysis
This was a challenge to the purported will of Mrs Naseem Syed Khan (the deceased) on the basis that it was a forgery. The deceased died on 17 July 2008. Mr Jafar Ali Khan (Mr Khan) was the deceased’s husband. Mr Khan had survived the deceased and had taken out letters of administration in respect of her estate on the basis that she had died intestate. Mr Khan died on 8 January 2011 leaving a will dated 2 September 2010.
Mr Syed Ali Haider (the claimant) was the deceased’s nephew. Mr Mehdi Hassan Syed (the defendant) was the sole executor and main beneficiary of the last will of Mr Khan. The claimant sought revocation of the existing grant of letters of administration to Mr Khan on the ground that the grant was based on the incorrect statement that she had died intestate. The claimant contended that in fact she had made a will in India on Christmas Day 2005 (the contested will). The defendant denied the claim on the basis that the contested will was a forgery. It was not in dispute that if the contested will was a forgery, the deceased’s estate would pass to Mr Khan on the deceased’s intestacy and would therefore fall to be distributed in accordance with the terms of Mr Khan’s will of 2 September 2010. The contested will first emerged in about February 2011 when it was brought to the United Kingdom from India by one of the attesting witnesses.
The deceased had made a visit to India with Mr Khan in 2005. While there, she had visited her lawyers in India and executed a power of attorney and a nomination on 19 December 2005. These documents were not in dispute. Under the nomination the deceased arranged that on her death all of her shares in a particular property (the Red Wood flat) would be transferred to Mr Khan. A confirmed flight booking suggested that the deceased and Mr Khan had planned to return to the United Kingdom on 20 December 2005. The attesting witnesses were Syed Jaffer Husain (Jaffer), Ali Reza Abdul Husain (Ali Reza) and Zaki Shah; they gave evidence in support of the claimant by video-link from India. The attesting witnesses gave evidence that the deceased and Mr Khan had changed their travel plans. Jaffer gave evidence that the deceased had decided to make a will, and that he had taken the deceased to a place in front of the High Court where there were usually lawyers ‘milling around’. One of these lawyers, whose details Jaffer could not recall, had taken instructions for the deceased’s will. The attesting witnesses all gave affidavit evidence in identical term that the contested will was executed on 25 December 2005. Under the terms of the contested will, the deceased left the Red Wood flat to Raeesa Ali Reza Agha, who was the deceased’s sister and Ali Reza’s wife. Jaffer also gave evidence that the deceased had asked him not to tell anyone about the contested will including her husband Mr Khan.
The defendant adduced evidence that the deceased, Mr Khan, and Ali Reza had in fact been in the United Kingdom on Christmas Day 2005. The court heard expert evidence on the authenticity of the purported signature of the deceased from Dr Audrey Giles, a forensic document examiner, for the claimant and Mrs Ruth Myers, a graphologist and forensic handwriting analyst, for the defendant.
Held:
- 1) The burden of proving forgery lay on the party alleging forgery. In respect of the burden of proof, the relevant principles were those set out by Lord Nicholls in In
Re H (Minors) (his Lordship citing Ungoed-Thomas J in In re Dellow’s Will Trusts with approval), namely that when the court is considering a serious allegation, the standard of proof is still on the balance of probabilities. However the inherent probability or improbability of an event is itself a matter to be taken into account, and the more serious the allegation, the more cogent the evidence required to prove it. - 2) The starting point in assessing the evidence was the rebuttable presumption of due execution. In light of all the evidence, the deceased did not sign the contested will and the signature on the document was a forgery. The idea that the deceased had changed her travel plans was ‘implausible in the extreme’. The suggestion that the deceased had given instructions to an unknown person in the street when she had visited her own lawyers six days earlier was ‘literally incredible’. It was ‘wholly implausible’ that the deceased would make a will leaving the Red Wood flat to her sister a few days after she had made a nomination in favour of her husband Mr Khan. The expert evidence of Dr Giles, which suggested that it was as likely as not that the signature was a forgery, was to be preferred.
- 3) In a case of forgery, it is not necessary to make any specific findings as to how and when the forged signature came into existence.
- 4) Under CPR r32.3 the use of video conferencing facility requires the permission of the court. An application should be made well in advance of the hearing wherever practicable. This is apparent from Practice Direction 32.
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