Analysis
The late Hartar Singh Sangha (Mr Sangha) died on 3 September 2016, leaving a complex family life and a large portfolio of property and other assets in both the UK and India. He had made a large number of wills at various times. The interaction of these instruments produced significant disputes among his family members. Mr Sangha had at some times during his life regarded himself as married to the first respondent (Diljit). At other points, he regarded himself as married to the appellant (Jaswinder).
Four wills made by Mr Sangha were placed before the court. These were as follows:
- (1) a 1979 will which provided (inter alia) that half of his property should be held on trust for life for ‘my wife Diljit’, with the remainder to his two children by Diljit (Sundeep and Mandi), and the other half to Sundeep and Mandi;
- (2) a 2003 will covering only his properties in India, leaving these to ‘my wife Jaswinder’ and his son by Jaswinder (Harbiksun) jointly, and if both of them predeceased him, to Sundeep;
- (3) a 2007 will, covering all of his property in the UK and India, which left his estate to ‘my wife Jaswinder’, or, if she predeceased him, to Harbiksun, and provided that Mr Sangha’s sister Jagpal should have no interest whatever in any of his property; and
- (4) a 2016 will, covering only land and assets in India, leaving these in four equal shares to Sundeep, ‘my wife Daljit’, Harbiksun and Jagpal.
The 2016 will contained a clause providing ‘this is my last and final WILL and all such previous documents stand cancelled’. At first instance, the Deputy Master held that that these words were effective to revoke all of the previous wills, such that the 2016 will was the only valid existing testamentary instrument. There being no unrevoked will dealing with the English property, it would be dealt with as an intestate estate. The Deputy Master also held that the 2007 will was validly executed as a matter of English law, albeit that it took no effect, having been revoked by the 2016 will.
On appeal, the appellant contended that the intended effect of the clause was not to revoke the 2007 will in its entirety, but only to the extent that it applied to the property specifically bequeathed by the 2016 will, and that therefore the two wills should be read as co-existing. By way of cross-appeal, the respondents (Sundeep (representing himself and Diljit’s estate), Mandi, Harbiksun and Jagpal) maintained that the Deputy Master was wrong to conclude that the 2007 will was validly executed as a matter of English law, and that the English assets should therefore be dealt with as an intestate estate in any event. It was not disputed that the first witness to the signature of the testator had signed the will prior to the entry of the second witness into the room. This, it was contended, was insufficient to meet the requirements of s9 Wills Act, since the signature of the first witness had neither been made nor, so far as any direct evidence showed, acknowledged in the presence of the second witness.
Held:
The appeal would be allowed. The revocation clause on its true construction revoked only the previous wills dealing with Mr Sangha’s Indian estate. The question was as to the ordinary and natural meaning of the words ‘all such previous documents stand cancelled’. The construction of ‘such’ was therefore of central importance. The word could operate in one of two ways:
- (1) it could refer to the word ‘will’ in the same sentence, so that the full sentence would read ‘this is my last and final will and all [previous wills] stand cancelled’; or
- (2) it could refer to the document in which it was contained, so that the full sentence would read as ‘this is my last and final will [in respect of my Indian property], and all [wills in relation to that property] stand cancelled’.
Although deciding between these constructions was not at all easy, the latter construction was to be preferred. Had it been the testator’s intention to revoke the will dealing with his English property, it would have been likely that he would have mentioned that fact, or at least alluded to it. This was especially the case since the 2016 will was drafted in India, with the assistance of an Indian lawyer, and related exclusively to property in India. The terms of the document itself provided no indication at all that the document was intended to have any application at all outside the specific estate with which it dealt. Furthermore, there was an entirely plausible alternative explanation for the chosen wording aside from the view that it was intended to revoke all previous wills. Mr Sangha had previously made a 2003 will which also related exclusively to his Indian property, and which covered some of the property also covered by the 2016 will. Thus, there was a clearly identifiable document which could have been intended by the term ‘such documents’ in the revocation clause, ie the 2003 will.
Although the respondent contended that Mr Sangha could not have intended to allude to the 2003 will by the phrase ‘such previous documents’, on the basis that he must have known that that will was revoked by the 2007 will, it was not at all apparent that it had been so revoked, this being a matter of Indian law. In any event, Mr Sangha, as a lay testator, would have been unlikely to have been certain of any such revocation, and, as a frequent testator, would likely have believed that it would be necessary to revoke previous wills. Where a will is expressed to apply to specific, identified property in a particular jurisdiction, is made in that jurisdiction with the assistance of lawyers established and qualified in that jurisdiction, and has no other connecting factor with any other jurisdiction, the starting point should be an assumption that the will as a whole is only intended to apply to that property in that jurisdiction unless there is some good reason to believe otherwise. In this case there was none.
The cross-appeal would be dismissed. The argument advanced was premised on the old wording of the Wills Act, which provided that the testator’s signature ‘shall be made or acknowledged… in the presence of two or more witnesses… and such witnesses shall attest and shall subscribe the will’, the word ‘shall’ in this context having been held to denote a time sequence, so that it was read as ‘shall then’. The amendments made to s9 in 1982 removed the word ‘shall’ from this section and reworded it. This rewording removed the concept of time sequencing, with the intention of providing that all that is required is that the testator must sign or acknowledge his signature in the presence of two witnesses, and each witness must either sign or attest to the testator. This was the view reached by the Deputy Master, and the appellate court agreed. In consequence, the fact that the first witness signed the will before the testator acknowledged the will in the presence of two witnesses did not invalidate the will, and the fact that he did not reacknowledge his own signature after that event was irrelevant. Further the finding of fact which the Deputy Master had made, that there would have been ‘an assertion, or indication, by… [the First Witness] that he had already signed the will, as witness’ was one which was open to the Deputy Master to reach even in the absence of direct evidence bearing on this point, proceeding by inference, as he was entitled to do. The appellate court would have no business challenging a finding of fact by the tribunal which actually heard the witnesses. Moreover, the Deputy Master had been right to reach the conclusion he had, since the idea that three men, gathered together to create a will and having signed it, would not have behaved in such a way as to acknowledge to each other the signatures which they had applied to the document, was fanciful.
JUDGMENT MR SIMON GLEESON: [1] This is an appeal against one part of the order of Deputy Master Bowles dated 21 September 2021 in this matter. [2] When Hartar Singh Sangha (‘Hartar’) died on 3 September 2016, he left behind him a complex family life and a large portfolio of property and other assets in …Continue reading "Sangha v Sangha & ors [2022] WTLR 1561"