Analysis
The testator, Ranjit Singh (D), died in 2009. He had executed a will dated 3 May 1999, naming his eldest son, the claimant (J), as executor and sole beneficiary. The will was attested by two witnesses, Maurice Grantham (G) and Gurdial Ahluwalia (A). D’s daughter, Balvinder Ahluwalia (B), challenged the will on the grounds that the two witnesses had signed it on two separate and distinct occasions at different places. G gave evidence that he had signed the will when D visited his house and he was the only witness present, but he was not able to identify the will when it was shown to him in court, because D had merely presented him with a folded piece of paper. Even the attestation clause (if present) was hidden so that G could not tell what kind of document it was that he was witnessing. At first instance, the deputy judge held that the deceased’s alleged will was not properly attested, despite the authentic signatures of two witnesses and the presence on the document of a common form attestation clause finding that that the two witnesses had indeed signed the document on two separate and distinct occasions at different places. He decided that the presumption of due execution had been rebutted, revoked the grant of probate and declared the deceased intestate. J appealed, submitting that the deputy judge’s finding was ‘extraordinary’ and a ‘fundamental error’, because it assumed that the testator had completely ignored clear instructions he was given two days previously about how to execute the will, and that in any event it was impossible to fold the original will in the way alleged. Permission to appeal was refused by Lewison LJ, and his refusal was appealed.
Held
Application refused [18]. No point of law was raised by the proposed appeal. The deputy judge correctly directed himself on the presumption of due execution in the absence of the strongest evidence. In evaluating the evidence he had the benefit of seeing the ‘folding’ demonstration. He considered the layout of the will and he heard the evidence given by G. The proposed appeal was an over-optimistic attempt to persuade the court, which would not see or hear G give evidence, to re-decide the main factual issue in the trial and to come to a different conclusion contrary to the evidence given to the trial judge. There was no real prospect of the court taking that course.
UDGMENT MUMMERY LJ Introduction [1] At the end of the hearing of a renewed application for permission to appeal I stated that it would be dismissed for reasons to be put into writing. [2] On 10 August 2012 I prepared a draft judgment for consideration by Morgan J. On 29 August 2012 the clerk to …Continue reading "Singh & ors v Ahluwalia [2012] EWCA Civ 1635"