Boudh v Bodh

This is an appeal from an order made by Evans-Lombe J on 9 October 2006 in a contested probate action. He pronounced for the force and validity of the last will of Nami Chumber (the Deceased) dated 16 November 2000 (the one page will) in favour of two grandsons and against the force and validity of the will made by the Deceased on 8 March 2000 (the March will) in favour of her eldest son Charan Boudh (Charan). Although the Deceased was a Punjabi speaker who could not read English, both the one page will and the March will were typed in the English language. Each will contained a translation clause.

The Deceased died on 30 November 2003 at the age of 77. The main asset in her estate was the house in which she lived at 55 Beaconsfield Road, Southall, Middlesex (No 55). Following the death of her husband on 5 April 1997 she became the sole owner of No 55. Charan, who was sole executor of and beneficiary under the March will, obtained probate of it on 23 May 2003. He sold No 55 in July 2005 for £223,700. From the proceeds he made substantial payments to his children.

The grant of probate of the March will was revoked by the order of 9 October 2006. Instead, it was ordered that a grant of probate of the one page will be made to Abhaya Bodh (the claimant) and and his cousin, Vijay Boudh, who are grandsons of the Deceased named in the one page will as both executors and beneficiaries. Vijay is Charan’s son.

The judge rejected Charan’s application for his costs of the action to be paid out of the estate. His ruling was that there should be no order for costs.

Charan appeals against the order of Evans-Lombe J with permission granted by a single Lord Justice on a renewed application.

A case of this kind, turning almost entirely on the credibility of oral evidence and the findings of fact by the trial judge, rarely reaches this court, let alone the House of Lords, as happened in Wintle v. Nye [1959] 1 WLR 284.

I mention that leading probate case at the outset, as it is strongly relied on by Mr Croally, counsel for Charan at trial and on this appeal. Wintle v. Nye is a celebrated probate case. In practice, it is frequently cited in legal opinions and in judgments. Evans-Lombe J is criticised for neither mentioning it by name in his judgment nor quoting from it.

As I shall explain, these criticisms are misconceived. This very experienced Chancery judge correctly summarised the relevant law, which was uncontroversial, in his own words (paragraph 21 of his judgment). As he recorded, it was not in issue that the burden of proof is on the claimant, who is propounding the one page will, to prove that the Deceased knew and approved its contents when making it. In the circumstances of this case it was not enough for the claimant to rely simply on the presumption of validity arising from the fact that the disputed one page document appeared, on its face, to have been duly executed as a will.

The Wintle v. Nye ruling supplies relevant guidance in this case, but the differences between the circumstances of the disputed will in that case and the one page will in this case headlight the fact-sensitive nature of a challenge to the validity of the one page will on the ground of the Deceased’s want of knowledge and approval of its contents.

Mrs Wells, the testatrix in Wintle v. Nye, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not an intimate friend of Mrs Wells. Mr Nye was appointed sole executor. Mrs Wells left the bulk of her large estate to him. The only evidence of her instructions for the will was that given by Mr Nye, in whose offices the will and codicil were executed. On the death of Mrs Wells probate of the will and codicil was obtained by Mr Nye.

Lt Col Wintle, as assignee of a person entitled in the event of the intestacy of Mrs Wells, attacked the validity of the will and codicil. He did not do so by advancing a positive case, such as lack of capacity, undue influence or fraud. He put Mr Nye to proof that Mrs Wells knew and approved the contents of her will and codicil.

The case was tried by Barnard J with a jury, who found in favour of the will and codicil. By a majority the Court of Appeal dismissed the appeal brought on the ground that the judge had misdirected the jury. In the House of Lords Col Wintle appeared in person. He won his appeal, which was allowed on the ground of a misdirection to the jury by the trial judge. Directions were given for the revocation of the will so far as it related to the gift of residue to the solicitor.

The House of Lords affirmed the common sense proposition that, if there are facts which create a suspicion that the deceased did not know and approve the contents of the will, it is for the person propounding the will to remove the suspicion. Viscount Simonds said (at page 291) that “the circumstances were such as to impose on the respondent as heavy a burden as can well be imagined” and they demanded “a vigilant and jealous scrutiny” by the court. In other cases, as Viscount Simonds pointed out, the degree of suspicion may be “slight and easily dispelled.” The degree of suspicion and the evidence required to satisfy the court of the deceased’s knowledge and approval vary according the circumstances of the particular case.

On its face the one page will, which was typed in English, was duly executed: it carried the signature of the Deceased; it contained an attestation clause in the correct form; and it bore the signatures of two witnesses, Mr Nirmalandandan (known in his office and in this judgment as Mr Nim, but also called Mr Gratian in some of the evidence), a solicitor, and Mr Yogakumar (also called Mr Kumar Sangara or plain Mr Kumar), an accountant and solicitor’s practice manager and book keeper. A translation clause in manuscript stated that the will had been read over to the Deceased in the Punjabi language. Mr Kumar gave evidence, but Mr Nim was unavailable to do so. He pre-deceased the Deceased.

The issues in the proceedings commenced by the claimant on 5 August 2005 were whether the one page will was (a) duly executed and (b) made with the Deceased’s knowledge and approval of its contents at the time when she signed it.

At trial Mr Croally contended that (a) the one page will was executed and produced in such suspicious circumstances, and (b) the evidence produced by the claimant was so suspect, that the onus on the claimant under Wintle v. Nye had not been satisfied. On this appeal he submitted that no judge properly directing himself could reasonably have reached the conclusion that the one page will was valid. The judge’s findings on the circumstances in which the one page will was executed did not, it was argued, accord with the evidence of any witness, but amounted to an illegitimate attempt by the judge to explain away the suspicious circumstances by a speculative account of his own. In brief, the one page will could not safely be regarded as a valid will in the light of the suspicions aroused by the circumstances in which it was made and of the suspect nature of the evidence adduced to prove it.

What is it that is so suspicious about the circumstances of the one page will? This is a summary based on Mr Croally’s submissions.

The claimant produced to the court yet another will, which is also dated 16 November 2000. It carries the Deceased’s signature and is in similar terms. It is typed in English, and consists of three pages, which includes a typed translation clause and the purported signatures of 3 witnesses. Two of them had also purported to witness the signature of the Deceased on the one page will (Mr Nim and Mr Kumar). The judge found that the “three page will”, as I shall describe it, was invalid in that the purported signature of the third witness (Mr Cheema) was a forgery. The judge accepted Mr Cheema’s evidence that he had not signed the three page will. It is suspicious, Mr Croally asserted, that the same person (or persons) who produced the fraudulent three page will had also produced the one page will on the same day.

The person chiefly responsible for producing both wills was the late Mr Nim. He was a partner in the firm of solicitors, Gratian & Co at 81 South Road, Southall until his death on 30 September 2001. He was of proven bad character. The conduct of the practice of Gratian & Co by Mr Nim and Mr Kumar was investigated by the Law Society. According to the findings of a Solicitors’ Disciplinary Tribunal Mr Nim had misapplied monies held by the firm, forged the signature of his former partner in the practice (Mr Ratnam) on client account cheques and had been involved in fraudulent mortgage transactions.

It was clear that not even Mr Nim himself could have regarded the one page will as an effective legal document. He used it as scrap paper and doodled on it. The one page will only came to light after the grant of probate of the March will to Charan and after Mr Nim’s death. It was accidentally found by Mr Ratnam in an unrelated office file. Mr Ratnam could not find the original of the three page will.

The Deceased could not read or write English, the language in which the one page will was typed. Neither of the alleged witnesses to the one page will were fluent Punjabi speakers capable of explaining it in full to the Deceased. The translation clause did not identify the Punjabi speaker responsible for translating the will to the Deceased. The judge found that the evidence of Mr Kumar, who was one of the purported witnesses, was unreliable on this point.

By the March will the Deceased left everything to her eldest son Charan. This accords with common Indian practice under which the eldest son distributes the money among the wider family at discretion or in accordance with the instructions of his parent. It is suspicious that, only 8 months after the March will, the Deceased is alleged to have completely disinherited Charan when there was no reason for her to do so.

Charan produced evidence in the form of a diary entry of a conversation that he had had with the Deceased on 16 July 2002, when she discussed with him the distribution of her estate by him after her death. The conversation was incomprehensible if the Deceased had been aware that she had already disinherited Charan by the one page will.

At a meeting called after the death of the Deceased Charan told the assembled family, including the claimant, about the March will and explained what he was proposing to do as executor and beneficiary of the March will. It was suspicious that the claimant did not mention at that meeting the existence of a later will.

There was no documentary evidence to support the claimant’s case on the two purported wills of 16 November 2000. It was suspicious that there was no letter of instruction, no attendance note of a meeting with the Deceased at the solicitors’ office, and no bill rendered for the work done for the Deceased. The claimant’s case for the one page will was dependent on the oral evidence of witnesses called by him, none of whom could be regarded as a truthful or reliable witness capable of dispelling the suspicions surrounding the one page will. Mr Croally made detailed criticisms of the evidence, in particular, of the reliability of Mr Kumar, whose signature appeared on the one page will and the three page will; of Mrs Ohri, a close friend of the Deceased; and of the claimant himself.

As explained below the judge set particular store by the oral evidence of Mrs Ohri as dispelling the suspicions about the one page will. Much of her evidence was challenged by Mr Croally in cross examination and criticised by him in argument.

Mrs Ohri’s evidence was that she had a very close relationship with the Deceased whom she called “Auntie”. They both came from the same village in India. They lived near one another in Southall, where they had first met in about 1968. Mrs Ohri and her husband were fairly frequent visitors to No 55.

In about April or May 2000 the Deceased told her that she wanted to change her March will and to leave her property equally to the claimant and Vijay, who were grandsons. This was her late husband’s wish. She had fallen out with her eldest son Charan. She thought that he was mistreating her.

In August or September 2000 Mrs Ohri and her husband went with the Deceased to see a solicitor in the firm of Simon & Co in Southall about making a new will. As the Deceased was unable to nominate an executor for her intended will, she made no new will on that visit.

In the early afternoon of 16 November 2000 Mr and Mrs Ohri took the Deceased to another firm of solicitors, Gratian & Co in South Road, Southall, with whom they had made an appointment because she wanted to make a new will. Mrs Ohri’s initial evidence was that she did not go along to the appointment at the solicitors’ offices, but she changed her evidence under cross examination and said that she had attended the meeting at Gratian & Co.

As to the meeting, Mrs Ohri’s evidence was that the three page will was executed by the Deceased and witnessed by Mr Nim, Mr Kumar and Mr Cheema. She was given a photocopy to take away and kept it. She did not produce it until after she was told by the claimant about the family meeting called by Charan and about Charan’s proposal to divide the Deceased’s property four ways amongst the Deceased’s children. She gave her copy of the three page will to the claimant on 10 November 2003.

The judge also dealt with the circumstances in which Mrs Ohri said that the one page will, which had not emerged until after the grant of probate to the March will, was prepared and executed. He accepted her evidence that Mr Ohri, who was fluent in Punjabi, translated and explained the contents of the one page will to the Deceased. Unfortunately Mr Ohri was not available to give evidence to the court, as he had died on 24 July 2002. The contents of the one page will were also read in translation by a Punjabi speaking member of the staff.

The one page will was witnessed by a solicitor, Mr Nim, who added a translation clause in manuscript, and by a member of his staff, Mr Kumar.

The judge held that the one page will was valid: it was duly executed with the required knowledge and consent of its contents on the part of the Deceased.

The judge concluded that the three page will, which he found was typed later that afternoon, was not validly executed and did not therefore revoke the one page will. The Deceased signed only the first of the 3 retyped pages. Although the second sheet bore three signatures of purported witnesses, there was no evidence of due attestation. The judge accepted the unchallenged evidence of Mr Cheema, who worked for Gratian & Co as a trainee solicitor, that his signature did not appear on the will.

In his judgment the judge said that he had found it “particularly difficult to arrive at a satisfactory factual conclusion” (paragraph 28). Although he described Mr Croally’s assault on the claimant’s case as “formidable” he concluded that he could be satisfied that the Deceased duly executed the one page will with the required knowledge of and consent to its contents. He set out full reasons in 13 sub-paragraphs. Rather than repeat them all in this judgment I have picked out the judge’s main points.

He rejected Mr Croally’s submission, which was repeated in this court, that the entirety of the claimant’s case for the one page will, primarily based on the evidence of Mrs Ohri, was the product of “an elaborate deception to which [the claimant] , Mrs Ohri, Mr Kumar and Mr Nim were parties.”

He regarded the evidence of Mrs Ohri as having “the ring of truth.” He agreed with Mr Croally that there were “blemishes” in her evidence, but concluded that they did not justify rejecting her evidence in its entirety as pure invention. Her evidence was consistent with the two documents in the case. He was satisfied that she was doing her best to assist the court truthfully.

He found that the key facts concerning the execution of the one page will were reasonably clear: there was a meeting at the offices of Gratian & Co on 16 November 2000; it was attended by the Deceased; the purpose of the meeting was for the Deceased to execute a will; the Deceased had in mind the March will and was intending to make a different will; in the course of the meeting she executed a will, which was witnessed by Mr Nim and Mr Kumar; and this one page will carrying her signature and the signatures of the two witnesses was simple and did not require a complicated explanation.

He accepted Mrs Ohri’s evidence about the background to the execution of the one page will: she was a close friend of the Deceased, both of them coming from the same village in India; Mrs Ohri and her husband were fairly frequent visitors to No 55; the Deceased told her about the March will and that she wanted to change it and leave her property equally to the claimant and Vijaly; she arranged in August or September to take the Deceased to a firm of solicitors in Southall, Simon & Co, to make a will but could not do so as the Deceased was unable to nominate an executor for her intended will; and she and her husband, who has since died, made an appointment with Gratian & Co.

He noted that Mrs Ohri had changed her evidence about the meeting from having said initially in her witness statement that she did not go to saying in cross examination that she did go and was present throughout. This was the principal point of self contradiction on which Mr Croally attacked her evidence. The judge noted her explanation that she did not wish to become involved with the affairs of the Deceased’s family.

He also noted Mr Croally’s attack on her evidence as to why the Deceased had not gone back to Simon & Co to make the will. Mrs Ohri said that the firm had closed. When it was shown that the firm had not closed, she gave demonstrably wrong or irrational reasons for not going back to that firm.

Despite these unsatisfactory features of Mrs Ohri’s evidence, the judge accepted the thrust of it as having “the ring of truth.” He said this in paragraph 28-

The judge added that he was satisfied that a viable reason was shown for why the Deceased changed her will. Mrs Ohri’s evidence was that the Deceased had fallen out with Charan. He was also satisfied that, even if the claimant was aware of the one page will at the time of the family meeting on 11 January 2003, it was an acceptable reason for keeping quiet about it that he thought that his side of the family would benefit from the proposed distribution by Charan.

There are three main grounds of appeal against the substantive ruling of the judge for the validity of the one page will.

The first ground of appeal is one of law. It is that the judge failed to direct himself in accordance with Wintle v. Nye. There is nothing in this point. Whilst it is true that the judge did not cite the leading case on want of knowledge and approval or quote from it, he correctly stated the law, which was not in dispute between the parties (paragraph 21).

The second and third grounds of appeal are on fact. It is convenient to take them together, as they both involve criticisms of the way in which the judge treated the evidence. It is contended that (a) the evidence of the claimant’s witnesses was inadequate to discharge the burden of proof on the claimant and to dispel the many suspicions surrounding the one page will; and (b) the judge’s findings that there was one meeting at the solicitors’ offices on 16 November 2000 at which the Deceased executed the one page will and the three page will (in that order) was unsupported by the evidence of any of the witnesses in their conflicting accounts.

In particular, Mr Croally criticised the judge for accepting the evidence of Mrs Ohri, saying that he had not properly assessed it. Quite apart from Mrs Ohri’s change in her evidence about whether she attended the offices of Gratian & Co with the Deceased on 16 November 2000 and her lack of a convincing explanation for not returning to Simon & Co to make a will, the judge omitted to mention other flaws in her evidence: she had given incorrect evidence that Mr Cheema witnessed the three page will, which the judge found he had not; it was impossible to reconcile her evidence with the judge’s findings on the validity of the one page will; and it was she who had first produced the photocopy of the fraudulent three page will to the claimant. Her witness statement made no mention of the one page will.

The judge’s key finding, on Mr Croally’s analysis, was that the three page will was fraudulent. In the light of this finding it was impossible to conceive of a situation in which the one page will could have been honestly and validly produced. There was no conceivable reason for persons, who had produced a valid one page will, to produce on the very same day a fraudulent three page will, both of which Mrs Ohri and Mr Kumar said were validly executed. The judge commented that it was a puzzling position. In Mr Croally’s submission the three page will was worse than puzzling: it cast a virtually ineradicable shadow of suspicion over the one page will.

The finding by the judge that there was only one meeting at the offices of Gratian & Co on 16 November was not, Mr Croally submitted, supported by the evidence of any witness. Mr Kumar’s evidence was that there were two meetings on that day, one in the afternoon and the other in the evening and that the three page will was produced at the first meeting and the one page was produced at the second meeting.

Mrs Ohri’s evidence was that there was only one meeting at which the three page will was executed. The judge’s findings did not follow the evidence of Mrs Ohri, which the judge said he accepted. In order to reconcile the inconsistencies and anomalies in the evidence of the claimant’s witnesses the judge had produced his own version of events which was not supported by the evidence before him. No reasonable judge could have made the findings made by Evans-Lombe J regarding the execution of the one page will by the Deceased on 16 November 2000.

I am satisfied that, despite the detailed criticisms of the judgment by Mr Croally, there are no good grounds for upsetting the judge’s findings of fact or his conclusion from them that the affirmative evidence adduced by the claimant was sufficient to dispel the suspicions surrounding the one page will. Mr Croally has not persuaded me that the judge reached the wrong decision in holding that the one page will was made with the Deceased’s knowledge and approval of its contents.

There are a number of points to be made.

My first comment is that the suspicions surrounding the one page will were not nearly as serious as those in Wintle v. Nye on which Mr Croally heavily relied.In that case the suspect will conferred substantial benefits on the person who was responsible for taking instructions for it and for preparing it and was seeking to propound it and that person was not even a member of the deceased’s family or a close friend.

In this case there were no grounds for believing that Mrs Ohri, or that either of the witnesses to the one page will or that Mr Nim, as the solicitor concerned, stood to gain anything from the production and execution of the one page will or from conspiring to give false evidence about the circumstances in which it or the identically worded three page will was produced and executed.

The second point is that too much is made by Mr Croally about the three page fraudulent will. The three page will would be a more suspicious document if, for example, the beneficiaries under it were different, but they were not. They were identical, as were two of the three witnesses. As the only difference was in the typing of the translation clause, the probabilities are that that aspect featured prominently in a decision to retype the one page will in order to change its physical form, though not its substantive content. This procedure did not produce a new valid will revoking the one page will as its execution was defective.

The third point is that no court could reasonably expect complete consistency, let alone perfect recollection, by witnesses giving evidence in July 2006 about events which occurred in the course of a few hours in solicitors’ offices in November 2000. The judge took note of the principal flaws in the evidence of Mrs Ohri and Mr Kumar. No principle of law, evidence, life experience or common sense required him to reject the entirety of their evidence as untrue because it was demonstrated that parts of it could not be correct.

The events of 16 November 2000 were probably as fleeting, fragmentary and chaotic as real life often is. This dimension should not be overlooked in the unreal forensic process of attempting, six years later, to recollect and reconstruct what in fact happened in the course of a short visit in the unfamiliar surroundings of the solicitor’s office.

Of course, the challenge to the one page will required a detailed investigation: putting the circumstances of its execution under a microscope (for example, the examination of signatures by a handwriting expert, Mr Jenkinson); exposing inconsistencies and self-contradictions in the recollections of the claimant’s witnesses; and challenging their credibility. At the end of this process, it is for the trial judge, on an objective consideration of all the evidence made available to him, to interpret the evidence and to make sense of it in the light of the impressions that he has formed of the credibility of those who gave oral evidence to the court.

In my judgment, the judge was entitled, looking at the totality of the evidence available, which he recognised fell short of perfection, and the probabilities of the overall situation, to conclude that the evidence was sufficient to satisfy him that the Deceased knew and approved the contents of the one page will. I appreciate that an eldest son in the position of Charan would be upset on discovering that his mother had, without telling him, changed her March will and denied him all the expected benefits and responsibilities under the earlier will. It was natural for him to harbour suspicions that his mother had not knowingly done this.

On closer examination, however, the suspicions proved to be ill founded. The crucial fact is that the one page will, which bore the signatures of the Deceased and two witnesses, was not, in contrast to the will of Mrs Wells in Wintle v. Nye, a very suspicious, or even a particularly surprising, document. There was other credible evidence, which the judge was entitled to accept as truthful, explaining that the Deceased wanted to change her will and to leave her property to two grandsons instead of to her eldest son. The one page will reflected a change of testamentary intentions that was not so suspect or irrational as to require very much in the way of further evidence to prove that the Deceased knew and approve the contents of the one page will.

I would dismiss the appeal against the order pronouncing for the one page will and against the March will.

The appeal against the refusal of the judge to order Charan’s costs to be paid out of the Deceased’s estate is brought on the ground that the conduct of the claimant and the Deceased was the substantial cause of the action. Although the judge gave a separate short judgment on costs his exercise of discretion was based on the findings made by him and the conclusions reached by him in the main judgment. His discretion can only be overturned by this court if he made an error of principle or if for some other reason his order was plainly wrong.

Mr Croally argued, first, that the conduct of the Deceased was a substantial cause of the proceedings. The March will made by her in favour of Charan was valid. She did not tell him that she had revoked it. In fact she had a conversation with him in July 2002 which was consistent with him being the sole beneficiary. The state of papers left at her death was confusing. The one page will was found by accident in an unrelated file of Gratian & Co after probate of the March will had been granted.

Mr Croally’s second point was that the claimant was a substantial cause of the proceedings. The claimant admitted that at the family meeting following the death of the Deceased he failed to mention that he claimed there was any later will than the March will. This resulted in Charan obtaining probate of the March will, selling No 55 and distributing the estate. The claimant then made attempts to prove the three page will, even though it was known to the claimant from May 2004 that Mr Cheema denied ever having signed it as a witness. The claimant did not produce a copy of the one page will that was eventually relied upon and propounded until February 2006.

In my judgment, there are no grounds for interfering with the judge’s decision on costs, either on the ground that he erred in principle in the exercise of his discretion or on the ground that his order was plainly wrong. The case before him at trial proceeded on the basis that the claimant’s case was the product of an elaborate deception to which the claimant, Mrs Ohri, Mr Kumar and Mr Nim were parties. As the judge rejected this case, he was entitled to take the view that neither the Deceased not the claimant were substantial causes of the litigation, which had been pursued to trial by Charan on a basis that he was unable to establish.

I agree.

I also agree.