Bokhari v Harb & Ors

This is a probate action in which the claimant Mr Iftikhar Bokhari ("Mr Bokari") is the executor of and principal beneficiary under the will dated the 11^th November 1988 ("the Will") of the late Emile Harb ("the Testator") who died on the 19^th March 2000. Mr Bokhari claimed probate of the Will and on the 29^th December 2004 it was ordered that probate be granted to him and Charles Thomas Phillips ("Mr Phillips"). The value of the Testator’s net estate today is some £1.4 million.

The second and third defendants Dr Khalil Harb ("Khalil") and Mr Samir Harb ("Samir") in their turn claimed probate of an alleged codicil to the Will dated the 11^th January 1990 ("the Codicil") which (they say) was duly executed in Jerusalem in accordance with English law. Khalil (a dentist) and Samir are the sons of the late Suleiman Harb ("Suleiman"), the elder brother of the Testator. The first defendant Nelly Harb ("Nelly") was Suleiman’s widow. She died on the 20^th December 2004 and by order dated the 29^th December 2004 Khalil represents her estate in these proceedings. I shall refer to Khalil and Samir together as "the Defendants".

No copy of the Codicil was found with the Testator’s papers after his death. The Defendants allege that this is because Mr Bokhari had fraudulently removed it from the Testator’s safe and destroyed it. Mr Bokhari alleges that the Codicil was not found because it did not then exist and that the Codicil was a subsequent fabrication by the Defendants.

The Testator was born in Jerusalem on the 25^th February 1927. His family is Arab Christian and Arabic was his first language. In 1948 he moved to England and lived the rest of his life here. English became his first language. He died in England unmarried and without issue on the 19^th March 2000. He was cremated in England and his ashes were taken to Jerusalem for burial.

The Testator was a self made wealthy businessman who held 99 out of the 100 shares in Emile Harb Limited ("the Company"), a small private company with 100 issued shares which carried on the business of fitting out shoe shops. The other share was held by Samir. The Company has since the death of the Testator gone into insolvent administration.

The Testator had no wife or children and was generous to his family and in particular Suleiman’s children. But he thought his family was more interested in his money than in him, and he said so many times. Nonetheless he remained in regular contact with his family, made visits to them in Greece and Jerusalem and Khalil regularly telephoned him.

Mr Bokhari is a chartered accountant. From May 1976 Mr Bokhari provided accountancy services for the Company and the Testator and became a close friend and confidant of the Testator. In January 1999 the Testator appointed Mr Bokhari a director and company secretary of the Company. On the death of the Testator Mr Bokhari became managing director of the Company.

The Will was prepared for the Testator by Mr Phillips, the principal of Phillips & Co, solicitors. The Will is in English and in English form. By the Will the Testator appointed Mr Bokhari, Mr Phillips and Mr Phillips’ associate solicitor Ms Catherine Por ("Ms Por") to be his executors. Ms Por renounced probate on the 20^th June 2002. Mr Phillips stated his intention to renounce probate but disappeared to China without doing so and cannot be traced. There is before me an unopposed application for termination of his appointment as executor.

By the Will the Testator gave to his executors his shares in the Company upon trust to pay: (1) remuneration of £500 per calendar month to each of his executors so long as they continued to carry on the business of the Company; (2) a minimum of £500 per calendar month and (provided that the profits were sufficient) a further £10,000 per annum to his friend and companion Ms Suzanne Beevor ("Ms Beevor") and the annual contribution of £5,000 to her pension plan until the earlier of the sale of the business or her reaching retirement age; and (3) (in clause 3(2)(d) and in conjunction with clause 5) the balance of the net income until sale and the net proceeds of sale as to 40% to Ms Beevor, as to 50% to Suleiman and as to 9% to Mr Bokhari. (The Will was so drafted on the basis that Samir, as holder of one of the 100 shares in the Company, was entitled to the other 1% of income and net proceeds). The Testator went on to give to Ms Beevor two properties provided that she retain and maintain one for the use and benefit of the Testator’s family and he also gave her his shares in various companies. By clause 10 he gave Samir his premium savings bonds, the proceeds of his three life policies and his Post Office investment bonds. He gave the residue of his estate to Mr Bokhari. By deed dated the 5^th March 2002 Ms Beevor disclaimed the gift of the two properties. The provision of remuneration of £500 per month for Mr Phillips who prepared the Will and the provision of the same sum for Ms Por are open to serious question since the Testator at no time had any independent advice.

Suleiman died on the 6^th January 1990. Mr Ian Harris ("Ian") and his brother Mr Eric Harris, former employees of the Company, gave evidence (which I accept) that the Testator told them that he did not wish to attend Suleiman’s funeral: he said that he did not wish to see his family there because they were only interested in his money. Ian however persuaded him to go to the funeral on the ground that this might be his last chance to see his family there. The Testator accordingly flew to Israel on the night flight of Tuesday the 9^th January 1990 arriving early on Wednesday morning the 10^th January 1990 in time for the funeral, which took place later the same morning.

In accordance with Arab Christian tradition the funeral was followed by three days of mourning at Suleiman’s home ("the Home") during which members of Suleiman’s family and friends visited the Home to offer their condolences and sat with and talked to the mourners. The Testator, as the senior member of the family, was principal mourner. On each day the Testator as principal mourner stood at the front of the line of mourners to greet and receive condolences from visitors (in the words of Khalil) "from morning to evening in accordance with our customs". The mourning was interrupted for a period when during the evening of the 10^th January 2000 Khalil was taken ill and went to hospital. The Testator spent some time with him in hospital.

The Defendants’ case, based on the evidence of a lawyer Mr Nabil Gheath ("Mr Gheath"), a businessman Mr Maher Kaddoumi ("Mr Kaddoumi") and a lecturer in Chemistry Dr Isaq Naseredin ("Dr Naseredin"), is that: (1) after the funeral the Testator by chance met Mr Gheath at the Home and learning that he was a lawyer made an appointment to meet him later the same afternoon at his nearby offices; (2) they met at Mr Gheath’s office, which was a few hundred yards from the Home that same afternoon and the Testator gave Mr Gheath oral instructions for the Codicil; (3) the following afternoon the Testator again attended at the offices accompanied by Mr Kaddoumi and Dr Naseredin, and executed the Codicil and his signature was attested by Mr Kaddoumi and Dr Naseredin ; and (4) until April 2000 no member of the Testator’s family, and in particular neither Khalil or Samir, knew anything about the instruction of Mr Gheath, or the preparation or execution of the Codicil.

The Codicil (as translated into English) reads as follows:

In March 1995, following intervention by the Law Society into the practice of Phillips & Co, the Testator and the Company instructed Mr Andrew Whatley ("Mr Whately") practising as Whatley & Co as their solicitor in place of Phillips & Co. In May 1995 the Testator asked Mr Whatley for his advice on the Will. Before that date the Testator had erased in red ink clause 10 of the Will (containing the bequest to Samir). The Testator explained to Mr Whatley that he had erased the clause, and still wanted the clause erased, because he had had a difference of opinion with Samir and had no confidence in him and that he was uncertain as to the benefits (if any) which he wished to confer on Samir. The Testator evidently considered that the erasure was effective to revoke the bequest. The Testator said that he wished to make a new will when he had sorted out various other matters and had thought a little more about it, and he instructed Mr Whatley to draft a codicil which was to cover the situation in the interim. In particular he wished to cancel the gift to Suleiman of a half share in the Company.

Mr Whatley thereupon prepared a draft codicil which accorded with the Testator’ instructions. The draft provided that Mr Beevor and Mr Bokhari should be his executors and (by way of amendment of clause 3(2)(d)) that the balance of the net income until sale and the proceeds of sale of the business should be held as to 76% for Ms Beevor, 15% for Khalil and 9% for Mr Bokhari. The draft otherwise confirms the Will. The Testator however never executed the draft.

On the 14^th May 1999 Mr Issa Tahhan ("Mr Tahhan"), a friend of the Testator living in England, hosted a dinner attended by the Testator, Khalil, Mr Kaddoumi and Dr Naseredin. According to the evidence given on behalf of the Defendants at this dinner the Testator stated that he was proposing to make a new will and wanted Khalil to be an executor. In fact, if the Codicil had been duly executed, the Testator had already appointed him an executor. No such new will was executed.

On the 2^nd March 2000 the Testator again consulted Mr Whatley about making a new will relating to a specific property. The new will was not executed.

The Testator died on the 19^th March 2000 and immediately the Harb family sent Samir to England to safeguard the family’s interest in the Testator’s estate. He was present with Mr Bokhari and Mr Whatley when the Testator’s safe at the Company’s office was opened. There was found in the safe the Will. There was no codicil. Not merely was the Codicil not in the possession of the Testator at the date of his death, but he never referred to it any time in any conversation or document. Mr Samir and the Harb family were furious about the terms of the Will. They considered that the estate or least the bulk of the estate should remain in the family and they challenged the Will. Mr Tahhan introduced the Defendants to the firm of solicitors TMK of Basildon and the Defendants instructed TMK to act on their behalf in these proceedings. On the 15^th May 2000 TMK on behalf of Samir wrote to Mr Whatley representing Mr Bokhari regarding the Will and the Testator’s estate. The first occasion on which the Defendants made disclosure of the existence of the Codicil was by TMK’s letter dated the 17^th October 2000. These proceedings were commenced on the 23^rd October 2002.

A few days before the trial commenced TMK ceased to act as solicitors for the Defendants for reasons which were not satisfactorily explained. The reason was certainly not lack of funds. In their place a Mr Khoury an Israeli lawyer attended the trial as a litigation friend. The Defendants with the consent of Mr Bokhari requested me to allow Mr Khoury to assist them. I felt impelled in the interests of justice to accede to the Defendants’ request to allow him to cross-examine the Israeli lawyer Ms Ronit Mehr ("Ms Mehr") who was called on behalf of Mr Bokhari. Her evidence was of great importance and I was told that the Defendants were quite unable to cross-examine Ms Mehr. Ms Mehr was patently an honest witness and the cross-examination (which extended to asking her whether she dyed her hair) was not particularly helpful. Khalil in fact did cross-examine other witnesses and his cross-examination was of greater value.

I shall confine my attention in this judgment to the witnesses and evidence which I consider to be of particular relevance.

Mr Gheath gave two versions of the circumstances in which the Codicil was prepared and executed. The first was given on the 17^th March 2003 in a telephone conversation with Ms Mehr, an associate with the firm of Tytunovich & Co, Advocates of Ramat Gan, Israel. Ms Mehr’s firm had been instructed by Mr Whatley to obtain for the purpose of this action Mr Gheath’s answers to a number of questions relating to the Codicil and for this purpose spoke to Mr Gheath for some thirty minutes on the telephone. Mr Gheath willingly afforded those answers and Ms Mehr made a contemporaneous note of what he said which she produced at the trial. Ms Mehr explained to Mr Gheath that she required the information in order to prepare an affidavit which she would ask Mr Gheath to check and correct and (when corrected) sign for use in this action. Mr Gheath expressed willingness to do so. Ms Mehr prepared the affidavit and sent it to Mr Gheath to correct and sign. On receipt of the affidavit Mr Gheath was willing to sign the affidavit subject to making certain minor corrections. But before he did so, he told Khalil what had happened and what he intended to do. Khalil took the strongest objection to the course proposed. Khalil told Mr Gheath that he was either on Mr Bokhari’s side or the side of the Harb family and, if he was on the side of the Harb family, he could only give evidence for the Harb family and could not give evidence for Mr Bokhari. Faced with this objection, Mr Gheath decided that he had to refuse to cooperate further with Ms Mehr.

In his first version of events given to Ms Mehr, Mr Gheath said that:

In his second version of events given in his evidence Mr Gheath told me that:

I should briefly set out the relevant evidence of the other witnesses. Both attesting witnesses Mr Kaddoumi and Mr Nasereddin made very short affidavits of due execution in practically identical terms, stating no more than that they had long been friends of the Testator and that the Codicil had been duly executed at Mr Gheath’s office on the 11^th June 2000. Only Mr Kaddoumi attended the trial and accordingly could be cross-examined. Mr Kaddoumi gave me as the explanation for why he did not at any time disclose the existence of the Codicil even after the Testator’s death, that the Testator had told him to keep the Codicil secret and that he thought that this applied even after the Testator’s death.

Khalil and Samir gave evidence that they knew nothing of the Codicil until a date in April 2000 when Mr Gheath handed his copy of it to Khalil, and (according to Samir) Khalil then faxed a copy to Samir in England for the purpose of his using it in the protection of the family’s interests in the Testator’s estate. As I have already said, correspondence thereafter proceeded between TMK and Mr Whatley on the basis that the Will stood alone and that there was no codicil until October 2000 when they disclosed the existence of the Codicil.

No handwriting expert was called. The fact that the alleged signature of the Testator on the Codicil was in Arabic would have created difficulties for an expert, for the Testator did not ordinarily write in Arabic and no recent copy of such writing was available. He invariably conducted his affairs in English.

The fundamental question in this case is whether I should accept the evidence of execution of the Codicil of Mr Gheath and Mr Kaddoumi (supported by the affidavit of Mr Naseredin). On the face of it the Codicil is duly executed though there is no attestation clause and accordingly there is a (somewhat weak) presumption of due execution.

On the other side there are three exceptional features in this case. The first is the fact that Mr Gheath has given two contradictory versions of the execution of the Codicil to Ms Mehr and to the court. Second is the fact that the Testator never made any reference to the Codicil after it is alleged to have been executed even when he would reasonably have been expected to do so (and in particular when in 1995 he gave instructions for preparation of a codicil in England) and the Codicil was not to be found amongst his papers when he died. The third is the failure of Khalil and Samir to disclose its existence (if it existed) between April and October 2000, which is inexplicable if indeed it did exist in April 2000.

I turn to the first of these features. Ms Mehr was plainly an honest and careful witness. I accept her evidence that she acted professionally, that she asked her questions fairly and that she put no misleading questions and no pressure on Mr Gheath as to the answers which he gave. I am satisfied that, subject only to minor errors (e.g. as to identities of individuals unknown to her) her account of the conversation with Mr Gheath is accurate. I accept her evidence that Mr Gheath: (a) was capable of conversing in Hebrew sufficiently to understand fully what she said; (b) fully understood what she said; and (c) communicated what she heard and recorded. I have taken into account that Ms Mehr telephoned Mr Gheath without writing any previous letter indicating the questions which she wanted to ask and that the relevant events had taken place 13 years previously. But having seen and heard Mr Gheath in the witness box, I am satisfied that he is a person who is fully capable of requesting time to consider a question asked of him if he needs time and of qualifying his answers or declining to answer. I am satisfied that, subject to minor corrections, on receipt and reading the affidavit he was willing and able to swear it on the terms in which it stood, and only declined to do so because of the objection of Khalil.

As it seems to me Khalil insisted on a second revised version because he realised that Mr Gheath’s first version did not make the Defendants’ case credible. Four points stand out. (1) The first is that if (as Mr Gheath has said) Khalil and Samir had on each occasion accompanied the Testator to Mr Gheath’s on the 10^th and 11 January 2000 and if the Testator had wanted them to know the terms of the Codicil, they would at all times have known of the execution of the Codicil and they would have put it forward as the basis of their claim to entitlement to a substantial part of the estate as soon as they knew that the Testator had died. (2) The second is that it would also have been somewhat remarkable if all three of them (the Testator, Khalil and Samir) the principal mourners all left the Home on the afternoon of the two first days of mourning. (3) The third is that the timing of the Testator’s visits to Mr Gheath’s office required amendment because the Testator was only in Jerusalem a short time and Mr Gheath only worked on the 10^th and 11^th of January. The revised version accordingly provided only for visits only on the 10^th and 11^th January 2000. (4) The fourth is that, since the family had no copy of the Codicil, the number made was reduced from three to two of which the Testator obtained one and Mr Gheath retained the other. These four considerations required adoption of a revised account to the effect that Khalil did not introduce the Testator to Mr Gheath, that the Testator alone of the family attended Mr Gheath at his office on the 10^th and 11^th January 1990, that the Testator executed the Codicil in duplicate and that the Testator did not wish his nephews to know its terms.

I turn to the absence of any reference by the Testator to the Codicil after it is alleged to have been made. If the Testator had made the Codicil, he would surely have preserved his copy with the Will in his safe and disclosed it to Mr Whatley in 1995 when he gave instructions for a new codicil and indeed in 2000 when he consulted Mr Whatley about a new will. The Defendants seek to explain the fact that the Codicil was not found in the Testator’s safe at the date of his death as attributable to the theft and destruction of the Codicil by Mr Bokhari. There is no shred of evidence to support this allegation. It is theoretically possible that the Testator destroyed the Codicil when in his possession with the intention of revoking it. But in the circumstances of this case the more likely probability is that the Codicil never existed.

I turn finally to the failure of Khalil and Samir to disclose the existence of the Codicil until October 2000. Common sense says that they would disclose it as soon after the death of the Testator as they knew of its existence. If Mr Gheath’s first version of events were accepted, disclosure would have immediately followed the Testator’s death. If Mr Gheath’s later version is accepted, the Defendants must surely have disclosed the Codicil as soon as they came to know of it in April 2000. The Defendants have in their evidence given no explanation, and certainly no satisfactory, explanation, for the delay in disclosure until October 2000. Khalil tried to suggest that he was too busy. This is hardly credible in a case where the family plainly attached the highest importance to obtaining a substantial part of the Testator’s estate, even to the extent of sending Samir to England and instructing TMK. The explanation of Mr Kaddoumi (plainly an intelligent man) for his non-disclosure of the Codicil, (that he understood the Testator not to wish it to be disclosed even after his death) is totally incredible. The obvious explanation in my judgment is that the Codicil did not exist until October 2000 or very shortly before that date.

I did not find Mr Gheath, Mr Kaddoumi, Samir or Khalil satisfactory or convincing witnesses. There are many improbabilities in their stories; I need only refer to four:

I reject the Defendants’ bold assertion that the evidence given by the Claimant’s witnesses consisted of lies and fabrication. The Defendants are free with such allegations. That allegation can only honestly and properly be made in respect of the evidence given on behalf of the Defendants. I am driven to the conclusion that the Codicil was never executed by the Testator but was concocted by the Defendants, the attesting witnesses and Mr Gheath in or shortly before October 2000 in order to substantiate what the Defendants considered to be a strong moral claim to a substantial part of the Testator’s estate. Khalil and Samir were close friends of the attesting witnesses and bound by close bonds of loyalty to each other and these bonds have plainly led to their joining forces to maintain this false claim. The remarks of Khalil to Mr Gheath when Mr Gheath had in mind signing the draft affidavit sent to him by Ms Mehr support this view, though the view stands without attaching weight to those remarks.

I accordingly refuse probate of the Codicil and order that the appointment of Mr Phillips as executor be terminated.