Selvarajah v Selvarajah & Ors.

This is a dispute over the validity of a will. It is especially unusual because there is no evidence as to how the will was created; all or some of the matters which the court would usually have evidence before it such as who was the author, how were instructions given (if not prepared by the testator himself), when and in what form any instructions were given, whether there were various drafts, or whether it was professionally drawn (as submitted by the defendants) are absent. There is no will file. There are no instructions as to execution. There appears to be no account or fee for the creation. If homemade – by the testator or someone else – there is no metadata establishing the author(s), history, amendments, dates and so on nor the like if professionally drawn. It appears, for reasons I will come to, to have been created at least in part from a precedent influenced by the laws of another jurisdiction. There are also certain other features, some unusual, some suspicious, that I will come to.

The late Mr Selvarajah Sellathurai (“the Deceased” or “father”) died in hospital on 11^th September 2016, aged 65, from multiple organ failure, pneumonia and crypogenic cirrhosis. His wife, the first defendant, (“Mrs Selvarajah” or “mother”), has survived him. They were of Sri Lankan origin and Tamil speakers. They lived together at 36 Northwood Gardens, Ilford, Essex, (“Number 36”) where Mrs Selvarajah still lives. The Deceased’s will is dated 8^th August 2016 (“the Will”). The dispute as to its validity has sadly exacerbated the already present deep divisions between the claimant and her siblings. I will refer to the siblings by their first names with no disrespect intended.

I will now set out the allegations as appear in the Particulars of Claim (not drafted by Mr Bennion-Pedley). These are that the Will is invalid as at [4.1] it is pleaded that “…at the time at which the alleged will was created, being a date not earlier than 28 August 2016, the deceased was unwell and lacked any capacity to understand to execute” (sic). At [4.2] it is alleged Srimila “…knowing the deceased did not have a will, caused the alleged Will to be drawn up and purportedly executed”, and at [4.3] that Oormila does not know if Srimila fabricated her father’s signature or guided his hand.

Then at [4.4] it is alleged that the Deceased had no knowledge of and did not approve the Will, that he did not in fact execute it and “…could not have intended his signature to give effect to the alleged will for the purpose of s.9” At [4.5] it is pleaded one of the “witnesses” was not present when his signature was affixed to the Will.

Oormila also at [2 (vii)] of her statement of 15^th October 2021 said “The deceased’s reading and writing English was limited. He would not have understood the 2016 Will without an interpreter anyway, even if he did give instructions anytime when he could, which is denied.”

In her statement of 14 March 2022 Oormila disputed the value of her father’s estate saying that the freehold residential properties alone – Numbers 36 and 39 – were worth a total of £1,478,000 as at [10g] she states “I do not believe that my father had outstanding mortgages and/or debts owed to third parties. In any event, my father had life insurance policies on all his loans and mortgages.”

She also alleges that there are properties and land in Sri Lanka, gold jewellery, a Range Rover, a business – namely the Temple, and other leasehold properties in the UK and also bank accounts in Sri Lanka. She concludes by stating that it is her “…legitimate and reasonable expectation to inherit same and equal value as my other siblings…from the estate of my late father.”

All of Oormila’s claims are denied in the Defence which pleads in the alternative Oormila is barred from the relief she seeks by reason of her own laches, acquiescence and delay.

Deputy Master Arkush at a hearing in July 2021 asked Mr Bennion-Pedley what, if Oormila succeeded in her claims and an intestacy arose, was the value of her share. He replied that it was about £9,000 (being a one fourth share), which remained the position at trial. Deputy Master Arkush expressed great surprise at the complete lack of proportionality in that this matter was listed for a costly 3 day trial.

Mr Benninon-Pedley submits as to proportionality there are points of principle here, with this family torn apart, noting that the effect of revocation would be an intestacy by which Mrs Selvarajah would receive a substantial proportion of the estate. But he adds that this is not just about Oormila’s entitlement; it is ensuring a forged will is not used as a device to exclude Oormila from her reasonable expectations upon the subsequent death of her mother (I note not father). I consider her approach unrealistic in all the circumstances in view of remoteness and agree with Deputy Master Arkush, noting Oormila’s costs budget of £52,000 and that of the Defendants of £60,000 - sums way out of proportion to the possible gain have been expended.

Mr Gun Cunninghame submits that as Oormila and Muralitharan are in business together her interest is to stymie the possession proceedings brought by Srimila and Srikumaran, which is the key to understanding Oormila’s motivation in bringing these proceedings.

There is no issue between counsel as to the applicable law. Mr Bennion-Pedley abandoned Oormila’s allegations as to lack of testamentary capacity during his closing submissions so I need not cite the authorities he relied upon. He accepted that the burden is upon Oormila to make out sufficient grounds to revoke the grant that is in existence as far as her allegations of forgery are concerned.

Section 9(1) of the Wills Act 1837, as amended by section 17 of the Administration of Justice Act 1982 provides:

“No will shall be valid unless

(a)

it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)

it appears that the testator intended by his signature to give effect to the will; and

(c)

the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d)

each witness either

(i)

attests and signs the will; or

(ii)

acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness),

but no other form of attestation shall be necessary.”

Mr Gun Cunninghame cited Neuberger LJ (as he then was) in Channon v Perkins [2005] EWCA Civ 1808 at [7-10], referring to Wright and Sherrington to which I turn later said:

“7.

There is good reason for the requirement that one must have “the strongest evidence” to the effect that a Will has not been executed in accordance with section 9 when, as in this case, it appears from the face of the Will that it has been properly executed in all such respects and where there is no suggestion but that the contents of the Will represented the testator’s intention. Where a Will, on its face, has been executed in accordance with section 9, and where there is no reason to doubt that it represented completely the wishes of the testator, there are two reasons, one practical and one of principle, why the court should be slow, on the basis of extraneous evidence, to hold that the Will was not properly executed.

8.

The practical reason is that oral testimony as to the way in which a document was executed many years ago is not likely to be inherently particularly reliable on, one suspects, many occasions. As anyone who has been involved in contested factual disputes will know, people can, entirely honestly and doing their very best, completely misremember or wholly forget facts and events that took place not very long ago, and the longer ago something may have taken place the less accurate their recollection is likely to be. Wills are often executed many years before they come into their own.

9.

Furthermore, when one is dealing with the recollection of witnesses to a Will, one is, as my Lord, Mummery LJ, pointed out in argument, often, indeed normally, concerned with the evidence of persons who have no interest in the document that has been executed, and therefore to whom the signing of the Will would not, save in (un)usual circumstances, have been of particular significance.

10.

The principled reason for being reluctant to hold that a Will, properly executed on its face, representing the apparent wishes of the testator, should be set aside on extraneous evidence, is that one is thereby declining to implement the wishes of the testator following his death. That would be unfortunate, especially in a case he has taken to ensure, so far as he can, that his wishes are given effect in a way which complies with the law.”

Whilst not cited to me during trial, in the joint authorities bundle is Sherrington v Sherrington [2005] EWCA Civ 326. I have had regard to Peter Gibson LJ’s reference at [40] to what Lord Penzance said in Wright v Rogers (1869) LR1 PD 678:

“The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills.”

Then at [41]:

“In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator’s signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation cause and, underneath that clause, the signature of the witness.”

“Strongest evidence” was also considered by Arden LJ in Channon where at [45] she said:

“So the question of what constitutes the “strongest evidence” for the purposes of this case remains to be explored. As I see it, there is a sliding scale according to which evidence will constitute the strongest evidence in one case but not in another…[it]…will depend upon the totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the hurdle to be crossed to meet the requirement of showing the “strongest evidence”, and the stronger that evidence will need to be.”

She continued at [46]:

“Likewise, if the evidence of due attestation is weak, then the burden of displacing the presumption as to due execution may be more easily discharged and the requirement to show the strongest evidence satisfied. Allegations that were not made, or were not pursued, and mere suspicion, have to be put on one side.”

In his closing submissions Mr Bennion-Pedley relied on the well-known paragraphs 15-22 in the judgment of Mr Justice Leggatt (as he then was) in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd and Anr [2013] EWHC 3560 (Comm), and submits I should pay particular attention to unconscious bias and the effect of present belief on past memory, in view of the antipathy of Sharmila and Srimila to their sister. Further, Srimila with her long term friends Ms Ali and Ms Syed all have to answer questions of impropriety, so they cannot give evidence with any degree of impartiality.

Therefore Mr Bennion-Pedley submits it is especially important here to assess the evidence with a primary focus on contemporaneous evidence and known or provable facts. Mr Gun Cunninghame submits this is a binary issue in that either Ms Ali and Ms Syed are telling the truth or they are not; if they are, due execution is proved, the matter ends there and the expert evidence takes the matter no further forward.

As to civil cases being determined in accordance with the civil standard of proof on the balance of probabilities, Mr Gun Cunninghame cited Treasury Solicitor v Doveton and Anr [2008] EWHC 2812 (Ch) where Mr Mark Herbert KC sitting as a Deputy Judge of the Chancery Division reviewed judicial statements as to the principles regarding the standard of proof at [13] and the judgment of Richards LJ in R(N) v Mental Health Review Tribunal [2006] QB 468:

“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”

EVIDENCE – WITNESSES OF FACT

I heard seven witnesses of fact. Below I set out my view of them, in the order in which they appeared. Mr Neethyrajah Thambipillai, who as I mentioned above is the brother of Mrs Selvarajah, and resident in Canada, made a statement on behalf of Oormila. He was due to give evidence remotely but Mr Bennion-Pedley on the first day of trial said he was not responding to contact and so did not appear. Accordingly I have had no regard to his evidence.

Oormila gave her evidence in a quiet and certain manner but was defensive and reluctant to accept matters even when confronted by independent documentary evidence. For example, when shown the Official Copy of Register of Title for Number 36 she would not accept that property had a charge upon it to secure money – she kept saying she had not had a copy of the estate accounts, which she kept repeating throughout her evidence. This truculence continued when she was then asked about Number 39 and whether she accepted that that had been transferred within the family. Her reply was “That is what she [Srimila] claims. I don’t have accounts”.

I take no notice of her evidence as to lack of testamentary capacity due to this being conceded. As to her father’s lack of understanding of English, when questioned about him conducting business in English she said “There is no question of that. The question is whether he had legal knowledge. My father could not understand this without an interpreter, due to the content …[it was]…too difficult for a lay person to understand.” But in the hearing bundle are legal documents such as leases and a commission agreement signed by him. I find it unlikely that the Deceased could understand one type of legal document but not the Will. I have to conclude that, again, Oormila is giving partial evidence to suit her wide-ranging attack upon the Will.

In summary therefore I place little or no weight upon her evidence unless it is supported by independent corroboration. Having said that, her evidence did not go to any of the issues. Mr Bennion-Pedley did not rely upon any of her evidence in his closing submissions.

Srikumaran explains in his statement how he was living in Bristol in 2015. In his oral evidence he said he had a job and career there which he was he was very happy with. His father told him how Oormila was:

“…increasingly hostile towards him, that he had told her to get out of the house and they were no longer on speaking terms. He also told me that her husband, Nirmalan, was violent and had attempted to throw a chair at him. My father told me that he would not want either of them at his funeral if he died. I was still on speaking terms with the Claimant and tried my best to try and reconcile her relationship with our father.”

He then said he had set up the sibling WhatsApp group in July 2016 when it became clear that their father may not survive without a transplant. Oormila, he said, was not involved during their father’s ill health and “…made no efforts to assist him in any way.” In his oral evidence he was clear, apologetic when he got something wrong and as helpful as he could be to the court. He clearly regretted the deep divide in the family, saying at one point:

“I have tried and failed for several years to build bridges between my sisters and it’s been a struggle, it’s been really difficult for me.”

He was also certain and direct – for example when cross examined regarding the estate accounts and asked if he could see that refusing to provide them to Oormila caused distrust and suspicion, he readily accepted that. When it was put to him that this was not very helpful he said “I didn’t intend to be helpful”. Mr Bennion-Pedley said Oormila was a beneficiary which Srikumaran immediately refuted.

As to the estate generally, he emphasised that his main concern following discussions with his mother was to resolve the debts. That directly conflicts with Oormila’s statement that the properties were debt free. He explained that he had no interest in moving back to London but he did so to take on the mortgage and care for his mother.

Mr Bennion-Pedley said in closing submissions that Srikumaran “…came across as a genuine person saddened by the various rifts and infighting between his sisters. Careful to say he does not know whether the Will is genuine and perhaps careful not to ask.” But in my note of his cross examination records he was asked “You don’t know yourself if the Will is genuine” and his reply was “I’ve seen it. That’s my father’s signature.” That in my view answers Mr Bennion-Pedley’s question.

In summary I accept all Srikumaran said. He was a diligent, honest and open witness. I also found his explanation of medical terms especially helpful.

I was told at the start of trial that Ms Syed was too ill to travel from her home in Birmingham to London. Oormila’s solicitors, Raj Law, did not object to her giving evidence remotely but understandably required medical evidence. I was concerned as she was a crucial witness and remote evidence is rarely as satisfactory as live evidence. After a short adjournment I was informed that Ms Syed had tested positive for Covid 19 which was accepted by Raj Law, so she gave evidence remotely.

In her statement she explained how she had known Srimila since 1998, lived just a few minutes away from Number 36 until she moved to Birmingham 5 years ago and had undertaken an internship with the Deceased (whom she called “Uncle”) at his estate agency. She said that she knew Srimila was coming to the UK in August 2016 on a visit from India so that their mutual friend Asma and she decided to meet Srimila at Number 36. Eventually the 8^th August was agreed upon. Her account of witnessing the Will is rather short of the detail usually included:

“When we reached the house Uncle welcomed us warmly as Srimila was not there yet. He asked generally about our married lives and family. Uncle then asked us whether we could witness his Will as there were two of us. He specifically asked that we did not mention it to anyone so that he could tell his family at the right time. After Uncle signed his Will, both myself and Asma signed in the witness section. We did not mention this to Srimila when she reached home with her husband, Hari, and son, Jai.”

In cross examination Ms Syed said she ran her own digital marketing business, had known Srimila for 24 years, and was in regular contact with her and Ms Ali by text and WhatsApp, using the latter in 2016. She confirmed she had changed her mobile number and telephone a few times since 2016, that she had been asked for her text and WhatsApp messages from then but she did not have any.

Ms Syed said she and Ms Ali together saw Uncle sign the Will which they both then signed. This took place in the living room. She was unsure whether Mrs Selvarajah was at home at the time, but it was in the evening. Uncle appeared his usual self, and she had not seen him for a while. Asked about his appearance she said “I remember thinking he had lost a bit of weight. It can happen in old age.”

She could not recall what he was wearing but said the Will was on a dining table at the back of the living room. She did not read anything but just signed her name. She could not recall which of her or Ms Ali signed first. She confirmed it was her signature but she could not identify the manuscript date on the Will, nor whose pen she used. She was careful in her answers; as to the pen she said she must have used one given to her, but volunteered she could not recall if it was passed to her or she took it off the table.

When asked why she hadn’t told Srimila of the Will when he died, she said, in a very natural and open way, that “I did tell her after he died. A few days later or after the funeral. She said to me she’s already found the Will.” She was certain that the Will had not been signed before they witnessed it, and that Uncle had signed first. At the end of her evidence she apologised for not being able to attend in person.

Unfortunately the remote connection to Birmingham was poor. Ms Syed had to ask for questions to be repeated and that poor connection made hearing and giving evidence regrettably more difficult than it would have been in person. Having said that, Ms Syed gave straight forward answers and clearly wanted to help the court, by expanding answers beyond the short responses that she could have given. She made it clear when she could not recall matters, which was understandable given that the execution of the Will had taken place over 6 years before. Accordingly I accept her evidence.

Mrs Ragu is a niece of the Deceased. In her statement she says they lived together as a big family for many years and she was very close to him. In her very short statement she sets out two important matters; first that her uncle:

“…expressed that he wanted to ensure my aunty, his wife, was financially secure as she had always remained a housewife throughout their marriage. He told me he wants to leave everything to his wife.”

The second was:

“I visited my uncle in hospital at the end of August in intensive care at King George Hospital with my husband Ragu. I remember asking him whether he made the will and he confirmed he had.”

In cross examination she confirmed that she was unaware of her uncle owning Number 39 and that she did not discuss financial matters with him. She was however certain that he told her he was going to leave everything to his wife. Mr Bennion-Pedley suggested she was mistaken in that the conversation was to the effect that the Deceased would leave his wife financially secure, not that he would make a will. Mrs Ragu said her uncle told her he was going to make a will leaving everything to his wife. Mr Bennion-Pedley observed that neither Srimila nor Srikumaran were aware of that and asked her to explain why he had kept that a secret and told her and not his children. She could not explain why, which is understandable, but her evidence in this respect was not wholly convincing.

Mr Bennion-Pedley then turned to the hospital visit. Here her evidence was far more detailed. She explained that this was not her first visit but on 29^th August she with her husband went to see her uncle. There is no dispute that they did visit then. Mrs Ragu said she was told by Srimila or a nurse not to spend too much time with him. His eyes were shut when they were shown in. When he did open them, he was very happy to see them both, especially as, she said, he liked her husband very much and had not seen him for years.

Speaking in Tamil, he asked her to call Srimila in. She asked her husband to do so and when he left asked the Deceased if he had written a will to which he said yes. Mr Bennion-Pedley put to her that did not happen which she said it did – he took off his mask to do so.

I found Mrs Ragu, whilst quite clear at times in her evidence, to occasionally be uncertain, especially when she was being questioned as to why the Deceased would tell her about his intent to make a will and not his children as I mention above. Broadly, I accept what she said, but with reservations.

Srimila in her statement described how her father was a great man who spent his last decade giving back to the local Hindu/Tamil community, as shown by the attendance of over 1,500 people at his funeral. After marriage in 2011 she said she moved out of Number 36 and began travelling back and forth to India, and that Oormila after she married in 2010 lived in India with her husband until about 2014, when she moved back to live with Sharmila.

Then her father told her of his concerns as to Oormila’s behaviour towards him, and how he felt Sharmila’s husband, Muralitharan, was bullying her. He also said to her that he felt Oormila, Muralitharan and Nirmalan orchestrated their actions to make matters difficult in the running of Shay Services, and that despite his illness Oormila did not try to assist or comfort him. These family disputes worsened when at the funeral Oormila was adamant that Nirmalan should carry her father’s coffin despite the family’s wishes.

As to the Will Srimila said this:

“While dealing with my father’s paperwork after his death, I found my father’s Will. I was surprised my father had not told the family he had made a Will. In hindsight, I believe my father did not disclose to anyone that he had made a Will leaving everything to our mother as he must have expected some pressure from the Claimant, Nirmalan and Muralitharan. He would not have wished for further family issues to arise while he was unwell.”

At the outset of cross examination she was asked if she had drafted the commission agreement regarding Shay Services. Her reply was certain and to the point: “No. My father never referred any legal matter to me. He sees me as a little child.” That immediate and heartfelt response was, I consider, truthful, and typical of her evidence.

Her intimate involvement in her father’s care and well-being was clear – when questioned as to events on the day the Will was executed, 8^th August 2016, and her father’s attendance at hospital for most of that day, Mr Bennion-Pedley said he would expect a man in his condition to be in bed. She replied that she didn’t think so, as he drove all the way to the hospital, and back home too – she accompanied him and was there all day. She explained she then left and went to her husband’s cousin’s house, some 10 minutes away, it being traditional that she and her husband would go there together, and that he was returning to India the next day.

As to the arrangements to meet Ms Syed and Ms Ali that evening, she thought they were made by telephone, as opposed to text or WhatsApp. In any event, she said she had no messages from that day, 8^th August. She was then questioned about a change in her evidence as to when she found the Will – in her statement, whilst no date was stated, it chronologically appeared after the funeral but in oral evidence she said it was before. She did not accept that there was any change in her evidence.

Srimila denied she had prepared the Will, saying that she found it in files near the table. She explained her father asking the witnesses to his will to not disclose it to anyone was in her view a cultural thing. Then she was asked if her father had asked her to keep quiet about a will, whether she would do so? She replied that maybe he was planning to get well. I thought that response unnecessarily glib.

In summary, Srimila was careful, clear, and direct albeit somewhat glib when giving her evidence. I accept what she said.

Sharmila was not called by the Defendants but on the first day of trial Mr Bennion-Pedley applied to issue a witness summons requiring her attendance, as Raja Law were one day late in issuing it. Mr Bennion-Pedley submitted that Sharmila could give important evidence as to whether the signature on an original letter from the Temple, dated 19^th July 2016, being Item 12 examined by the handwriting experts for their reports, was that of her father or whether, as Oormila said, Sharmila signed this on behalf of her father as she did with other documents.

The Defendants’ expert opined that if it was not a genuine signature then his opinion of moderate evidence that the Will signature was genuine would be unsustainable and his opinion would change to inconclusive. Mr Gun Cunninghame objected as he said this was speculative and fishing, it should not have been left to the last minute, and only evidence in chief could be obtained. I gave a short extempore judgment permitting the issue of the summons, my reasons including the limited effect on costs, it was just one day out of time, the evidence could assist me and I could see no prejudice in so doing, especially as it would not impact upon the trial timetable.

Sharmila confirmed that the Temple was a large part of her father’s life and that both she and Oormila were signatories there. She was quiet when giving evidence and clearly reluctant. For example, when asked by Mr Bennion-Pedley as to whether she signed documents in Oormila’s name when her sister was in India, with Oormila’s consent, she denied doing so. She was then asked how such documents got signed. She simply replied “ask her”.

Then Sharmila was asked whether she signed documents for her father. She said no, never. She was shown Item 12 and she said she had never seen it before. She was asked if the Temple had a personal computer to which she replied she did not go to the Temple that much as then she was heavily pregnant and had to run her own business. She added she helped but not on administration matters then. Now, as chairman, she knew what was going on.

Sharmila was asked if the Temple had a picture file of her father’s signature to be inserted in documents. Her response was that she did not know why she was being asked that as she was unaware as to whether the Temple had a PC at that time. Mr Bennion-Pedley then questioned Sharmila about the Will. She confirmed she had first seen it after her father had died. Then he said Oormila suspected some of the handwriting on the Will was hers, which she denied.

It was clear that Sharmila had experienced substantial personal difficulties at the material times which may explain her attitude when giving evidence. Overall, I find she was a truthful but reluctant witness.

Ms Ali appeared remotely from California where she currently lives. Fortunately, apart from a slight delay, the connection was good, far better than Ms Syed in Birmingham. She is a Portfolio Manager for Munich Re and moved to California in July 2017, having been transferred by them from London. In her statement she said she had known Srimila since they were about 12/13 years old and had been to Number 36 many times, often with Ms Syed. Her statement is very short and the execution of the Will is described thus:

“In 2016, Srimila returned to London and Allya and I wanted to visit her. When we got to Srimila’s parents’ home, which is where she was residing, Srimila was not there yet so we were having a general conversation with her dad. During this time, uncle asked us whether we could witness his Will. We saw him sign the Will and signed after him. Uncle was persistent that we did not mention it to anyone as he wanted to tell them himself. We met Srimila and her family when she arrived and then left.”

In her oral evidence she confirmed Munich Re had deleted her emails and diary upon her move to her new role and location. Asked about the Deceased’s illness, she said she knew he was ill but not how severe it was – maybe a liver transplant or something. She said that she went to Number 36 the day after his death but could not attend the funeral.

Mr Bennion-Pedley then asked what she remembered of events on 8^th August 2016. Ms Ali said that they arranged to meet at No 36, but Srimila was not there. They were speaking to uncle and waiting around. He asked if they were free and could help him sign his will. She had a quick glance and said she was happy to do it. They signed the Will and waited a while for Srimila and her family to return, and then spent some time with them. She definitively said Mrs Selvarajah was not present.

She continued by saying that the conversation as to the Will started in the hall and then they moved into the living room. She went straight there from work where she finished at about 5.00pm. She took the train home which was one hour, freshened up and then went to Number 36 so she thought she would have arrived about 7.00pm. The Deceased appeared normal to her, nothing out of the ordinary. When asked where the Will came from she said “…uncle just passed it to us…”, and she could not recall where he got it from.

Mr Bennion-Pedley said by glancing at it what was she checking the Will for? She replied “I’m quite a cautious person. I want to see what I’m signing and it said something like transfer all to my spouse then I signed it.” He asked what bit of the Will said that? She replied “Scroll down [he had referred to the first page of the Will at p7 in the bundle but hers was electronic] – point 9 [on p9]. So I was quite comfortable signing it.”

Ms Ali then confirmed her signature. When asked if it was her who wrote the date which appears above the signatures she said “Maybe. Maybe not. Maybe Allya. Looks more like her writing. One of us must have done it”. She went on to say she could not recall the order in which they signed but she assumed she signed first “after uncle”. She went on to say she did not recall ever mentioning the Will to Srimila. Oormila’s case was put to her but she maintained that she saw the Deceased sign, she did not sign the Will with a pre-existing signature nor did she think there was no harm in such an act.

As with Ms Syed she was asked if she was aware that Oormila’s solicitors were trying to contact her. She replied that she was not, and that whilst she still owned her home in Ilford it was let out and a managing agent handled it. I note in the trial bundle are two letters from Krish Ratna & Co, solicitors previously instructed by Ooormila before Raj & Co, dated 17^th February 2020 to each of Ms Ali and Ms Syed asking if they witnessed the Will. Both were addressed to properties they had left years before, which explains their replies that they were unaware of those attempts to contact them.

Ms Ali was clear, direct and tried her best to assist the court. I have no hesitation in accepting what she said. Having said that, Mr Bennion-Pedley in his closing submissions raised numerous substantial queries which I address below.

I now turn to the expert evidence, all of which was by way of written reports and joint statements.

Mrs Briggs for the claimant and Mr Craddock for the defendants were instructed to determine whether the signature on the Will was written by the Deceased. Both submitted reports and then addendum reports. They produced a joint statement dated 14^th July 2022. At [3.2] Mrs Briggs opines that the evidence:

“…is inconclusive meaning that it is not possible to determine whether or not the signature was written by him” (emphasis as in original).

Mr Craddock opines:

“…there is moderate evidence to show that the questioned signature was written by…[the Deceased]…However, his opinion is based on the premiss that all the known signatures that he has examined are in fact the genuine signatures of …[the Deceased]…written at the date as shown. If item [PC12] and possibly any other signature is not a genuine signature of …[the Deceased]…written on the date shown, Mr Craddock’s opinion of moderate evidence would be unsustainable and therefore his opinion as to whether…[the Deceased]…was responsible for signing his Will dated 08 August 2016 would be inconclusive” (emphasis as in original).

Mrs Briggs continues by saying she:

“…has been instructed that the Claimant challenges the authenticity of any documents where there is no clear handwriting of …[the Deceased]…other than a signature and has identified these items as [PC3-PC12] and [PC18]...one of the most significant limitations to the examination is lack of any contemporaneous signatures particularly given the allegation above, which incorporates item [PC12]. This is despite the large number of known signatures submitted for examination; none of them were writen after the date of the questioned Will. Mrs Briggs is of the opinion that the documents available are not representative of the writing ability of…[the Deceased]…at the time the Will was signed.”

Accordingly she does not consider a reliable opinion is possible so she maintains that the evidence is “inconclusive”.

Mr Craddock:

“…agrees with the limitations with regard to the known signatures as documented by Mrs Briggs…However, if item [PC12]…is accepted by the court to be genuine and written on the date shown, it is [his] opinion that there is sufficient evidence to support the proposition that it is more likely than not that the questioned signature of…[the Deceased]…on the Will is genuine. If item [PC12] in his report cannot be relied upon his opinion would be inconclusive.”

I refer to item 12 in my summary of the evidence of Ms Sharmila Muralitharan at [83-87] above. I accept her evidence that she had not seen this letter before and that she had not signed it as she had never signed documents for her father nor used an electronic image to do so. On the balance of probabilities in the absence of any sustainable evidence or challenge the signature on item 12 can be presumed genuine.

Therefore, in summary, Mrs Briggs concludes the evidence is inconclusive, albeit I note the limitations imposed by Oormila, and Mr Craddock concludes there is moderate evidence it is genuine.

Professor Burns and Dr Prabhakaran made two joint statements; unfortunately they initially were not provided with the same medical records. By the time of their second report dated 4^th May 2022 they were satisfied that broadly they had the same information before them. They agreed they should concentrate on the Deceased’s testamentary capacity on the day he executed his Will on 8^th August 2016. They further agreed:

“While there is a past history of heart disease, liver cirrhosis and high blood pressure, there is nothing to suggest a dementia, cognitive impairment or a mental health condition that could have affected Mr Selvarajah Sellathurai’s testamentary capacity; There is no evidence of the presence of an insane delusion…The Court will have to rely on the non-medical evidence to come to a conclusion.”

That puts the matter of testamentary capacity as far as medical evidence is concerned beyond doubt, although Mr Bennion-Pedley referred to it in his skeleton argument as inconclusive, to which I return below.

The facts and circumstances here are somewhat unusual so I therefore will set out the helpful closing submissions by both counsel in some detail, both of whom provided me with their speaking notes. Mr Gun Cunninghame’s case is simple; due execution is established by the evidence of Ms Syed and Ms Ali. If I accept their evidence, that is the end of the matter and the expert evidence is irrelevant. The signature of the Deceased does not have to match as if he signed it he signed it, whether it was his usual signature or not.

He also emphasised that the Particulars of Claim were drafted in general and unspecific terms and that none of what Mr Bennion-Pedley submitted appeared in that pleading; this is a serious allegation of fraud and forgery, and even more seriously that people lied to the court. However the evidence tendered by Oormila was mere inference and suspicion. As he said in his skeleton argument, it was surprising that Oormila could pursue a case of fraud without any evidence of fraud.

Next, the form of the Will is sufficient; it has a proper attestation clause in clear terms. As to Gestmin, the simple point remains; is the evidence of the attesting witnesses reliable and truthful? He submits the minor differences in recollections are the hall marks of honest evidence, which in general terms I accept. This is a binary issue; either they are telling the truth or they are not as there is no middle ground in misremembering.

Further, Mr Gun Cunninghame submitted that the joint handwriting opinion is at its highest for Oormila inconclusive. As to item 12, there was no reason nor motivation for anyone other than the Deceased to have signed it, and Oormila only challenges this and like signatures where the document concerned is typed save for the signature. I do not consider that is a reason in itself to challenge the signature. It seems in the absence of handwritten letters experts must use single signatures for comparison purposes.

During closing submissions I asked Mr Bennion-Pedley to address the joint medical report and explain why it was inconclusive in view of the clear conclusion of both experts that the Deceased had testamentary capacity. He replied that they had missed in their review a report of a referral to NHS 111 by an unspecified daughter on 12^th August 2016 which stated “New confusion was the main reason for the assessment…the duration of the problem was more than 2 weeks.”

I am unaware as to whether this note was before the experts. In any event, this records what the daughter told the call handler. It is not an assessment by a doctor following examination. I also consider there was ample time to have the experts reconsider this evidence, as their joint report was dated 22^nd May 2022. In the event, Mr Bennion-Pedley said this was not a live issue.

He emphasised the fallibility of human memory and the need to assess witness evidence alongside contemporaneous documentary evidence and evidence upon which undoubted or provable reliance can be based. Or, as I think it can be put, the primacy of documentary evidence compared to the fallibility of memory. Mr Bennion-Pedley also referred to the need to pay particular attention to unconscious bias and the effect of present belief on past memory.

Here, he submits that all the key witnesses must answer allegations of irregular conduct, and in the context of, for certain of them, hatred of Oormila. I think he is underplaying the seriousness of their position; the key witnesses (Srimila, a solicitor, Ms Syed and Ms Ali) and possibly others, if he is correct, have committed perjury. The context Mr Bennion-Pedley contends for is that it appears Srimila and her friends did not act for personal gain but out of a concern that without a will the family would lose 50% of the estate in tax as appears in Srimila’s WhatsApp message at [23] above. She set out a plan to prepare a will and after his death the Will appeared in exactly the terms she proposed.

It is Mr Bennion-Pedley’s submission having started with that view that a will was necessary – and her siblings supported her in that – the Will was prepared by her to ease administration rather than defraud, but everything has blown up beyond what she anticipated, and so family and friends have been brought in to maintain the story of the Will. In those circumstances, there can be no question of impartiality as far as the Defendants’ witnesses are concerned. Further, the Will was an administrative document rather than a true testamentary instrument.

On that basis, he submits the crucial WhatsApp message from Srimila and the known and provable facts point inexorably to Srimila having done exactly what she said she would do. He submits none of those matters flow from Oormila’s evidence. He is right not to rely on her evidence as, as I have set out above, I found I could place little or no weight on it, but that it did not go to the Issues I am to determine.

However, Mr Bennion-Pedley submits that Oormila’s case is based on inference as appears in her Reply at [6]. I take the sub paragraphs in turn, paraphrasing them in italics and setting out my findings where possible:

Mr Bennion-Pedley submits against that is the Defendants’ counterfactual “entirely by coincidence dad had already done it” which in his submission is wholly flawed, due to five fundamental problems. Mr Bennion-Pedley’s speaking note was detailed but succinct as to these issues and I therefore set it out verbatim:

Mr Bennion-Pedley submitted as to (5) and the non-disclosure of the Will to Srimila that the written evidence before trial was that Srikumaran was told of it after the funeral but Srimila put it chronologically being discovered after the funeral, and neither witness says they told Srimila of it before the funeral. However, at trial, Srimila said she found it before the funeral and Ms Syed said she did tell Srimila of the Will but was uncertain as to whether this was before or after the funeral. That, he submits, means the only explanations were either that the Will was not in place so there was nothing to tell or disclose to Srimila or that they did not need to tell her as she orchestrated it as she said she would.

Also, neither of these long standing friends of Srimila appear to have noticed the marked physical deterioration of the Deceased whereas the contemporaneous documentary evidence showed he had “wasted away”, “looked really bad” and as Srikumaran put it, was “skin and bones” or as Sharmila said, he had “given up”.

Mr Bennion-Pedley was also very critical of Ms Ali saying she checked the terms of the Will before signing which he said was highly unusual as it is a private document. To do so would be impertinent, especially with the, as he put it, generational and gender imbalance. That checking, he continued, was more likely if she was asked to witness it after the event.

I address these and other substantial points by Mr Bennion-Pedley below, but before I do so I will set out which of the myriad of allegations I consider have been disposed of and which are current and unusual or suspicious so need consideration in my findings of fact.

The allegations I consider disposed of as being without substance are:

The matters which remain arguably unusual or suspicious are:

I start with the fact that the Deceased did, at some point in time, indicate he intended to make a will. In the trial bundle is an email from Krish Ratna & Co dated 16^th November 2021 to S.Satha & Co, solicitors. In it they ask if the Deceased had contacted them regarding making a will. They replied on 21^st November and said:

“I DID NOT MAKE A will for Mr Sellathurai. But he has known to me and the firm since we established in 1997. He has called me regarding preparation of WILL but has not attended my office to give any instructions to prepare the same” (sic)

The writer said he could not recall the date of this telephone call. In my judgment this establishes that the Deceased at one point intended to make a will. There is no indication in the evidence nor reason for him not to maintain that intention until he did so. I appreciate that the writer did not give evidence at trial but this is independent documentary evidence of that intent, and the inclusion of it in the trial bundle means it is admissible as evidence of the contents – see CPR Part 32 PD27.2. Further, no objection has been taken by Oormila, which would be difficult as it is a document emanating from her.

The document referred to above as item 12 which was considered by Mrs Briggs and Mr Craddock in their reports is a short “To whom it may concern” reference on the headed notepaper of the Temple regarding “Master Lukshan Shavaswaran”. It is addressed to him at a residential address and is just three sentences long. It states that he is a talented violinist for his age and an enthusiastic and helpful young man.

It is wholly type written save signed in manuscript. Beneath the signature appears “President Mr S Selvarajah”. It is dated 19^th July 2016. I accept Sharmila’s evidence that she did not sign this letter on her father’s behalf. On the face of the document and in the absence of any other evidence it must therefore have been signed by the Deceased. That has the consequence that Mr Craddock’s opinion remains that there is moderate evidence that the Deceased signed the Will. It also answers Issue 1 as “yes”.

I now turn to events on the 8^th August 2016. After his day at the hospital, accompanied by Srimila, the Deceased drove himself home. At some point before that evening Ms Syed and Ms Ali arranged to meet Srimila at Number 36. Both witnesses were questioned as to communications. They confirmed that they were in regular contact with each other and Srimila and others in their friendship group, as well as the arrangements to meet that evening.

Mr Bennion-Pedley makes a lot of the fact that there is no documentary trail evidencing these arrangements – there must have been a digital footprint. That is a reasonable assumption. But here Ms Ali had moved position, company (albeit to a subsidiary) and country and said her emails were deleted by Munich Re when that happened. She must have changed her telephone and number. Ms Syed said she had changed her telephone and number a few times over the intervening years and explained she had been asked to look for electronic messages from 2016 but did not have any.

The witnesses had earlier assisted in answering Oormila’s second Part 18 request in that she asked for each of them to produce their passports to show “...they were in the UK on the 08/08/2021” (sic). They produced their passports which evidence they were in the UK on 8^th August 2016. I find this shows their willingness to disclose what they can.

Srimila maintained that the arrangements to meet that evening were made by telephone. Mr Bennion-Pedley has said (his point 2 in [118] above) that Srimila has refused to provide copies of the group WhatsApp she shares with the witnesses and others. But there is no evidence of an application for same being made, being successful and non-compliance by Srimila with an Order of this Court. If there had have been, I doubt this trial would have commenced. Further, Srimila did say in her Part 18 response, which was signed by her with a statement of truth, that she had sought call records from her mobile service provider but that they did not hold call records that far back.

It is not sufficient to make such allegations, demand production from the opposing party and then (if it be the case) back off in the face of refusal. The provisions of CPR 31 are for litigants to use. If a requesting party does not avail themselves of the long-standing remedies intended to assist parties and the Court get to the truth in a matter, then they cannot expect an allegation of non-production to create an inference of deliberate avoidance of production of relevant evidence.

In view of the above I do not accept that the failure to produce evidence of electronic communications by any of the three persons concerned means that I should draw adverse inferences as to their evidence in that respect.

I now return to the facts. Srimila was not at home when Ms Syed and Ms Ali arrived, which the latter thought was around 8.00pm. She was with her husband and their child visiting his relatives nearby, as he was returning to India the next day. The witnesses knew the Deceased well and for many years, albeit they had not seen him for months. It is to be expected that they would be admitted to the home and chatted with him whilst waiting around. In the hallway he asked if they were free and could help him with the signing of his will. Ms Syed said that he took the will off the dining table which was at the back of the living room which they had moved to. Ms Ali’s account then differed; when she was asked where the Will came from she said “Uncle just passed it to us, I can’t remember”. Ms Syed did not think Mrs Selvarajah was at home then; Ms Ali said she definitely was not.

Both witnesses then saw the Deceased sign the Will. Ms Syed did not read any of the Will. She just signed her name. She could not remember who signed first. Ms Ali did glance at the Will, reading enough of it to satisfy herself what it was and that it said something like transfer all to Mrs Selvarajah. She was therefore comfortable and signed it. She could not recall who of her or Ms Syed signed after the Deceased but assumed she signed first. I find that a reasonable assumption as where she signed was on the left-hand side of the page i.e. where people usually start writing from in the English language.

Mr Bennion-Pedley submits that if the above happened as Ms Ali said, whilst it was reasonable to check the document was a will that itself is a private document and for her to read it was impertinent. Possibly it was. She may not have been familiar with a will and its language. But she said the reason she did read it was because she is a cautious person. I have already said I accept her evidence (and that of Ms Syed) and the position is no different here. What in general terms may appear to one person to be unusual or in this instance impertinent does not in itself mean it was, as Mr Bennion-Pedley put it, extraordinary for her to do so. He cites a generational and gender imbalance. Ms Ali may differ and not recognise that dual imbalance, given her age and career amongst other matters, but that was not put to her. She was in any event close to the Deceased.

As to the facts, and the date which appears above their signatures, (the mis-spelt one) Ms Ali said it may be her writing, it may not be, it may be Ms Syed. It looked more like her writing, but one of them must have signed it. Ms Syed could not recall who signed first but confirmed her signature and her handwriting. She said the date above was not written by her and she did not recognise the writing. These differences are to be expected when a number of witnesses give oral evidence about an event and especially so when the event was years before and they had no idea that their recollections would be tested in Court.

Both however were the only people present apart from the Deceased. Mr Bennion-Pedley submits that there is a fourth hand on this fourth page of the Will, who wrote the date above their signatures. I find on the balance of probabilities it was one of them. My concern is the date above the signature of the Deceased. That handwriting differs from that of either witness. That manuscript was not challenged and not the subject of the expert evidence. In those circumstances it must be taken as that of the Deceased and there was therefore no “fourth person” who wrote on the Will.

Both witnesses were asked how he looked. Ms Syed said she remembered thinking he had lost some weight, as happens in old age. Ms Ali said he did not appear out of the ordinary, normal to her. That contrasts with the views of his children as I have set out above. I do not think anything in the overall circumstances turns on that. The witnesses were there to see Srimila, and this exchange was in the run up to that.

I find the Deceased asked both not to mention the Will to anyone else, as he would tell his family at the right time. In view of the family rows and distrust, as especially evidenced by the dispute over Shay Services and later Oormila’s insistence upon Nirmalan carrying her father’s coffin at the funeral plus her subsequent unsubstantiated allegations, that was more than likely on the balance of probabilities, indeed wholly understandable in all the circumstances.

Then Srimila, on 28^th August 2016, not knowing of the Will, sent her WhatsApp message to her siblings. That is unremarkable. However there was no follow up by her on her solution nor a single piece of evidence, in writing or oral, which points to the plan being abandoned. Likewise there is no explanation as to why. In a further message later that day Srimila referred to a “couple will” also of which no more was heard.

The witnesses’ compliance with his request after his death was again understandable in the wider family situation. The non-disclosure to Srimila was not in my judgment extraordinary as Mr Bennion-Pedley submits. He refers to a duty upon them to speak up. I see them complying with “Uncle’s” request. Both did see Srimila and other family members immediately after his death and Ms Syed attended the funeral.

It may be another coincidence or reason for suspicion that Srimila found the Will. But I accept her evidence that that was what happened. There is only inference or suspicion which indicates otherwise which I turn to below. But in any event this Will was not as Srimila intended a simple will. It was long, at four pages. Mr Gun Cunninghame submitted in his skeleton argument it was professionally drawn. I disagree, and it was certainly not prepared by any lawyer with knowledge of the laws of this jurisdiction. Srimila is a solicitor and clearly unaware of inheritance tax and probate practice. However I cannot accept that she would take such a complicated will off the internet as opposed to a simple one page will naming her and Srikumaran as executors and giving the estate to his wife, and drafted in accordance with what is usual in this jurisdiction. That would take very little research.

In any event, the Will was wholly rational on its face as to the executors and the sole bequest. It is logical and to be expected especially with a relatively low value estate, where there is no evidence of the Deceased maintaining anyone other than his wife. I now turn to the evidence of Mrs Ragu. She said and I accept that the Deceased told her he would leave everything to his wife. He removed his mask to say that he had made a will in reply to her question. I accept all that evidence. But if I did not it would not overturn the evidence as to attestation but add to the unusual features and suspicious circumstances Mr Bennion-Pedley relies upon.

There are in these events unusual matters and suspicious circumstances. Some can be understood or explained. Not all can. But the case Mr Bennion-Pedley puts forward requires one to accept a conspiracy on a large scale over a long period of time involving several individuals. He posits that it all began with a simple request by Srimila to the witnesses to attest to a pre-existing signature on the Will, at some point uncertain in time. But years later – as it took Oormila years to institute these proceedings – it grew in to a lie which expanded exponentially and had to be maintained and indeed buttressed in the face of Oormila’s allegations and the enquiries of her solicitors.

But that necessitates Ms Syed and Ms Ali both staying with the lie. I find that hard to accept in circumstances where even if they had witnessed a pre-existing signature it is unlikely they would on the balance of probabilities continue with the deception especially as once proceedings began, they had to make witness statements and then give oral evidence. I find that because they are each independent professional women with substantial careers. Mr Bennion-Pedley submits they cannot be impartial. But they are not part of the family and are separate geographically and financially.

Further each of them could have easily refused to co-operate at any time up until and especially just before they were called and gave their oral evidence. That was what Oormila’s witness, Mr Thambipillai, appears to have done. His evidence, which appeared to be hearsay, was that Srikumaran told him there was no will. But he became uncontactable in circumstances which were never explained. As the trial continued for three days it cannot have been an immediate problem which stopped him appearing. Ms Ali, situated like him in North America, could have done likewise.

However, such a conspiracy could have the most severe consequences professionally for Srimila, involving possible findings of forgery and lying on oath. The same applies to the witnesses as such findings could affect them professionally. All three could face fines and/or prison as well.

Mr Bennion-Pedley makes much of partiality on the part of the witnesses. I have taken that into account, but I accept their evidence, which is to a degree supported by the handwriting evidence, although the latter by itself is not determinative. This claim has been driven by Oormila’s suspicions and at times wild allegations, most of which are not just unsupported by evidence, but the evidence actually disproves them.

In summary, here there is just not the “strongest evidence” in all the circumstances relevant to attestation. Mr Bennion-Pedley has made eloquent and carefully drawn closing submissions, but as Arden LJ at [46] in Channon said, “Allegations that were not made, or were not pursued, and mere suspicion, have to be put on one side.” The evidence of the witnesses as to the Deceased signing the Will and their attestation is conclusive; my answer to Issues 2 and 3 is in the affirmative. Issue 4 has been disposed of and as to Issue 5, there is no other reason to revoke the grant of probate.

I will now hear counsel as to the terms of the order and costs.