Bokhari v Harb & Ors

In a probate claim concerning an alleged codicil, apparent due execution creates only a rebuttable presumption. The court must assess the whole evidential picture, including contradictory accounts, the testator’s conduct after the alleged execution, absence of the document from expected custody, and unexplained delay in propounding it. Where those matters make the alleged execution improbable and the evidence supporting it unreliable, the presumption is displaced. Probate must then be refused. Allegations that a document was stolen or destroyed require evidential support; theoretical possibility is insufficient.

The claimant was executor and principal beneficiary under the deceased’s 1988 will. The defendants, members of the deceased’s family, sought probate of an alleged 1990 codicil said to have been executed in Jerusalem under English law. The codicil substantially altered the testamentary dispositions and appointed a defendant as an executor.

No copy was found among the deceased’s papers. The defendants alleged that the claimant had removed and destroyed it. The claimant alleged that the codicil was fabricated shortly before its disclosure in October 2000. The central issue was whether the codicil had been duly executed by the deceased.

1. Presumption and evidential assessment. The alleged codicil appeared on its face to have been executed, although it contained no attestation clause. This gave rise to a somewhat weak presumption of due execution. The presumption was not conclusive and had to be assessed against all the evidence.
2. Contradictory evidence. The principal alleged attesting evidence was undermined by Mr Gheath’s two materially contradictory accounts. The first account implicated the family and was substantially more consistent with the surrounding circumstances. The later account appeared to have been revised to make the defendants’ case more credible. The evidence of Mr Gheath, Mr Kaddoumi, Mr Nasereddin, Khalil and Samir was rejected as unsatisfactory or unconvincing.
3. Conduct and surrounding circumstances. The deceased never referred to the alleged codicil, including when consulting solicitors about later testamentary arrangements. It was not found with the will in his safe after his death. The defendants’ unexplained delay in disclosing it until October 2000 was inconsistent with their alleged knowledge of a document conferring substantial benefits on the family.
4. Fabrication allegation. There was no evidence supporting the allegation that the claimant had stolen and destroyed the codicil. The more probable conclusion was that it had never been executed and had been concocted by the defendants, the alleged attesting witnesses and Mr Gheath in or shortly before October 2000.
5. Probate of the codicil was refused. The appointment of Mr Phillips as executor was terminated.