Bodh v Boudh & Anor

Where a will appears to have been duly executed before at least two independent witnesses, the court may presume that it was made with the testator’s knowledge and approval, unless suspicious circumstances rebut that presumption.

Rebuttal of the presumption does not determine the validity of the will. The propounder may still establish due execution, knowledge and approval from the evidence as a whole. A later document that is proved to be a forgery cannot revoke an earlier valid will.

The claimant sought a declaration that a one-page will dated 16 November 2000 was the deceased’s last true will. He also sought revocation of probate granted to the first defendant under an earlier will dated 8 March 2000 and probate of the later will.

The defendants challenged the authenticity and execution of the one-page will. The evidence also concerned a three-page document bearing the same date, including a purported signature of a witness who denied signing it. The central issues were whether the one-page will was duly executed and whether the deceased knew and approved its contents.

1. Burden and presumption. The burden rested on the claimant to prove due execution and the deceased’s knowledge and approval. In the absence of suspicious circumstances, a will appearing to have been executed by the deceased in the presence of at least two independent witnesses who also signed it would attract a presumption of validity.
2. Suspicious circumstances. The evidence concerning the three-page will, including the forged signature of Mr Cheema, inconsistencies in the witnesses’ evidence and concerns about the circumstances in which the documents were prepared, rebutted any presumption of validity applicable to the one-page will. The claimant therefore had to prove the will independently of its appearance on the face of the document.
3. Evidence establishing validity. Despite the rebuttal, the court was satisfied on the evidence as a whole that the deceased had executed the one-page will with knowledge and approval of its contents. The existence and discovery of the original document, the handwriting evidence, the simple testamentary provisions, the evidence of the meeting at Gratian & Co and the translation and explanation of the will supported that conclusion. The deficiencies in Mrs Ohri’s evidence did not justify rejecting it entirely.
4. Effect of the three-page document. The three-page document was a forgery insofar as it purported to have been witnessed by Mr Cheema. It therefore did not operate to revoke the valid one-page will.
5. Disposition. The claimant’s action succeeded. He was entitled to relief, with the precise wording of the order to be settled after hearing counsel.