Boudh v Bodh

Where a formally executed will gives rise to suspicion that the testator did not know and approve its contents, the person propounding it must prove knowledge and approval and dispel the suspicion. The degree of suspicion and the evidence required are fact-sensitive. The court must assess the whole case, including the probabilities and oral evidence. Imperfect or inconsistent testimony does not require wholesale rejection of a witness’s account. The appellate court will not disturb a trial judge’s factual conclusions merely because the evidence is imperfect. The guidance in Wintle v Nye [1959] 1 WLR 284 must be applied with regard to the circumstances of the particular will.

This was an appeal from Evans-Lombe J’s order in a contested probate action. The judge pronounced for a one-page will made in November 2000 in favour of two grandsons, revoked the grant of probate obtained for an earlier will in favour of the deceased’s eldest son, and made no order as to costs.

The appellant challenged the judge’s conclusion that the deceased knew and approved the contents of the one-page will. He also challenged the refusal to order that his costs be paid from the estate. The appeal concerned the proper approach to suspicious circumstances, the assessment of conflicting witness evidence, and the appellate review of the costs discretion.

1. Appeal dismissed. Mummery LJ, with Thomas LJ and Maurice Kay LJ agreeing, upheld the order pronouncing for the one-page will and against the March will. The costs challenge also failed.
2. The judge had correctly stated the applicable law. Where circumstances create suspicion that the deceased did not know and approve the contents of a will, the burden lies on the person propounding it to remove that suspicion. Formal execution and the apparent validity of the document are insufficient by themselves. The guidance in Wintle v Nye [1959] 1 WLR 284 was relevant, but the degree of suspicion and the evidence required depend on the circumstances of the particular case.
3. The trial judge was entitled to assess the totality of the evidence and the probabilities. He could accept the essential thrust of Mrs Ohri’s evidence despite errors, inconsistencies and weaknesses in parts of her account. No principle of law, evidence, common sense or life experience required him to reject the whole of a witness’s evidence because some parts were wrong. The one-page will was not inherently or exceptionally suspicious. The evidence that the deceased had fallen out with the appellant and wished to benefit her grandsons provided a credible explanation for the change in testamentary intention. The defective three-page document did not invalidate the one-page will, particularly as it had identical beneficiaries and two common witnesses and appeared to be a retyped version with defective execution.
4. The appellate court had no proper basis to interfere with the factual findings or the conclusion that knowledge and approval had been proved. An exercise of discretion on costs could be overturned only for an error of principle or if plainly wrong. The judge was entitled to reject the appellant’s case that the probate litigation resulted from an elaborate deception and to make no order as to costs.

1. Court of Appeal (Civil Division), [2007] EWCA Civ 1019, 25 October 2007: appeal dismissed.
2. High Court, Chancery Division, Evans-Lombe J, order dated 9 October 2006: probate granted for the one-page will, probate of the March will revoked, and no order as to costs.