Ahluwalia v Singh & Ors

A will that contains a regular attestation clause and the signatures of the testator and witnesses attracts a strong presumption of due execution. The presumption may be rebutted by the strongest evidence. That expression is fact-sensitive and requires assessment of the totality of the relevant evidence and probabilities. Positive evidence that the statutory formalities were not observed may suffice, although mere lack of recollection will not ordinarily do so. The court must weigh the evidential force of the presumption against the evidence in the particular case, while recognising the importance of protecting testamentary intentions.

The claimant, a daughter of the deceased, challenged the validity of a will dated 3 May 1999. Probate had been granted to the deceased’s eldest son. The claimant contended that the deceased signed the will in the presence of one attesting witness, but that the second witness was absent and later added his signature. The defendants relied on the attestation clause and the presumption of due execution.

The central issue was whether the evidence was sufficiently strong to rebut the presumption that the requirements of section 9(c) of the Wills Act 1837 had been satisfied.

1. Presumption and evidential burden. A will bearing a regular attestation clause and the signatures of the testator and witnesses provides strong evidence of due execution. The presumption is not rebutted by a witness’s mere inability to remember the execution, and positive evidence that a witness did not see the testator sign may still be insufficient unless it amounts to the strongest evidence. The policy underlying the rule is both the unreliability of recollection after many years and the need to avoid disturbing apparent testamentary intentions.
2. Meaning of the strongest evidence. Applying the guidance in Sherrington v Sherrington [2005] WTLR 587 and Channon v Perkins [2006] WTLR 425, the phrase describes a sliding scale. The court must assess all circumstances relevant to attestation and evaluate the probabilities. The necessary strength of evidence depends on the facts of the individual case.
3. Application. Mr Grantham gave a credible and substantially reliable account of witnessing the deceased’s signature alone at his home. His lack of regular contact with the second witness, and the latter’s distinctive appearance, made it highly likely that he would have remembered their being together. The second witness had also told the claimant, shortly after the will was found, that nobody else had been present when he signed. His later evidence was not accepted. These matters, considered cumulatively, outweighed the presumption.
4. The claimant therefore discharged the burden of producing the strongest evidence. Probate granted on 12 March 2010 was to be revoked, the will pronounced against, and letters of administration granted. The identity of the administrator and costs were left for a further hearing.

Not an appeal. The judgment is a first-instance decision.