Singh & Ors v Ahluwalia

In an appeal concerning the formal validity of a will, the presumption of due execution does not displace a trial judge’s findings that the statutory attestation requirements were not met. An appellate court should not re-decide primary factual findings based substantially on witness credibility and evidence observed at trial, particularly where the judge analysed the evidence in detail and had the benefit of a physical demonstration unavailable on appeal. Permission to appeal requires a real prospect of success; an attempt to substitute a different view of the evidence, without an arguable point of law or proper basis for disturbing the findings, does not meet that threshold.

The appellants challenged the validity of the will of Ranjit Singh, dated 3 May 1999. The issue at trial was whether it had been duly attested by two witnesses, in the presence of the deceased and present at the same time, as required by Wills Act 1837, s 9.

Mr Mark Cawson QC, sitting as a Deputy High Court Judge in the Chancery Division (Probate), found that the witnesses had signed on separate occasions and revoked the grant of probate, declared that the deceased had died intestate and refused permission to appeal. Lord Justice Lewison refused permission on paper on 7 February 2012. The appellants renewed their application, arguing that the evidence was insufficient to rebut the presumption of due execution and seeking permission to appeal and a stay.

1. Applications refused. The applications for permission to appeal and for a stay were refused. The applicant was ordered to pay the respondent’s costs of the application, subject to detailed assessment on the standard basis if not agreed.
2. No point of law was raised by the proposed appeal. The Deputy High Court Judge had correctly directed himself on the presumption of due execution in the absence of the strongest evidence.
3. The judge was entitled to accept Mr Grantham’s evidence that he had signed alone, had not seen the attestation clause, and had been shown only so much of the folded document as was needed for him to sign. The judge found that the second witness signed on a later occasion and elsewhere.
4. The findings depended substantially on the credibility of the evidence and the judge’s assessment of the witness in the box. They also reflected the judge’s consideration of the layout of the will and a folding demonstration conducted at trial. An appellate court which had not seen or heard the witness had no proper basis to substitute a different conclusion.
5. The proposed appeal was an over-optimistic attempt to re-decide the principal factual issue contrary to the evidence accepted below. There was no real prospect of the Court of Appeal taking that course.

• Court of Appeal (Civil Division) — The renewed applications for permission to appeal and for a stay were refused.
• High Court of Justice, Chancery Division (Probate) — Mr Mark Cawson QC, sitting as a Deputy High Court Judge, found that the will was not duly attested, revoked the grant of probate, declared that the deceased died intestate and refused permission to appeal.
• Court of Appeal (Civil Division) — Lord Justice Lewison refused permission on the paper application on 7 February 2012.