The British University in Dubai v Ebrahimi

For a will to satisfy section 9 of the Wills Act 1837, the testator must sign or acknowledge the signature in the presence of two witnesses present at the same time. Separate witnessing by two individuals does not satisfy that requirement. The ordinary civil standard applies when validity is challenged, including where fraud or other serious misconduct is alleged. The seriousness of an allegation does not create a different standard of proof, although the inherent probabilities and quality of the evidence remain relevant. Witness credibility is assessed primarily by the substance and consistency of the evidence, its consistency with contemporaneous documents, and the inherent probabilities, rather than demeanour alone.

The claimant challenged the validity of the deceased’s 2018 holographic will. The will was signed on 3 May 2018. Two witnesses later signed on 4 May, but accepted that they had not been together when the deceased’s signature was witnessed. The defendant relied on two further signatures on the reverse of the will, said to have been made by colleagues who witnessed the will on 3 May.

During the trial one of those witnesses admitted that the alleged meeting on 3 May had not taken place. The defendant abandoned his defence to the claim and sought to withdraw his counterclaim for pronouncement in favour of the 2018 will. The issues were whether the 2018 will had been validly attested, whether probate should be revoked, and what consequential orders should be made.

1. Validity of the 2018 will. Section 9 of the Wills Act 1837 requires the testator’s signature to be made or acknowledged in the presence of two or more witnesses present at the same time. The two witnesses who signed on 4 May had acted separately. Their evidence therefore could not establish compliance with section 9.
2. Assessment of the alleged 3 May attestation. The court rejected the account that the two Loughborough witnesses had travelled to the deceased’s home and witnessed the will on 3 May. The admission of Dr Pezouvanis was clear and unequivocal. It was supported by the weaknesses in Dr Athanasiou’s evidence, the absence of independent confirmation, inconsistent timing evidence, the lack of contemporaneous records, and the unexplained placement of the signatures on the reverse of the document. The defendant’s evidence confirmed rather than undermined that conclusion.
3. Standard and evaluation of evidence. The claimant bore the burden of proof on the ordinary balance of probabilities. Applying Re B (Children) [2008] UKHL 35, the court rejected any rule requiring a heightened standard because the allegations were serious. The seriousness of the allegation could affect the assessment of inherent probabilities in the particular circumstances, but did not alter the legal standard.
4. Remote evidence. The court treated demeanour as an uncertain guide to reliability. Substance, internal consistency, consistency with contemporaneous documents, and inherent probabilities were more important, consistently with Huber v X-Yachts (GB) Ltd [2020] EWHC 3082 (TCC), R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin), R (on the application of SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391 and A Local Authority v Mother [2020] EWHC 1086 (Fam).
5. The 2018 will was invalid and the grant of probate was revoked. The defendant’s counterclaim was permitted to be withdrawn, and the court made the agreed consequential orders, including appointment of an administrator pending suit. The papers were referred to the Director of Public Prosecutions in view of possible perjury, conspiracy to defraud, and conspiracy to pervert the course of justice.

not stated in the judgment.