JASWINDER KAUR SANGHA v THE ESTATE OF DILJIT KAUR SANGHA & Ors

A will confined by its terms to identified property in a particular jurisdiction will ordinarily be construed as applying only to that property, including where it contains a general revocation clause. The court must construe the will as a whole, using the natural and ordinary meaning of the words in their factual context. The presumption against intestacy assists construction only to a limited extent and must not distort clear wording.

Where the presumption of due execution fails, the will does not thereby become invalid. The court must determine, on all the evidence and by permissible inference, whether the statutory requirements for execution were satisfied. Appellate intervention with such factual findings is limited.

The appellant challenged part of an order made by Deputy Master Bowles concerning the estate of Hartar Singh Sangha. The Deputy Master had held that a 2016 will, dealing only with property in India, revoked all earlier wills, including a 2007 will dealing with property in the United Kingdom and India. The consequence was that the English estate fell into intestacy.

The appellant argued that the revocation clause applied only to earlier testamentary dispositions concerning the Indian estate. The respondents supported the Deputy Master’s construction and brought a conditional cross-appeal, arguing that the 2007 will was invalid under section 9 of the Wills Act 1837. The central issues were the proper construction of the revocation clause and whether the 2007 will had been duly executed.

1. Appeal allowed; cross-appeal rejected. The 2016 will did not wholly revoke the 2007 will. The two instruments were to be read together.
2. The proper approach was that stated in Marley v Rawlings: the court identifies the meaning of the words in their natural and ordinary meaning, the document’s purpose and provisions, the relevant factual context and common sense, while excluding subjective intention. That approach applies equally to wills.
3. The 2016 will was an entirely Indian document. It was drafted in India, with the assistance of an Indian lawyer, and dealt exclusively with Indian property. In that context, the phrase referring to previous documents could naturally refer to earlier wills dealing with the same Indian property. There was no sufficient reason to construe it as indirectly revoking a will dealing substantially with property in another jurisdiction.
4. The presumption against intestacy is a limited aid to construction. It favours giving effect to a testator’s attempt to make a will, but cannot be used to do violence to clear wording or to speculate about what the testator might have intended. On the facts, it did not assist the appellant independently, but the contextual construction of the revocation clause favoured her.
5. As to the cross-appeal, the attestation clause was inaccurate because one witness had not been present when the testator signed. The presumption of due execution therefore did not apply. That failure did not create a presumption that the will was invalid. The court had to determine as a question of fact, on direct evidence or inference, whether section 9 of the Wills Act 1837 had been satisfied.
6. The amendments to section 9 removed the former requirement of a strict sequence between the testator’s signature or acknowledgement and the witnesses’ signatures. The Deputy Master was entitled to infer that the necessary acknowledgement had occurred and his factual conclusion was not open to appellate challenge.

• Chancery Appeals Division: Appeal from the order of Deputy Master Bowles dated 21 September 2021. Appeal allowed and conditional cross-appeal rejected.
• Deputy Master Bowles: Held that the 2016 will revoked all previous wills, with the consequence that the English estate was intestate, and held that the 2007 will was duly executed.