Jaswinder Kaur Sangha v The Estate of Diljit Kaur Sangha & Ors

In a probate court, a testator’s intention when making or revoking a will may be established from evidence outside the document. A general revocation clause is powerful evidence of an intention to revoke earlier wills, but it is not conclusive. A narrower, jurisdiction-specific effect requires clear justification; the mere fact that a later will was made abroad and dealt with local assets is insufficient. The presumption against intestacy may assist where wording is ambiguous, but cannot displace clear words. For the purposes of the Wills Act 1837, section 9, as amended, the testator’s signature or acknowledgement in the joint presence of both witnesses must precede the witnesses’ attestation or later acknowledgement, although that conclusion was unnecessary to the appeal’s outcome.

This second appeal arose from a probate action concerning four wills made by Hartar Singh Sangha. The Deputy Master found that the 2016 will was valid, wholly revoked the 2007 will and left Hartar intestate as to his English estate. On appeal, the Deputy Judge held that the 2016 will revoked the 2007 will only as to Indian assets, while finding the 2007 will duly executed: [2022] EWHC 2157 (Ch).

The appellants challenged the construction of the revocation clause, the execution of the 2007 will, procedural aspects of the first appeal and the form of the probate order. The principal issues were whether the 2016 clause had territorial effect and, if necessary, whether the 2007 will complied with section 9 of the Wills Act 1837.

The appeal was allowed on the revocation issue. The Deputy Judge’s order was set aside and the Deputy Master’s order was restored.

1. Probate and intention. The court of probate may investigate the testator’s intention, including intention to revoke, by considering evidence outside the will. A general revocation clause is strong evidence of an intention to revoke earlier wills, but it is not conclusive. The party seeking a narrower effect bears a heavy burden and must provide clear justification.
2. Territorial scope. The fact that the 2016 will was made in India, with the assistance of an Indian lawyer, and dealt with Indian property did not justify assuming that it was limited to that property. Unlike re Wayland [1951] 1 All ER 1041 and Benjamin v Bennett [2007] All ER (D) 243, there was no express facial limitation and no powerful evidence of Hartar’s actual intention. The 2016 will was his primary will, and its natural meaning was that it revoked all earlier wills.
3. Intestacy. The presumption against intestacy exists, but its force varies with the circumstances. It may assist in resolving ambiguity, but cannot overcome clear wording. Hartar may have believed that most of his English assets had already passed to Jaswinder by survivorship, so the presumption was too weak to displace the natural meaning of the revocation clause.
4. Execution. Although unnecessary to the result, Nugee LJ held that section 9 of the Wills Act 1837, as amended by section 17 of the Administration of Justice Act 1982, requires sequential compliance. The testator must sign or acknowledge the signature in the presence of both witnesses together. The witnesses must then attest and sign, or, if they have already signed, acknowledge their signatures after that essential act. Arnold LJ agreed with this reasoning and added that attestation is only possible after the event has been witnessed. This was obiter.
5. Final order. The 2016 will wholly revoked the 2007 will. The questions concerning the 2007 will’s execution, procedural irregularities and admission of both wills to probate therefore did not affect the outcome.

• Court of Appeal (Civil Division) — In [2023] EWCA Civ 660, the appeal was allowed. The Deputy Judge’s order was set aside and the Deputy Master’s conclusion that the 2016 will wholly revoked the 2007 will was restored.
• High Court, Chancery Division — In [2022] EWHC 2157 (Ch), the Deputy Judge allowed Jaswinder’s appeal, held that the revocation was limited to Indian assets, upheld the due execution of the 2007 will and granted probate of it in relation to the English estate.
• High Court, Chancery Division — The Deputy Master’s trial judgment, [2021] EWHC 1599 (Ch), held that the 2016 will was valid and wholly revoked the 2007 will, while also finding the 2007 will duly executed.