Andrew Fraser v Abbey King Khawaja

In a probate claim alleging that a will is forged, apparent regularity gives rise only to a rebuttable presumption of due execution. Once sufficient evidence displaces that presumption, the person propounding the will must satisfy the court that the statutory execution requirements have been met. The allegation of forgery does not alter the evidential burden, although cogent evidence commensurate with the allegation is required.

A person who has obtained a grant and intermeddled in the estate cannot simply renounce the office or avoid responsibility by asserting that they have withdrawn. The probate court has a supervisory jurisdiction and must be satisfied on the evidence that the order sought should be made.

The claimant, a creditor and agent for potential intestate beneficiaries, challenged the authenticity of a purported will dated 8 July 2016. The will left the deceased’s estate to William Joseph, whom the claimant contended did not exist, and the defendant had obtained a grant of letters of administration with the will annexed under a power of attorney said to have been granted by Joseph.

The defendant did not attend the trial, took no effective steps to defend the claim, and asserted that he had withdrawn from his role. The central issues were whether the signature and execution complied with section 9 of the Wills Act 1837, whether the will was genuine, and whether the defendant could renounce after obtaining the grant and taking steps concerning the estate.

1. Validity of the will. The claim succeeded. The court pronounced against the purported will, revoked the grant made in favour of the defendant, and directed that the matter be referred to the police for investigation.
2. Section 9 of the Wills Act 1837 requires a will to be in writing and signed by the testator, or by another person in the testator’s presence and at the testator’s direction; the testator must intend the signature to give effect to the will; and the signature must be made or acknowledged in the presence of two witnesses who attest and sign or acknowledge their signatures in the testator’s presence (para [20]).
3. Where a will appears regular on its face, there is a rebuttable presumption that it was duly executed and complies with section 9. If sufficient evidence displaces that presumption, the burden rests on those propounding or relying on the will to establish due execution. In an allegation of forgery, the evidential burden operates in the same way, but cogent evidence commensurate with the allegation is required. Face v Cunningham was accepted as stating the correct approach (paras [21]–[23]).
4. The expert evidence provided very strong evidence that the deceased did not write the signature and that it was a simulation by another person. The surrounding circumstances independently reinforced that conclusion, including the inaccurate address, unusual and internally inconsistent drafting, absence of a credible beneficiary, inability to trace the attesting witnesses, and the defendant’s conduct. The will was therefore not genuine and did not comply with section 9 (paras [29]–[32], [34]–[67]).
5. An executor or administrator who has obtained a grant or intermeddled cannot renounce merely by asserting that they have withdrawn. Renunciation must be effective and cannot be used to escape responsibility for steps already taken. The defendant had obtained the grant under a power of attorney, registered the property, and attempted to sell it; his asserted withdrawal was therefore ineffective (paras [27]–[28]).
6. The alternative issue of knowledge and approval was not determinative. The court nevertheless accepted the stated principle that the testator must understand and approve the actual effect of the will, not merely know its wording (paras [24]–[26]). A written-evidence hearing remains a trial in open court, and the party seeking relief must establish on the evidence that the order should be made (para [68]).

First-instance decision. No appellate history was stated in the judgment.