Selvarajah v Selvarajah & Ors.

Where a will appears properly executed and contains the testator’s apparent wishes, the court should require strong evidence before finding that it was not duly executed. The strength required depends on the whole circumstances, including the reliability of the attestation evidence and the apparent probability of due execution. Mere suspicion and unpursued allegations do not displace the inference arising from the will, signatures and attestation clause. The civil standard remains the balance of probabilities; seriousness affects the quality of evidence required in practice, not the legal threshold. Credible attesting-witness evidence may establish due execution, with handwriting evidence providing support but not necessarily being decisive.

The claimant challenged the validity of her late father’s will, which left his estate to his wife and had been admitted to probate. She alleged that the deceased had not executed the will, that his signature had been forged, and that the attestation requirements had not been satisfied. The defendants relied on evidence from the two attesting witnesses, supporting handwriting evidence, and evidence that the deceased had intended to provide for his wife.

The claimant abandoned the allegation of lack of testamentary capacity during closing submissions. The issues principally concerned the authenticity and execution of the will, the witnesses’ presence and attestation, and whether the grant of probate should be revoked.

1. Claim dismissed. The court answered affirmatively the issues whether the deceased signed the will and whether the two witnesses attested it in his presence. No basis remained for revoking the grant of probate.
2. Section 9(1) of the Wills Act 1837, as amended by section 17 of the Administration of Justice Act 1982, requires a will to be in writing, signed by the testator or by another in his presence and at his direction, with an intention to give effect to the will, and signed or acknowledged in the presence of two witnesses present at the same time, each of whom attests and signs or acknowledges his signature in the testator’s presence.
3. Applying Channon v Perkins [2005] EWCA Civ 1808, a will apparently complying with section 9 and expressing the testator’s wishes should not be set aside on extraneous evidence without the strongest evidence. That requirement operates on a sliding scale and depends on the totality of the circumstances. Mere suspicion and allegations that were not made or pursued must be put aside.
4. The evidence of Ms Ali and Ms Syed was accepted as truthful and reliable. Their minor differences were consistent with the passage of time and did not undermine their account that the deceased signed first and that they then signed as witnesses. The handwriting evidence supported, but did not independently determine, the conclusion.
5. The court rejected an adverse inference from the absence of electronic communications. The claimant had not used the available procedural remedies to seek such material, and non-production therefore did not establish deliberate avoidance.