Varsha Gohil v Kamla Gohil

On an application for summary judgment concerning a will, the propounder must show that the opposing case has no realistic prospect of success and that no other compelling reason requires a trial. Due execution and a rational will may establish presumptions of due execution, testamentary capacity, and knowledge and approval. An objector must provide evidence raising a real doubt about capacity and must properly particularise allegations of undue influence, fraud or fraudulent calumny. Testamentary undue influence is a question of fact and requires proof that the testator’s free agency was overborne. Mere estrangement, suspicion or unparticularised assertions are insufficient.

The claimant, the deceased’s former daughter-in-law and sole executrix, sought probate of his 2009 will. The defendant, the deceased’s estranged wife, defended the claim and counterclaimed, alleging lack of capacity, lack of knowledge and approval, undue influence, fraudulent calumny, fraud and forgery. She also claimed proprietary estoppel, an equitable account, statutory provision from the estate, and removal of the claimant as executrix.

The claimant applied to strike out the defence and counterclaim and for summary judgment. The central issues were whether the challenges to the will had a realistic prospect of success and whether any other reason required the disputes to proceed to trial.

1. Summary judgment and strike out. Applying the principles in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch), as approved in AC Ward & Sons Limited v Catlin (Five) Limited [2009] EWHC 3122 (Comm), the court considered whether the defence had a realistic, rather than fanciful, prospect of success and whether a trial was nevertheless required. Strike out under CPR rule 3.4(2)(a) involved a higher threshold because it concerned the statements of case rather than all available and reasonably foreseeable evidence.
2. The perfect attestation clause and the deceased’s signature engaged the presumption of due execution under section 9 of the Wills Act 1837, as explained in Sherrington v Sherrington [2005] EWCA Civ 26.
3. Testamentary capacity was assessed under Banks v Goodfellow (1870) LR 5 QB 549. Applying Re Key [2010] 1 W.L.R. 2020, the evidential burden shifted to the defendant to raise a real doubt about capacity. The defendant’s allegations were speculative and unparticularised. The contemporaneous evidence supported capacity, so the challenge had no realistic prospect of success.
4. Proper execution by a solicitor, together with preparation and translation of the will, raised a strong presumption of knowledge and approval under Gill v Wood [2011] Ch 280. The claimant’s presence and assistance as interpreter warranted consideration, but the independent translation and surrounding evidence overcame any concern.
5. For undue influence and fraudulent calumny, the burden lay on the defendant. Applying Re Edwards (deceased) [2007] EWHC 1119 (Ch), testamentary undue influence required proof of coercion or fraud which overbore the testator’s free agency, while fraudulent calumny required dishonest aspersions made knowingly false or recklessly. No pressure, persuasion or dishonest aspersions were particularised or supported by evidence.
6. The court pronounced for the force and validity of the will and granted reverse summary judgment on the counterclaim insofar as it challenged the will for undue influence, fraud and calumny. The proprietary estoppel, equitable account and inheritance claims were fact-sensitive and were not summarily determined.