Mosammat Shapna Khatun v Shamim Hasan & Anor

Where the authenticity of an apparently executed will is challenged as a forgery, the party propounding it bears the legal burden of proving its genuineness on the balance of probabilities if the circumstances arouse suspicion.

The statutory presumption arising from apparent compliance with testamentary formalities concerns technical validity. It does not displace the requirement to scrutinise the surrounding circumstances where genuineness is in doubt. The court is not required to adjourn a probate trial merely to remedy a party’s failure to obtain expert evidence in time. The importance of producing the original will and, where necessary, evidence from attesting witnesses does not create a general duty to facilitate late expert evidence.

The claimant, the deceased’s only child, challenged a will which purported to leave the whole estate to the first defendant and appointed the second defendant as executor and attesting witness. The claim originally included want of due execution and fraud, but only the fraud challenge remained.

The original will had been lodged with the court but was not inspected at trial. The defendants sought, after trial, an adjournment to obtain handwriting evidence and call experts. The court refused that application, distinguishing the procedural deficiencies considered in Payne v Payne. The central issues were whether the circumstances surrounding the will’s execution aroused suspicion, who bore the burden of proof, and whether the defendants had established that the will was genuine.

1. Application for adjournment. The application to adjourn after trial to obtain handwriting evidence and call experts was refused. Payne v Payne concerned the failure to produce the original will and the absence of evidence from attesting witnesses. Those deficiencies had been remedied or avoided here: the original was inspected and both attesting witnesses had given evidence and been cross-examined. Payne did not impose a general duty to adjourn so that a party could remedy its failure to prepare expert evidence. The application fell to be determined by the court’s case-management powers and the overriding objective (paras [13]-[26]).
2. Burden of proof. A person propounding a will must prove due execution. Where forgery or fabrication is alleged and the circumstances arouse suspicion, the burden remains on the propounder to establish genuineness on the balance of probabilities. The rebuttable presumption arising from an apparently duly executed document concerns compliance with statutory formalities and technical validity. It does not govern the separate question whether the testamentary instrument is genuine (paras [27]-[34]).
3. Suspicion and evidence. The absence of expected contemporaneous records, unexplained inconsistencies concerning the will’s drafting and production, the unexplained reference to Pakistani property, and the lack of reliable evidence of the alleged quasi-familial relationship were sufficient collectively to arouse suspicion. The defendants’ uncorroborated oral evidence did not discharge the burden (paras [82]-[113]).
4. Expert evidence. The claimant’s handwriting report was reasoned and was not an impermissible bare assertion. Under the general rule identified in TUI UK Ltd v Griffiths, the defendants could not undermine it in closing submissions without cross-examination. The relevant exceptions did not apply. The report was not decisive, but its conclusion was consistent with the court’s independent assessment (paras [114]-[122]).
5. The defendants failed to prove that the disputed will was genuine. Consequential issues, including probate administration and costs, were adjourned to a further hearing (para [123]).

Not an appeal. The judgment was a first-instance determination of a probate claim in the High Court.