When a will is not all that it seems

The High Court delivered a crucial judgement clarifying the stringent evidential burden faced by those seeking to uphold a will challenged on grounds of forgery, particularly when procedural irregularities and a lack of corroborating evidence cast doubt on its authenticity.

Background:

Mr. Shaikh died on 7 April 2020. He was a UK solicitor who owned four properties. His only daughter, Ms. Khatun, challenges his will dated September 2019 (the disputed will), claiming that it is a forgery. The disputed will names Mr. Hasan (the first defendant) as the sole beneficiary, disinheriting Ms. Khatun. Mr. Pathania (the second defendant) is the executor and an attesting witness, alongside Mr. Alam.

Ms. Khatun asserts a good relationship with her father and was unaware of Mr. Hasan. Her claim is supported by forensic handwriting expert Dr. Ruth Myers, who, reviewing a copy of the will, found strong evidence that Mr. Shaikh's signature was forged by someone familiar with his handwriting.

Mr. Hasan claims a very close relationship with Mr. Shaikh, alleging that Ms. Khatun was estranged. Mr. Pathania attests to the will's drafting and execution.
Crucially, the original disputed will, despite being lodged with the Court in 2022, was not provided to experts or made available at trial until the Judge intervened. Post-trial inspection revealed that the copy used by the claimant's expert was missing the attestation page.

Decision: 

Ms. Khatun's claim challenging the validity of the disputed will has succeeded, and the disputed will was declared invalid due to the defendants' failure to prove its authenticity. Deputy High Court Judge Caroline Shea KC first clarified the burden of proof: while a formally attested will typically carries a rebuttable presumption of validity, where forgery is alleged, the ultimate legal burden shifts to the party propounding the will to prove its authenticity on the balance of probabilities.

The Judge found that suspicion was indeed aroused by numerous inconsistencies and oddities surrounding the will's drafting, execution, and revelation, including the lack of corroborative documentation and inconsistencies in the notification timeline. Moreover, it was considered strange that Mr. Shaikh, a solicitor, would draft his own will and entrust the original to Mr. Pathania, rather than to his usual solicitors. The disputed will's specific reference to properties owned by Mr. Shaikh in Pakistan – for which no evidence of their existence was provided by the defendants – and which Ms. Khatun stated Mr. Shaikh never owned, was deemed an "inexplicable mistake for Mr. Shaikh himself to have made" and a significant factor in confirming suspicion.

The defendants failed to provide sufficient evidence to establish the "close, quasi-familial relationship" Mr. Hasan claimed with Mr. Shaikh, which was central to explaining why he would be the sole beneficiary. The limited trail of WhatsApp messages pointed more towards a "close and broadly friendly working relationship" or even "joint scheming" (e.g., concerning the "sham tenancy" for mortgage purposes), rather than a deep personal bond justifying the bequest of an entire estate. 

Given these cumulatively suspicious circumstances, the burden shifted to the defendants to prove the will's authenticity. The Judge found they failed to discharge this burden.

Implications:

The case strongly reiterates and applies the principle from Face v Cunningham and Sangha v Sangha that, where forgery is alleged, the ultimate legal burden of proving the will's authenticity lies squarely on the party seeking to propound it. The case strongly reiterates and applies the principle from Face v Cunningham and Sangha v Sangha that where forgery is alleged, the ultimate legal burden of proving the will's authenticity lies squarely on the party seeking to propound it. This is a crucial clarification for probate litigation.

The judgement highlights the critical role of contemporaneous documentary evidence in supporting claims about a will's creation and surrounding circumstances. This serves as a stark warning to those involved in preparing or witnessing wills, and to legal representatives in subsequent disputes, about the necessity of documenting key interactions. For estates, it underscores the importance of preserving digital and physical records related to the deceased's affairs, especially if a will disinherits a close family member. Oral testimony alone, even from direct witnesses, may be insufficient if uncorroborated.

Where a will makes unusual provisions, particularly disinheriting a natural beneficiary in favour of a non-family member, the propounder must provide robust and credible evidence to explain the testator's intentions. Vague or inconsistent accounts of relationships or financial arrangements will likely be heavily scrutinised and may not satisfy the Court.