Two of the factors that we often see contribute to probate disputes are the value of an estate and increasingly complex family dynamics, particularly where there has been a second marriage or where there are children from different relationships. Disappointed beneficiaries regularly ask us if a will can be challenged. One possible source of grounds for challenge is whether the signature on the will is actually that of the testator.
Such allegations of forgery were centre stage in the recent case of Sangha v The Estate of Diljit Kaur Sangha & Other [2021] EWHC 1599 (Ch). Big money was at stake with the Estate valued at £35million.
‘Complex’ family structures – who’s who?
Hartar Singh Sangha (‘Hartar’) passed away on 3 September 2016. He was survived by his ‘wife’ Jaswinder, whom he had married in an Indian ceremony in 1992 and their son, Harbiksun. He was also survived by his sister, Jagpal.
Prior to this, Hartar had been married to Diljit with whom he shared two children: Sundeep and Mandi.
Though second marriages aren’t uncommon, one of the issues in this ongoing dispute remains whether Hartar had ever divorced his first wife, Diljit, and whether his “marriage” to Jaswinder was valid.
A plethora of wills
Hartar had made (or was alleged to have made) several wills.
The first will, made in 1979, left everything to Sundeep and Mandi, with a life interest granted to Diljit.
In 2003 during a trip to India, Hartar made a will dealing solely with his Indian assets which he left entirely to Jaswinder and their son, Harbiksun.
In 2007 he went on to make a handwritten will (which purported to revoke his 2003 will). This time, the will dealt with both his Indian and English assets, all of which were to be left to Jaswinder.
The authenticity of the 2003 and 2007 wills were ‘hotly disputed’ by the estate of his former wife Diljit and their two children, Sundeep and Mandi. They alleged that his last will was executed in 1979 and related only to his UK assets and that the 2007 will was fabricated by Jaswinder in an attempt to profit from Hartar’s estate.
As if the dispute as to the authenticity of these two wills wasn’t enough, another curve ball was thrown into the proceedings when Hartar’s sister, Jagpal presented yet another will, purportedly executed by Hartar in 2016. The 2016 will, revoked all previous wills, but related only to his Indian assets. If valid, it left all of Hartar’s Indian property to Jagpal, Diljit’s estate, and to his first two children: Sundeep and Mandi. If the 2016 will was indeed valid, this would mean that Hartar had completely written out Jaswinder and their son Harbiksun.
The issue for the Court was therefore is to decide which, if any, of the four known wills made by Hartar were valid.
The test
Cases where an allegation of a forged will are made are rare. The Court emphasised that “the forgery and fabrication of a will and the prosecution of [a case] propounding an entirely fabricated and forged will is a rarity and, for that reason, improbable and that, in consequence, conduct of the scale and of the extent alleged in this case, will require cogent evidence before it can be established.”
This means that very strong evidence must be put before the Court where an allegation of forgery is made. The burden of proving that a will is valid falls on the person who puts forward the will in question. In practice, this evidence usually comes from two sources:
- evidence of the two witnesses to the will – this is the very reason why, in order to be valid under English law, a will has to be signed in the presence of two individuals who also have to sign the will in the presence of the testator. If there is a dispute as to whether or not a will is valid, the witnesses will be asked to confirm (on oath at trial) that the testator did indeed sign the will in their presence; and
- expert evidence from a handwriting expert who will compare the signature of the testator on the alleged will with known signatures of the testator in order to produce an opinion on whether or not the signature is likely to be genuine or a forgery.
In this case, the court found the witnesses to be ‘entirely credible’ with no motive on either of their parts to give either a dishonest or invented account of the execution of the wills.
The court also found that the expert evidence was at least neutral and if anything supported the credibility of the witnesses.
Consequently, it was held that all the wills were valid at the time of their execution. As the 2016 will was Hartar’s last will and expressly revoked all of his earlier wills, this was his only will which governed the devolution of his estate.
As Hartar’s 2016 will dealt only with his Indian assets, those assets will now pass in accordance with the terms of that will. As for his English assets, these will pass in accordance with our intestacy rules. It is for this reason that the validity of his marriage to Jaswinder is now paramount. If she cannot establish that she is in fact Hartar’s surviving spouse, she will not be entitled to any of her late ‘husband’s’ English estate under the intestacy rules.
If you have concerns about the validity of a will or have queries as to how an estate is distributed when there is no valid will, please don’t hesitate to contact us and we will gladly guide you through your options.
