Charles Hollander QC sitting as a Deputy High Court Judge has recently given judgment in Gupta v Gupta  EWHC 1353 (Ch), a case in which the validity of the deceased’s last Will was challenged solely on the basis that she lacked knowledge and approval of the contents.
Whilst it doesn’t break any new ground on the law, it is an usual case on the facts. Not least, because the Will was drafted by Anal Sheikh.
That name is likely to be familiar to many lawyers (including the 500 or so barristers and solicitors who were emailed by her last year in the course of her continuing tirade against the judiciary, the SRA, and various law firms and barristers). Ms Sheikh is a former solicitor who was struck off the roll in 2009, on the grounds of dishonesty, forgery and impropriety, and who, since that time, has embarked upon the most extraordinary campaign of litigation.
A general civil restraint order was made against her in 2009, and has since been extended on a number of occasions, including last year by Turner J, who characterised her conduct as follows (Sheikh v Page & Anor  EWHC 1772 (QB) (13 July 2017)):
“28. There are some unlucky people for whom litigation becomes akin to an addiction; harmful, destructive and all-consuming. As with all other compulsions, the adverse impact is not only upon the sufferer but also upon those around them. In order to rationalise her conclusion that virtually every judge who has made a finding adverse to her and virtually every counsel who has represented the interests of those whom she opposes is part of a vast conspiracy of fraud, she has convinced herself that the United Kingdom is governed by a malevolent juristocracy the corrupting influence of which permeates through and contaminates other institutions including, but by no means limited to, the Land Registry and the Solicitor’s Regulation Authority.”
Just pause for one moment to digest the prospect of having to call as a witness in support of your case a former solicitor who has not only been struck off for dishonesty but who has repeatedly plagued the courts with fantastical and vexatious applications, to the extent that she has been restrained from issuing any application or claim. Add to your woes the loss of the original Will file.
That was the position that the defendants faced in Gupta v Gupta & Ors and the claimant seeking to challenge the Will was no doubt emboldened by Ms Sheikh’s extraordinary reputation. In circumstances where the deceased was in a traditional marriage to a loving but dominant man, spoke only limited English, suffered from a range of health complaints, and had no known reason for making unequal provision for the claimant, this would appear to be fairly fertile ground for a knowledge and approval challenge. However, after careful scrutiny of the facts, Charles Hollander QC held that there were no suspicious circumstances and upheld the Will.
The deceased, Urmila Gupta, died on 25 February 2014, aged 84. Her husband, Laxmi Gupta, had died before her in April 2009. Urmila and Laxmi had three children: a daughter, Sashi, and two sons, Rakesh (the claimant) and Naresh.
Rakesh contended that the Urmila’s last Will, dated 20 November 1998, was invalid on the grounds that Urmila lacked knowledge and approval of the content. The Will provided for Naresh to receive Urmila’s residence, and the residue of her estate was divided equally between the three children.
Urmila had made no other Will in relation to her English estate. She did make an Indian Will in relation to her Indian estate, valued at approximately £750,000. The Indian Will was not challenged by Rakesh. Consequently, if the claim had succeeded, Urmila’s estate would have fallen to be divided between her children under the intestacy rules in three equal shares.
Rakesh alleged that there were four background matters which ought to exite the suspicion and vigilence of the court and to bear on the inherent probabilities in determining whether or not the Will was executed with Urmila’s knowledge and approval:
- The dominance of Laxmi;
- Urmila’s limited understanding and her inability to comprehend written / spoken English;
- The physical and mental conditions which Urmila suffered from; and
- The absence of any good reason as to why Urmila would want to create such a disparity in the benefits received by her three children under the Will.
Laxmi and Urmila had moved from India to the UK in 1957, following Laxmi’s posting to the High Commission in London. When his posting came to an end, Urmila wanted to remain in the UK and Laxmi followed her wishes.
Urmila’s physical health began to deteriorate during the 1990s. She was overweight and had a number of physical ailments which restricted her mobility. There was also some evidence that she had had hearing and sight problems. After 2000, she began to suffer from dementia and in August 2006 had a stroke. Her principal carer, until his death, was Laxmi, who was described as being devoted to her.
Ms Sheikh’s evidence was, predictably, extraordinary. When initially asked to assist in the present case, she is reported to have responded with an “enormously long tirade” against the justice system, peppered with “individual accusations of corruption and dishonesty against most of the senior judiciary”.
In cross-examination, she refused to acknowledge that Henderson J, who had held that 12 consecutive applications made by her were totally without merit, was actually a judge (and said the same of a number of other judges), refused to accept the jurisdiction of the SRA over her activities as a solicitor, as well as claiming to have acted on 100,000 conveyancing transactions (as the Judge observed necessitating 15 new instructions, 365 days a year throughout her career).
In terms of her evidence in relation to the Will, she contended that she would never have prepared and witnessed a will for a client who could not read and/or understand English unless an interpreter had been present. She noted that she would have recorded in the attestation clause of the Will if an interpreter had been required.
The attestation clause recorded that Urmila had been able to read but unable to write her name (this was due to a tremor) and had signed with a thumb print instead. From this, Ms Sheikh drew the inference that Urmila had been fully able to read and understand the terms of the Will herself.
The Judge formed the view of Ms Sheikh that she would often say the first thing that came into her head, without reflecting on it, and that he could not safely rely on her evidence in this case unless there was material which supports or corroborates it.
Ms Sheikh’s receptionist, Mrs Varsani, who had witnessed the Will, also gave evidence at the trial. Her evidence was that Ms Sheikh’s practice was to explain the will, taking the client through each paragraph, before Mrs Varsani would witness the will.
Naresh’s wife, Meena, gave evidence that she had driven Urmila and Laxmi to Ms Sheikh’s offices on two occasions, indicating that Urmila had been present both when instructions for the Will were given and at the date of execution of the Will.
The Judge further heard evidence from 10 members of the Gupta family, including Urmila’s six grandchildren (now adults). He placed particular reliance on the evidence of the grandchildren concerning Urmila’s physical and mental abilities in the 1990s, when they were all young, and as to how much English she understood.
He also watched six and a half hours of video evidence of family gatherings, in which Urmila was recorded as speaking no more than a handful of words in English: “OK” and “Happy Diwali”.
The applicable law
Whilst Gupta v Gupta does not establish any new point of principle, it contains a helpful and thorough review of the law as it applies to the requirement of knowledge and approval, which is worth recapping as a reminder of the applicable principles.
Theobald on Wills summarises the requirement of knowledge and approval as follows:
“A testator must know and approve of the contents of his will. This is because a will must be the result of the testator’s own intelligence and volition, though its contents need not originate from the testator provided he understands and approves them. But a will is invalid if its contents originate from another person and the testator executes it in ignorance of its contents.”
Traditionally, the courts have analysed the question of whether or not a testator has executed a will with knowledge and approval of the contents in two stages. The first stage is to ask whether the circumstances were such as to ‘excite suspicion’ on the part of the court. If so, the burden is on the propounder of the will to establish that the testator had known and had approved the contents of the will. At the second stage, the court will consider, having regard to the degree of suspicion raised, whether there is enough evidence to allay the suspicions raised.
The modern approach to the question of knowledge and approval, following the decision of the Court of Appeal in Gill v Woodall  EWCA Civ 1430, is for the court to consider as a single question: did the testator understand (a) what was in the will when he or she signed it and (b) what its effect would be. All of the relevant evidence must be considered, and the court must draw such inferences as it can from the totality of the material in reaching its decision as to whether or not the propounder of the will has proved that the testator knew and approved its contents. Of course, as Lord Neuberger MR observes in Gill (para. 23), the outcome should be the same whether the traditional or modern approach is taken.
Charles Hollander QC adopted a single stage approach and it would appear that the nail is firmly in the coffin of the old two stage test.
Gill was a highly unusual case on its facts in that the testatrix had executed her professionally drawn will at her solicitors office, after it had been read over to her. However, she suffered from extreme agrophobia and panic disorder, which deprived her of her ability to comprehend the will that she was executing. The exceptional nature of the circumstances in Gill was emphasised by the Court of Appeal itself and has been reiterated in many want of knowledge and approval cases since. Gupta being no exception.
Charles Hollander QC in Gupta cited with approval the following helpful summary of the principles set out by the Court of Appeal in Gill applying to want of knowledge and approval cases, and in particular the nature of the burden of proof, by Norris J in Wharton v Bancroft  W.T.L.R. 693 at :
“(a) The assertion that Mr Wharton did not “know and approve” of the 2008 Will requires the Court, before admitting it to proof, to be satisfied that Mr Wharton understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions.
(b) The burden lies on Maureen to show that Mr Wharton knew and approved of the 2008 Will in that sense.
(c) The Court can infer knowledge and approval from proof of capacity and proof of due execution (neither of which the Daughters now dispute).
(d) It is not in issue that the 2008 Will was read over to Mr Wharton. The Court of Appeal observed in Gill v Woodall at paragraph , that, as a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testator, raises a very strong presumption that it represents the testator’s intentions at the relevant time.
(e) But proof of the reading over of a will does not necessarily establish “knowledge and approval”. Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself.
(f) So the Daughters must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn.
(g) It is not for them positively to prove that he had some other specific testamentary intention: but only to lead such evidence as leaves the court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge.
(h) Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.”
On the facts, Charles Hollander QC concluded in rejecting the challenge to the Will that:
The dominance of Laxmi
Whilst there was evidence supporting the view that Laxmi was the head of a traditional, male centred family, the relationship between Laxmi and Urmila was a close and loving one. It was apparent that in some spheres, Urmila had real influence over him, such as the decision to remain in England. Given their close relationship, the Judge considered that it would be astonishing if Laxmi had not discussed with Urmila the content of their mirror Wills before execution.
Whilst Urmila might have been prepared to go along with Laxmi’s wishes, that was not, in the absence of undue influence, a suspicious circumstance – on the contrary, as Lord Neuberger had considered on the facts of Gill, it provides an explanation for the terms of the Will.
Urmila’s limited understanding of English
There was a conflict in the evidence regarding Urmila’s English language skills. Some of the witnesses gave evidence that Urmila had only a handful of English words. However, the grandchildren who had lived with her gave evidence of Urmila holding conversations with them in English. The conflict in the evidence could be resolved on the basis that Urmila would naturally have conversed in her first language, Hindi, with people who could understand Hindi and did not have the confidence to express herself in English in a group, whereas she would have no choice but to speak English with those of her grandchildren who did not speak Hindi. There was further evidence from her carers indicating that she had at least a modest understanding of the English language.
Urmila’s physical/mental illness
Whilst there was evidence that Urmila had suffered from a range of physical health problems and, later in her life, dementia. It had not been shown that her mental and physical health had impaired her ability to know and understand the content of her Will. There were no real signs of dementia at the time that she made her Will, although she developed signs of dementia in about 2000. It was also noted that Urmila had regularly travelled to India in the years leading up to making her Will, and had continued to do so for a further three years after her Will.
The absence of any good reason why Urmia would want to create a disparity in the benefits received by her three children
The Judge did not not consider that there was anything in this point. It was inescapable that Laxmi sought to create a disparity in benefits between his children. His reasons remained a matter of speculation, however Ms Sheikh in correspondence with him had flagged the point to him and it was clear that this was a deliberate intention on his part. It was not surprising that Urmila went along with his wishes, as head of the family. Moreover, Urmila’s Indian Will also did not make equal provision for her children.
Execution of the Will
In circumstances where he considered that he could place no reliance on Ms Sheikh’s evidence in relation to execution and in the absence of a will file, Charles Hollander QC posed himself the following three logical possibilities for the purposes of testing the position:
(1) Ms Sheikh and Ms Varsani’s evidence is correct, and that Ms Sheikh explained the material terms of the will to Urmila and/or Laxmi did so.
(2) No explanation was given to Urmila and she executed a will that she did not understand or approve and Laxmi stood by and permitted her to do so.
(3) Urmila executed her Will not caring what its contents were.
In the light of the evidence he had heard, he concluded that he had no doubt that Urmila would not have executed a will if she did not understand and approve its terms, and had no doubt that Laxmi as a fundamentally decent loving husband would not have permitted her to do so. He did not think that Ms Sheikh’s receptionist, Mrs Varsani would have agreed to witness the Will if she thought that the deponent did not approve or understand it and, whatever might be said about Ms Sheikh now, did not think that she would have done so in 1998 either (observing that her correspondence suggested that she was anxious that her clients should understand the content of the Wills). Meena’s evience that both Laxmi and Urmila had attended Ms SHeikh’s offices on two occasions was also significant, as it indicated that Urmila had been infolved in the pre-execution discussions and had not merely turned up to sign the Will.
In these circumstances, Charles Hollander QC concluded that there were no suspicious circumstances concerning the execution of the Will.
Learning points for practitioners
- The key takeaway point for me is that there is a need to really probe the evidence that is said to amount to suspicious circumstances, such that there should be doubt about the knowledge and approval of the Will. What appeared, at a superficial level, to be at least a plausible basis for suggesting that there were suspicious circumstances, on further probing could be readily explained. Medical evidence, for example, suggesting that Urmila had sight and hearing problems, when considered in the context of the other evidence did not suggest that she would have struggled to have read and comprehended the Will. Urmila’s English language skills on further scrutiny were also not as limited as might have been indicated by the video evidence.
- The case underscores an important point that clients sometimes struggle to understand – persuasion is not, in and of itself unlawful, provided that someone’s free will in the matter is not overborne. The fact that Urmila may have chosen to fall in with her husband’s wishes, in the absence of evidence of undue influence, did not amount to suspicious circumstances but provided an explanation for her decision.
- The judgment gives careful scrutiny to Rakesh’s case, however the inherent probabilities of the situation, and in particular the likelihood that Laxmi, on all accounts a loving husband, would not have allowed his wife to sign a Will that she did not understand, appear to me to have weighed heavily in the Judge’s thinking. This is a point that I often explain to clients – judges bring to a case their own ideas about human nature and inevitably, where the person at the centre of the story is dead and cannot speak for themselves, inference and the Judge’s views about the inherent probabilities of the situation will feature in the Judge’s evaluation of the evidence. This facet of judicial thinking is particularly evident in this case, where no reliance could be placed on the evidence of Ms Sheikh.
- Lack of evidence from the will draftsman, or unreliable evidence from the will draftsman, will not necessarily be fatal. Much depends upon the circumstances of the case – where there is greater cause for suspicion, this is likely to be a much more pivotal factor.
- The single-stage approach to analysis in want of knowledge and approval cases is now firmly established. To my mind, this lacks the analytical rigour of the traditional two-stage approach, which threw the burden of proof on the propounder of the will to dispel the suspicious circumstances once cause for suspicion had been established, and makes it more difficult to succeed in want of knowledge and approval cases.