Ahmed and Another v Ahmed
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Lord Justice Moore-Bick |
| Judgment Date | 12 May 2016 |
| Neutral Citation | [2016] EWCA Civ 686 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2014/3777 |
| Date | 12 May 2016 |
[2016] EWCA Civ 686
Lord Justice Moore-Bick
and
Lord Justice Vos
Case No: A3/2014/3777
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(MISS RECORDER McALLISTER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr R Brown (instructed by Solomons Legal Solicitors) appeared on behalf of the Appellants
Mr A Beaumont (instructed by Straw & Pearce Solicitors) appeared on behalf of the Respondent
(Approved by the court)
This is an appeal against the order of Miss Recorder McAllister sitting in the County Court at Central London pronouncing against the force of validity of the alleged last will and testament of Mr Nisar Ahmed Choudhry dated 20 September 2005. Mr Choudhry died in Bangladesh on 15 May 2006. The order was made because the Recorder was satisfied that the will was a forgery.
The grounds of appeal in this case are that the Recorder was guilty of a serious procedural irregularity in allowing the claimants to amend their Particulars of Claim on the first day of the trial to include an express allegation that the document purporting to be the deceased's will had in fact been forged and, having allowed the claimants to make that amendment, had refused the defendants permission to amend their pleadings or to adduce expert evidence tending to support their case that the signature purporting to be that of the deceased was in fact genuine. The defendants also allege that the judge erred in allowing the claimants to adduce evidence from Bangladesh in support of their case and gave them no opportunity to adduce evidence in response. For completeness I should mention that a separate ground of appeal that the judge was wrong to grant the claimants letters of administration in relation to property situated in this country without considering expert evidence on the question whether they were entitled to share in the deceased's estate under the law of Bangladesh has not been pursued.
The parties to the action are all members of the deceased's family. The defendants are his five children by his first wife. The claimants are his two children by his second wife. The deceased died possessed of real and moveable property in Bangladesh and real property in this country in the form of premises at 5 Ridley Road, Wimbledon. It originally appeared that the deceased had died intestate and on 6 November 2006 the first and second defendants were granted letters of administration. When they completed the return of the estate information sheet for the Inland Revenue, they stated that the deceased had only five children. It appears that they proceeded to get in and distribute the estate among the five defendants.
On 19 March 2013 the claimants obtained an order that the first and second defendants provide a full inventory of the deceased's estate. Immediately thereafter the defendants produced a document purporting to be the deceased's will which was said to have been found by the third defendant in a steel cabinet at a house in Sylhet owned by the deceased. It was said that the will had been found in May 2012, but, whether that was the case or not, it was not produced until March 2013. The production of the will led the claimants to apply to have the letters of administration revoked. The proceedings seeking revocation of the letters of administration were issued in the Family Division of the High Court but were transferred first to the Chancery Division and thence to the County Court at Central London.
In their particulars of claim served on 7 August 2013 the claimants alleged that the defendants had failed to make any distribution to them. No allegation was made at that stage that the will was a forgery, but from as early as 1 May 2013 the claimants' solicitors made it clear in correspondence that its validity was not accepted. They said they were considering instructing a handwriting expert. The will had apparently been witnessed by two Bangladeshi lawyers, Mr Hossain and Mr Safdar. In an affidavit dated 7 August 2013 Mr Hossain said that, despite what appeared to be his signature on the will, he had not in fact signed it. Mr Safdar in an affidavit also dated 7 August 2013 said that he had never known the deceased and had not witnessed the will, which must therefore be a forgery. Those affidavits were filed on 13 March 2014 in opposition to the defendants' application for summary judgment, and a list of issues prepared for that hearing included the issue "whether the will was made by the deceased or was a forgery". At that stage the claimants appear to have been relying solely or primarily on the evidence of Mr Hossain and Mr Safdar in support of their case.
On 21 March 2014 the matter came before HHJ Dight on the defendants' application for summary judgment. That application was dismissed and the judge gave directions for preparations for trial. Paragraph 15 of his order records that, since it was agreed that no expert evidence was required, neither party should have permission to rely on expert evidence without further order. Pursuant to HHJ Dight's order, a pre-trial review was fixed for 5 September 2014. Shortly thereafter on 4 April 2014 the claimants served amended particulars of claim pursuant to the permission granted by HHJ Dight on 21 March. They included for the first time an allegation that the will had not been duly executed and witnessed, but no further particulars were given and forgery was not expressly alleged. In their amended defence and counterclaim served on or about 1 May 2014 the defendants alleged that the will had been duly executed and witnessed by two Bangladeshi lawyers as required by law.
On 12 June 2014 Mr Hossain swore a second affidavit in which he said that he and Mr Safdar (who had since died) had in fact witnessed the execution of the will by the deceased. He said that he had been contacted by the first defendant and as a result he had reflected upon the matter. He had also spoken to Mr Safdar and could now confirm that both of them had in fact witnessed the will. He explained his former affidavit by saying that he was 69 years old and could not always remember things that had happened some years before.
On 17 June 2014 the claimants served their list of documents. It described various documents tending to show that the stamps affixed to the will had not been issued at the time when it purported to have been made. I think one can fairly assume that those documents were inspected in the usual way and that if the defendants had wished to investigate the matter they could have done so.
On 5 September 2014 the matter came before Mr Recorder Chapman, QC for the pre-trial review. The...
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