Masudur Rahman v Dewan Raisul Hassan
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 30 May 2024 |
| Neutral Citation | [2024] EWHC 1290 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2021-001068 |
[2024] EWHC 1290 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: PT-2021-001068
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice
Rolls Building, Fetter Lane,
London, EC4A 1NL
Kuldip Singh KC (instructed by direct access) for the Claimant
Owen Curry (instructed by Trowers) for the Defendants
Hearing dates: 28 November to 4 December, 11–12 December 2023
This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 12 noon on 30 May 2024.
INTRODUCTION
General
This is my judgment on the trial of a claim for declarations relating to transactions alleged to have taken place between the claimant and the late Mr Al-Hasib Mian Muhammad Abdullah Al Mahmood (to whom I shall generally refer to as “the deceased”, or “Mr Al Mahmood”). It is said that these amount to donationes mortis causa. That Latin phrase roughly means “gifts in contemplation of death”. The claim is opposed. The first and second defendants are the executors and also beneficiaries of the deceased's will, and the third and fourth defendants are additional beneficiaries under that will. The claimant has previously been represented in this matter by Moore Barlow and later Crown Law solicitors, and until recently was represented by Gateley Legal and counsel. On 24 October 2023, Gateley Legal ceased to act for the claimant, and he is now acting in person. However, the day before the trial, the claimant managed to instruct Mr Kuldip Singh KC by direct access, and, to his great credit, Mr Singh KC was able to pick up the case rapidly, and to appear as advocate for the claimant thereafter. The claimant has cause to be very grateful to Mr Singh KC.
Procedure
The claim form was issued on 14 December 2021, accompanied by particulars of claim. The particulars of claim were later amended and re-amended, the latter on 15 March 2023. However, during the course of the trial I gave permission for a further amendment, which was made on 13 December 2023. The defence of all four defendants and the counterclaim of the first and second defendants (as personal representatives) are in re-re-amended form, dated 6 October 2023. The claimant's re-amended reply and defence to counterclaim is dated 21 April 2023. The claimant obtained permission to serve the claimant on the defendants out of the jurisdiction, in the United States of America, from Master Kaye by order dated 20 December 2021.
The matter was tried before me between 28 November and 12 December 2023. Oral closing submissions were made by counsel on Monday 11 and Tuesday 12 December 2023, accompanied in each case by a written notes as a kind of “roadmap”. During closing submissions the claimant applied for permission to amend his particulars of claim to plead the sending of a text message by Mr Al Mahmood to a Mr Hafez early in the morning of 23 October 2020, the day of Mr Al Mahmood's death. After hearing counsel for the defendants, I permitted the amendment, on the basis that the evidence had covered the point, and the defendants would have the opportunity to make submissions on that matters raised by that amendment, which they did in writing on 8 January 2024. Those submissions were followed by further submissions by the claimant in writing dated 18 January 2024, for which the claimant strictly had no permission, as pointed out by the defendants in an email to me on 22 January 2024. The claimant then responded to that email in a Note to the court dated 25 January 2024. I have briefly considered the submissions of 18 and 25 January, and the email of 22 January, but with respect I do not think they were necessary or have advanced matters.
I am nevertheless grateful to the parties for the immense amount of research and learning which both sides have put into the preparation of this case. I am only sorry for the delay since then in producing this judgment. This is largely the result of pressure of other work, but also of the novelty of the points raised by the case itself, and the need to reflect on the issues raised. I am accordingly grateful for the forbearance shown by the parties.
The claimant's case in summary
The claimant, who is from Bangladesh, claims to be a relative of the deceased, who also came originally from Bangladesh, but much earlier. The claimant says that he (the claimant) came to London in 2011 and there met the deceased and his wife (also from Bangladesh). He says he called them Uncle and Aunty, though he accepts that they were not his genealogical uncle and aunt. These were simply terms of respect for elders to whom he claimed to be related. Over the years, he says, he got to know them better, and they came to rely on him for assistance as they became older, and eventually became ill. The claimant says that he spent increasing amounts of time with them, visiting them several times a week and often staying overnight. Finally, he says, he moved in with them, at their house at 98 Streatham Road, Mitcham, London CR4 2AB. After the death of the deceased's wife, so did the claimant's wife and child.
The deceased's wife (“Aunty”) died first, on 6 October 2020, essentially of pneumonitis, though other important medical conditions were also present. She was 75 years old. By her will, in the events that happened, she left her entire estate to her husband. He, the deceased himself (“Uncle”), died a little over two weeks later, on 23 October 2020. He was 82 years old, and died of bronchopneumonia. But he also was suffering from other medical conditions at the time he died. The claimant alleges that on 15 and again on 20 October 2020, the deceased did acts amounting to donationes mortis causa, in favour of the claimant, of all his assets in the UK. (It appears that he had assets also in Bangladesh, but these are not claimed by the claimant.) These assets include chattels, bank accounts and other choses in action, and registered land (both freehold and leasehold). They include assets formerly belonging to his late wife, either because they were inherited from her on her prior death, or because they were owned as beneficial joint tenants and he survived her.
The defendants are not blood relatives of the deceased. But they are blood relatives of his late wife. The first defendant is her brother. The second to fourth defendants are her nieces, the daughters of her sister (who is not a beneficiary of the deceased's will, and therefore not a defendant). They claim under the last will of the deceased, made in 2015. The claimant says that, at the time of his death, the deceased had given instructions for a new will, in the claimant's own favour, but this had not been executed at the date of the death. The first and second defendants have proved the deceased's 2015 will, and, as I have said, defend these proceedings as the deceased's personal representatives. The gross value of the UK estate for probate purposes was stated to be £1,408,634. However, interim administration accounts prepared on behalf of the first and second defendants showed an estate with a total value of £3.15 million, although that includes non-UK assets valued at £310,000.
Obviously, to the extent that any of the claimed donationes mortis causa is valid and effective, the asset or assets so disposed of falls or fall outside the deceased's estate, and therefore the 2015 will. The defendants are highly suspicious of the claim of the claimant. It is a feature of this case that the only living witnesses to the events said to amount to donationes mortis causa are the claimant himself and, to a lesser extent, his wife. The defendants can say nothing directly about them. But, of course, there is considerable background and indirect evidence of which I must take account.
HOW JUDGES DECIDE CASES
For the benefit of the lay parties in this case I will say something about how English judges decide civil cases like this one. I borrow the following words largely from other judgments of mine in which I have made similar comments. First of all, judges do not possess supernatural powers that enable them to divine when someone is mistaken, or not telling the truth. Instead, they take note of the witnesses giving live evidence before them, look carefully at all the material presented (witness statements and all the other documents), listen to the arguments made to them, and then make up their minds. But there are a number of important procedural rules which govern their decision-making, some of which I shall briefly mention here, because non-lawyer readers of this judgment may not be aware of them.
Burden of proof
The first is the question of the burden of proof. Where there is an issue in dispute between the parties in a civil case (like this one), one party or the other will bear the burden of proving it. In general, the person who asserts something bears the burden of proving it. So, the claimant must prove that the acts he relies on as donationes mortis causa satisfy the requirements for that doctrine to apply. The position of the defendants as beneficiaries under the 2015 will is not challenged. They do not have to prove anything.
The importance of the burden of proof is that, if the person who bears that burden satisfies the court, after considering the material that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then for those purposes it did not happen. The decision is binary. Either something happened, or it did not, and...
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