Re Sangha, Sangha v Sangha
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee,Lady Justice Carr,Lord Justice Arnold |
| Judgment Date | 15 June 2023 |
| Neutral Citation | [2023] EWCA Civ 660 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001933 |
[2023] EWCA Civ 660
Lord Justice Arnold
Lady Justice Carr
and
Lord Justice Nugee
Case No: CA-2022-001933
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
APPEALS (ChD)
Simon Gleeson (sitting as a Deputy High Court Judge)
In the Estate of Hartar Singh Sangha deceased (Probate)
Royal Courts of Justice
Strand, London, WC2A 2LL
Alexander Learmonth KC and William East (instructed by Huggins Lewis Foskett Solicitors) for the Appellants
Penelope Reed KC and Mark Blackett-Ord (instructed by Sebastians Solicitors) for the 1 st Respondent
Hearing date: 25 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 15 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This second appeal arises after judgment in a probate action that was tried before Deputy Master Bowles, an experienced former Chancery Master who was sitting in retirement ( “the Deputy Master”), and raises two main questions. The late Hartar Singh Sangha died on 3 September 2016 in Chandigarh, Punjab, India aged 72 leaving substantial assets both in England and in India. He made a will in 2007 dealing with both his English and Indian assets. He made another will in 2016 which disposed only of his Indian assets. This was declared to be his last will and contained a revocation clause revoking “all such previous documents”. The first question is whether this was effective to revoke the 2007 will in its entirety, as the Deputy Master held after trial of the action, or only effective to revoke the 2007 will to the extent that it dealt with his Indian assets, as Mr Simon Gleeson, sitting as a Deputy High Court Judge, ( “the Deputy Judge”) held on appeal.
The second question only arises if the 2007 will was not wholly revoked, and concerns the requirements for due execution in s. 9 of the Wills Act 1837 as amended. The question is whether a will is duly executed if the order of events is (i) testator signs in the presence of witness 1; (ii) witness 1 attests the will; (iii) witness 2 then comes into the room and testator acknowledges his signature in the presence of both witnesses; and (iv) witness 2 attests the will. Is this sufficient (as both the Deputy Master and the Deputy Judge held)? Or must in such a case witness 1 acknowledge his signature after the testator has acknowledged his signature in the presence of both witnesses? There is also a question, if the latter is the case, whether the Deputy Master was entitled to find as a fact in the present case that witness 1 did acknowledge his signature after the testator had done.
There is also a subsidiary issue as to the form of order the Deputy Judge made.
Facts
There was a complex background to the dispute, and the Deputy Master heard a considerable amount of evidence over the course of a 9-day trial not only in relation to the probate claim but also in relation to a proprietary estoppel claim that was tried at the same time. He set out his findings of fact in a lengthy, careful and detailed judgment handed down on 16 June 2021 at [2021] EWHC 1599 (Ch). This deals with a large number of factual and legal issues. What follows is only a brief summary, but sufficient to explain the questions that arise. I will refer, as both judges below and counsel have done, to Hartar Singh Sangha as “Hartar” and to the other members of his family by their first names. Numbers in square brackets in this section of my judgment refer to paragraphs of the Deputy Master's judgment.
Hartar was born in Punjab in 1944. When he died in 2016, he left two families, consisting respectively of his first wife Diljit, their son Sundeep and their daughter Mandeep or Mandi, and of his second wife Jaswinder and their son Harbiksun. I have referred to Diljit and Jaswinder as his “wives”, as he himself did in different wills, but as will appear there is a dispute, not yet resolved in these proceedings, as to which of them he was lawfully married to. He was also survived by his sister Jagpal.
There were four wills made by Hartar, all in English, which were in evidence. I give the details below but in summary they were:
(1) A will dated 20 July 1979 ( “the 1979 will”). This was made in England and left his estate to Diljit, Sundeep and Mandi. It is not suggested that this will is operative. On the Deputy Master's findings, this will, if not already revoked by Hartar's marriage to Jaswinder, would have been revoked by the 2003 will (if that had been operative), and was revoked by the 2016 will.
(2) A will dated 5 March 2003 ( “the 2003 will”). This was made in India and left his Indian assets to Jaswinder and Harbiksun, or failing them Sundeep. This will is also accepted not to be operative; on the Deputy Master's findings it would have been revoked by the 2007 will (if that had been operative), and was revoked by the 2016 will.
(3) A will dated 16 April 2007 ( “the 2007 will”). This was made in India. It left his estate, both in India and the UK, to Jaswinder, or, failing her, Harbiksun. As already referred to, two questions arise in relation to this will: (i) was it wholly revoked by the 2016 will or only insofar as it disposed of Indian assets? and (ii) if it was not wholly revoked, was it validly executed?
(4) A will dated 21 March 2016 ( “the 2016 will”). This was made in India. It left his Indian assets to be divided into four equal shares between Sundeep, Diljit, Harbiksun and Jagpal. It is not now disputed in these proceedings that this is a valid will and is Hartar's operative will.
Hartar is said to have married Diljit in Punjab in a customary Sikh ceremony in October 1962, but Jaswinder has disputed whether Diljit was ever lawfully married to him [4]. In 1963 he moved to England and in 1965 Diljit joined him [5]. Sundeep was born in 1969 and Mandi in 1972, both being born in the UK [5]. In these proceedings Diljit, who survived Hartar by some 18 months, was initially the 1 st Defendant. She died in March 2018 however, aged 75, and her estate is now represented by Sundeep [3]. Sundeep himself was the 2 nd Defendant and Mandi the 3 rd Defendant. Diljit's estate, Sundeep and Mandi are the Appellants in this Court.
In 1979 Hartar made the 1979 will. Its validity was accepted by all parties [64], although it is not disputed that it has been revoked. It is typed, professionally drawn by a firm of English solicitors in Essex, and in conventional English form. It is witnessed by a secretary and a receptionist with English addresses and evidently made in England. It is dated 20 July 1979. It appointed the partners in the firm as executors and trustees and left “all my estate” subject to payment of expenses and debts to his trustees on trust as to half for “my wife Diljit” for life, with remainder to his children Sundeep and Mandi, and as to the other half for his children, thereby closely following the provisions under English law on intestacy. There is no suggestion in the will of separate provision being made for any assets in India, there being no reference to India in the will at all, nor indeed is it known if Hartar did then own any assets in India.
Hartar in due course became a British citizen. By 1990 he had acquired a substantial English estate in the shape not only of a successful bathroom fittings business but also of various properties [10]–[11]. He had in 1983 bought a plot in Hainault Road, Chigwell and had been building a house there over the years as a family home [5]. It was finished in 1990 and the family moved there [5]. Diljit in fact continued to live in Hainault Road until her death [7], although she never had any legal or beneficial interest in the property.
Hartar's sister Jagpal had some time before 1990 joined Hartar in England, and she moved with the family to Hainault Road [6]. But it appears that Diljit and Jagpal did not get on, and in 1991 Diljit asked Jagpal to leave [8]. That seems to have been the catalyst for the breakdown of the relationship between Hartar and Diljit, and when Jagpal left Hartar did too [9]. They both returned to India and went to live in Chandigarh, where in due course Hartar bought a house [9]. Thereafter Hartar seems to have divided his time between India and England [16].
In August 1992 Hartar married (or purportedly married) Jaswinder in Jalandhur in India [2]. The validity of this marriage is disputed, Diljit's estate claiming that he lawfully married Diljit in 1962 and was never divorced [4]. That was an issue raised on the pleadings in these proceedings, but it was agreed that it would not be addressed in the trial before the Deputy Master and it remains an unresolved issue [2]. In these proceedings Jaswinder was the Claimant, and the only active Respondent in this Court.
Hartar did not tell Diljit of his marriage to Jaswinder, and only told Sundeep in 1994 when the two of them travelled together to Chandigarh [18]–[19]. By then Hartar had developing business interests in India and he told Sundeep that he, Hartar, would look after those but that Sundeep should look after the family's affairs in the UK and would be his successor and would get everything in the UK [19].
In 1998 Hartar and Jaswinder set up home together in England, although again he did not tell Diljit or Sundeep, and Sundeep only learned of it from his father in 2002 [23].
In 2001 Hartar's and Jaswinder's son Harbiksun was born [2]. Harbiksun was the 4 th Defendant, but took no part in the...
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