Sangha v Sangha
| Jurisdiction | England & Wales |
| Judge | Mr Simon Gleeson |
| Judgment Date | 12 August 2022 |
| Neutral Citation | [2022] EWHC 2157 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CH-2021-000221 |
[2022] EWHC 2157 (Ch)
Mr Simon Gleeson
SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CH-2021-000221
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS DIVISION
IN THE ESTATE OF HARTAR SINGH SANGHA DECEASED (PROBATE)
ON APPEAL FROM THE ORDER OF DEPUTY MASTER BOWLES DATED 21
SEPTEMBER 2021 (PT-2017-000104)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Mark Blackett-Ord (instructed by Sebastians) for the Appellant
Mr. William East (instructed by Huggins Lewis Foskett Solicitors) for the First to Third Respondents
The Fourth and Fifth Respondents did not appear and were not represented
Hearing dates: 20 th July 2022
APPROVED JUDGMENT
This is an appeal against one part of the order of Deputy Master Bowles dated 21 September 2021 in this matter.
When Hartar Singh Sangha (‘Hartar’) died on 3 September 2016, he left behind him a complex family life and a large portfolio of property and other assets in both the UK and India. He was a prolific writer of wills, and the interaction of these instruments has produced significant disputes amongst his family members. These disputes were largely resolved by Deputy Master Bowles in a 9-day hearing in late 2020, which resulted in a 59-page closely-written judgement addressing almost every aspect of Hartar's life and activities.
In order to understand what follows, it is necessary to briefly overview the testamentary and family picture with which Deputy Master Bowles was presented. In summary, Hartar at some points in his life regarded himself as married to the first respondent, (Diljit). At other points, he regarded himself as married to the appellant (Jaswinder). The question of who he was married to, and when, is to be determined at a subsequent hearing.
Deputy Master Bowles had before him four wills executed at various times by Hartar:
a. A 1979 will which provided (inter alia) that half of his property should be held on trust for life for “my wife Diljit”, remainder to his two children by Diljit, Sundeep and Mandi, and the other half to Sundeep and Mandi.
b. A 2003 will covering only his properties in India. These were bequeathed to “my wife Jaswinder” and his son by Jaswinder, Harbiksun, jointly. If both of them predeceased him, the property was to go to Sundeep.
c. A 2007 will, covering all of his property in the UK and India. This was bequeathed to “my wife Jaswinder”, or, if she predeceased him, to Harbiksun. A portion of this will is devoted to providing that Jagpal should have no interest whatever in any of his property.
d. A 2016 will — again covering only land and assets in India, and provided that these should go in four equal shares to Sundeep, “my wife Daljit”, Harbiksun and Jagpal.
The 2016 will contained a clause in the form “this is my last and final WILL and all such previous documents stand cancelled”. It is this phrase which is the basis of this appeal.
The Deputy Master held that that these words were effective to revoke all of the previous wills, such that the 2016 will was the only valid existing testamentary instrument. Since it dealt exclusively with property in India, it could not be admitted to probate in the UK, but could be and was declared to be authentic and valid. This finding had the necessary consequence that the English property must therefore be dealt with as an intestate estate.
The appellant contends that the intended effect of the clause cited was not to revoke the 2007 will in its entirety, but only to the extent that it applied to the property specifically bequeathed by the 2016 will, and that the Deputy Master was wrong to conclude otherwise. She therefore argues that the two wills can and should be read as coexisting.
The respondents support the Deputy Master's decision on the interpretation of the revocation clause. However, they also present a conditional cross-appeal. They say that the Deputy Master was wrong to conclude that the 2007 will was validly executed as a matter of English law, and that the English assets should therefore be dealt with as an intestate estate. If I were to decide against the appellant on her appeal this would be a moot point, since that is the effect of the Deputy Master's decision in any event. However, the respondents say that even if I decide in favour of the appellant on her appeal, the invalidity of the 2007 will under English law means that the English assets should in any event be dealt with as an intestate estate.
The Appeal
As noted above, the appeal turns on the construction of the provision of the 2016 will
“this is my last and final WILL and all such previous documents stand cancelled”
The Deputy Master expressed the view in his judgement that the correct interpretation of this phrase was “All other wills are cancelled” (para 203).
The appellant's case is that this is not a correct interpretation of the provision. Specifically, the appellant's case is that the 2016 will is clearly confined to assets in India, and the “such previous documents” referred to are any previous document which deal specifically with Indian assets. She says that as a matter of construction, if the phrase is construed in context, it does not have the meaning which the Deputy Master attributed to it.
The appellant also argues that the Deputy Master's approach cannot be right because it contravenes the presumption against intestacy (Theobald on Wills (17th ed) (22–057)). She argues – in effect – that, the more complex and difficult the conduct of an intestacy would be, the more strongly the presumption should be applied. In this case an intestacy would be particularly unfortunate because it would raise issues as to what law is applicable to it (since domicile is in dispute) and who is the “widow” and so principal beneficiary. It would also potentially have the effect of conferring benefits on a person – Mandi – who is not identified as a beneficiary in any of Hartar's wills made after 1979. The essence of this argument is that an intestacy would produce consequences so wildly at variance with any outcome actually expressed to be desired by Hartar that the court, in construing the will, should strain against it.
The Deputy Master's Decision
Following a strongly fought contest during the trial, the Deputy Master found against the appellant's contention that the 2016 will was a forgery (at paragraph [191] of his Judgment). He then proceeded to consider the construction of the 2016 will and the question of whether it revoked all previous wills. He found as follows:
a. The applicable law concerning the construction of the 2016 will was the law which the testator intended to be applied, the presumption being that this would be the law of the testator's domicile. Whilst domicile was in issue, no attempt had been made to produce any evidence that Indian rules of construction as they pertain to wills were any different to English rules of construction, and so English law would be applied.
b. Evidence of Hartar's subjective intention would be admissible in construing the Revocation Clause. However, no evidence had been put before the court as to Hartar's subjective intention in relation to the effect of the Revocation Clause.
c. Lamothe v Lamothe [2006] WTLR 1431 was applied as to the burden faced by a person who is seeking to displace the plain meaning of a revocation clause.
d. The “plain meaning of the words of revocation used in the 2016 will could not be clearer. All other wills are cancelled. Accordingly, unless, in construing the will, as a whole and in its context, I conclude that it is unequivocally clear that Hartar did not intend that the words that he used have their literal meaning, I should give effect to that meaning.” (paragraph [203]).
e. At paragraph [205], the Deputy Master held that he was satisfied that “there is nothing in the will, or the material surrounding circumstances, to sufficiently contradict the literal meaning of the words of cancellation used in the will…”
In short, his conclusion was that the ordinary, natural meaning of the words used was that all other wills should be revoked, and that there was no evidence before him that would cause him to interpret the words in any way other than that ordinary natural meaning.
It should be noted that the Deputy Master had heard a very great deal of evidence on this matter. He considered both the possibility of the admission of extrinsic evidence of the testator's intention, pursuant to Lamothe v Lamothe, and the possibility of the admission of evidence under s.21 of the Administration of Justice Act 1982. He concluded that neither issue arose, as there was no such evidence. That is significant for the purposes of this appeal, since it means that the issue before me is simply one of construction.
At various points in the hearing I was invited to interpret the will in the light of speculations as to what the testator might or might not have intended. I do not think that that approach is relevant or – indeed – permissible. In particular, it is not open to me to consider whether or not Hartar would have intended to provide for Jaswinder or not, or what his intentions might have been as regards intestacy. I agree with Mr East that the second ground of the appellants challenge must fail.
However, I was also asked to imply the wishes of the testator by applying the presumption against intestacy. I agree that the presumption against intestacy is a partial route to inferring a testator's intentions, and it is to this that I now turn.
The Presumption Against Intestacy
The...
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