Court of Appeal hands down decision in Sangha v Sangha

The Court of Appeal has today handed down its judgment in the case of Sangha v The Estate of Diljit Kaur Sangha & Others, in which three members of chambers appeared (Penelope Reed KC, Mark Blackett-Ord and William East).

The appeal related to the estate of Hartar Sangha (‘Hartar’), an Anglo-Indian businessman, who died in 2016.

In 2020, a trial was held of a probate claim which was brought by Jaswinder Sangha (‘Jaswinder’), who underwent a marriage ceremony with Hartar in India in 1992. Mark Blackett-Ord and William East appeared in that trial, and you can find our news article on it here. Jaswinder contended that a Will made by Hartar in 2007 (‘the 2007 Will’), which gave his substantial English and Indian estates to her absolutely, was his last valid Will. This probate claim was defended by Hartar’s children Sundeep Sangha (‘Sundeep’) and Mandi Vanderpuye (‘Mandi’), and the estate of their mother Diljit Sangha (‘Diljit’) (Diljit died after Hartar during the course of the proceedings). There is a dispute between the parties as to whether Hartar was validly married to Jaswinder, given that it is alleged by Sundeep and Mandi that he married Diljit in 1962 and did not subsequently divorce her.

Midway through the proceedings, Hartar’s sister Jagpal Sangha was joined as a further defendant as she had produced a Will made by Hartar in 2016, which divided his Indian estate between Sundeep, Diljit, Harbiksun Sangha (his son with Jaswinder) and Jagpal in equal shares. It also contained a revocation clause as follows: “this is my last and final WILL and all such previous documents stand cancelled”. Jaswinder alleged that this Will was a forgery or alternatively that the revocation clause did not revoke the 2007 Will as regards the English estate. Sundeep and Mandi were neutral as to whether the 2016 Will was valid, but, if it was, they contended that it revoked all previous Wills, including the 2007 Will if valid, such that there was an intestacy of the English estate under which they would benefit.

Following a trial over 10 days, Deputy Master Bowles held:

• That the 2016 Will was valid and was not a forgery;
• That the 2016 Will revoked all previous Wills, including the 2007 Will, which was a valid Will;
• As a result, there was an intestacy of the English estate from which Sundeep, Mandi and Harbiksun would benefit. Further directions were given in order for the court to determine at a second trial whether the surviving spouse for the purposes of the intestacy rules was Diljit or Jaswinder.

Jaswinder appealed the Deputy Master’s decision on the revocation clause in the 2016 Will, arguing that Hartar could not have intended to revoke the part of the 2007 Will which dealt with his English estate by including the revocation clause in the 2016 Will.

Sundeep and Mandi resisted that appeal, and filed a Respondent’s Notice contending that the 2007 Will was not duly executed in any event, on the grounds that when Hartar signed it, the two witnesses were not present with him, with only one witness (‘Witness 1’) being present who signed the will after Hartar executed it. Although they accepted that Hartar subsequently acknowledged his signature to both witnesses present at the same time when he called the second witness in to sign the will, they contended that in those circumstances it was necessary for Witness 1 to then acknowledge his signature in the presence of Hartar for section 9 (d) of the Wills Act 1837 to be satisfied. They contended that until Hartar had acknowledged his signature in the presence of both witnesses, Witness 1 had nothing to witness, and it was not enough for Witness 1 to have signed the 2007 Will prior to Hartar doing this. They further contended that there was no evidence at all of any such acknowledgement. Jaswinder resisted these arguments, contending that there was no such requirement under section 9 (d) of the Wills Act 1837, and in any event the Deputy Master had sufficient basis for inferring that Witness 1 would have acknowledged his signature after Hartar had acknowledged his.

On appeal, Simon Gleeson (sitting as a Deputy Judge of the High Court) allowed the appeal and dismissed the Respondent’s Notice, holding that:

• the revocation clause in the 2016 Will was not intended to revoke the part of the 2007 Will which dealt with Hartar’s English estate. The Deputy Judge held that ‘where a will is expressed to apply to specific, identified property in a particular jurisdiction, is made in that jurisdiction with the assistance of lawyers established and qualified in that jurisdiction, and has no other connecting factor with any other jurisdiction, the starting point should be an assumption that the will as a whole is only intended to apply to that property in that jurisdiction unless there is some good reason to believe otherwise.’
• There was no requirement under section 9 (d) for Witness 1 to have acknowledged his signature in the presence of Hartar after Hartar acknowledged his signature to both witnesses, and in any event Deputy Master Bowles had sufficient basis for inferring that such an acknowledgement would have occurred.

Sundeep, Mandi and Diljit’s estate appealed to the Court of Appeal (Arnold, Nugee and Carr LJJ), who have now allowed their appeal, holding:

• The revocation clause did revoke the 2007 Will in its entirety.
• (Obiter) that section 9 (d) of the Wills Act 1837 did require Witness 1 to acknowledge his signature in the presence of Hartar after Hartar acknowledged his signature to both witnesses. The court did not resolve the question of whether Jaswinder had proved that such acknowledgement occurred, in light of its decision on the revocation clause.

As well as clarifying how section 9 of the Wills Act 1837 applies in this scenario, the judgment also clarifies the law in relation to revocation clauses of the type at issue in the decision. It expressly approves (for the first time at Court of Appeal level) the discussion of the law in Lamothe v Lamothe [2006] WTLR 1431, where Roger Wyand QC (sitting as a Deputy Judge) held (inter alia) that where a later will such as the 2016 Will contains a general revocation clause, a clear and unequivocal intention on the part of the testator not to revoke earlier wills dealing with property in another jurisdiction is required in order for the court not to apply the general revocation clause in accordance with its plain meaning. The Court of Appeal rejected the Deputy Judge’s proposed ‘starting point’ in such cases as set out above, on the basis that this was not in accordance with the authorities.

William East appeared for the Appellants (with Alexander Learmonth KC). Penelope Reed KC and Mark Blackett-Ord appeared for Jaswinder.

You can read the judgment please, click here.