Sangha -v- Sangha III: The Revocation of the Total Revocation

In the world of contentious probate this case really is the gift that keeps on giving having spawned two separate blogs last year and now a third.

By way of reminder, previously on Sangha -v- Sangha : the claimant was the purported second wife of the deceased although the validity of that second marriage (because the Deceased was still married to his first wife at the time) has it appears yet to be determined.  The five defendants consisted of the estate of his first wife, his three children (by the two “wives”) and finally his sister to whom at one stage the deceased was particularly close, then estranged and then possibly reconciled.

The original decision the subject of the appeal was dated the 21 September 2021, following a nine-day hearing.

The deceased, who was described by the judge as a “prolific writer of wills” left behind four:

1. A 1979 will splitting his property between his first wife and his two children by that marriage.
2. A 2003 will covering only his properties in India with those going to his second “wife” and their son.
3. A 2007 will covering all of his property in the UK and India leaving everything to his second “wife” or if she predeceased him their son.
4. A 2016 Will only covering land and assets in India which provided that they should be split equally between his first wife, one of her children, his son by his second wife and his sister.

The 2016 Will contained what is known as a revocation clause:

“this is my last and final WILL and all such previous documents stand cancelled”.

The main point on the appeal was whether the revocation clause in the 2016 Will revoked the 2007 will in its entirety or only to the extent that it applied to his land and assets in India.

The first judge decided that the ordinary, natural meaning of the words used meant that all previous wills should be revoked such that the 2016 will was the only one left standing.  Since however it dealt exclusively with his property in India and therefore could not be admitted to probate in the UK it left his estate in England as if he had died without a will at all.

That was despite the fact that there is supposedly a presumption against intestacy.

“There is one rule of construction which, to my mind, is a golden rule that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce”.  “You ought, if possible, to read the will so as to lead to a testacy not an intestacy”.

Some doubt was cast by the appeal judge on the presumption again intestacy because he said some people deliberately die intestate and others deliberately die intestate save as to certain items.  One of the reasons why the deceased in this case might have positively intended to leave the position as to his English estate unresolved was to avoid him having to engage with the difficult issues caused by his complex marital situation.

The appeal judge decided that if the deceased had intended to revoke the earlier will dealing with his English property, he could easily have specifically mentioned that in the 2016 Indian will.  That was an entirely Indian document in that it was drafted in India, with the assistance of an Indian lawyer and related exclusively to his property in India.  It did not say that it was intended to have any application at all outside the specific estate in India with which it dealt.  Since however the 2003 will also related exclusively to his Indian property it was that will which the testator intended to revoke.

The judge decided that two documents, the 2016 Will and 2007 Will insofar as it had not been revoked needed to be taken together to constitute the will of the deceased.

There was a separate cross appeal to the effect that the 2007 Will which was signed in India but purported to dispose of property in the UK was not properly executed in line with Section 9 of the Wills Act 1837. In relation to that point the appeal judge decided that as a result of amendments made to Section 9 by the Administration of Justice Act 1982 the Will had in fact been properly executed.  If the case had been decided prior to that the decision would have gone the other way!

There are still probably several contentious issues yet to be resolved in this case so watch this space for Sangha -v- Sangha IV The Return of the Cross Border Will Dispute.

Read the first Sangha -v- Sangha blog here: Real News About Fake Wills!

Read the second Sangha -v- Sangha blog here: The Law of Unintended Consequences.

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