Civil Fraud Quarterly Round-Up: Q1 2021
On 13 June the High Court handed down judgment in the case of Gupta v Aggrawala, a claim brought by Rakesh Gupta who alleged that his late mother’s will (which favoured Rakesh’s younger brother, Naresh) was invalid due to lack of knowledge and approval. Kingsley Napley acted for Naresh in successfully defending the claim, with the Judge concluding that Rakesh had not shown any suspicious circumstances at all in relation to the testatrix’s knowledge and approval of the will. The courts have seen an explosion in these types of claims in recent years. Whilst this case had particularly unique features, this latest judgment reinforces the view that the courts will scrutinise the alleged ‘suspicious factors’ in the context of the particular facts of a case.
The testatrix, Urmila Gupta, moved to England from India in the 1950s with her husband Laxmi. After a few years the couple decided to stay and raise their family in England permanently. They had three children and started a successful wig-making business, which they passed over to their eldest son, Rakesh, in the 1990s. Urmila and Laxmi, together with their youngest son Naresh and his wife, purchased a property in Wembley in 1984, which they lived in together as a family (together with Naresh’s two children after they were born) for the rest of their lives.
Urmila and Laxmi instructed a local solicitor to make mirror wills for them in 1998. Naresh and Rakesh were named as executors and the terms of the wills effectively favoured Naresh; the family home was left to him, together with a cash sum equivalent to the nil rate band. There were small pecuniary legacies to the couple’s six grandchildren, their daughter and a charity of the executors’ choosing, with the remainder of the estate being split equally between Naresh and Rakesh. The couple also made wills in India dealing with their Indian estates in 2004 and in early 2006, through the same local solicitor they had used in 1998, Urmila and Laxmi also made mirror codicils, appointing their daughter as an additional executor of their estates.
Laxmi died in 2009, with his estate passing to Urmila, who then died in early 2014 having suffered dementia for several years before her death. Rakesh bought a claim challenging his mother’s will in early 2017 on the grounds that she could not have known and approved of the contents of the will she executed in 1998. Rakesh alleged that Urmila could not read English and could speak only a handful of words in English, her native language being Hindi. Therefore she would not have been able to read or understand the English will, even if it had been read over to her in English or even in Hindi.
There were many unusual features in this case. The solicitor who prepared the will and codicil had been struck off in 2009 and the will file was not available. Many of the potentially relevant factual witnesses from the 1990s, such as Urmila’s GP and bank manager had either died or could not be found. The second attesting witness to the 1998 will could not remember Urmila, as was the case for a solicitor who prepared an English power of attorney for her in 2002. The court heard vastly differing accounts from family members as to their memories and experiences of Urmila’s ability to speak and understand English and saw video footage of her participating in family events in the 1980s and 90s.
It was agreed that Laxmi dealt with almost all of the couple’s correspondence (for example with banks and accountants) but Rakesh alleged that this “dominance” of Urmila by Laxmi was one of several features which ought to excite the suspicion of the court, saying it was more likely that the 1998 wills were drafted on the basis of instructions from Laxmi, with little or no involvement from Urmila. The judge considered this, together with other alleged suspicious features, which included Urmila’s limited understanding and inability to comprehend written/ spoken English, her physical and mental health conditions, and the absence of a “good reason” why Urmila would have wanted to benefit her three children differently under the 1998 will.
The judge concluded that Rakesh had not established any suspicious circumstances. He accepted that Laxmi and Urmila had a close and loving relationship and that it would “astonishing” if they had not discussed the contents of their mirror wills before execution, even if Laxmi had been the “driving force”. He accepted that Urmila would have conversed in Hindi when she was with people who also spoke Hindi, as it was “obviously much better than her English”, but that she would be willing to express herself in English when “she did not have much choice”, such as to her English speaking grandchildren. The judge found said that although Urmila suffered from a variety of health conditions later in life, he did not accept that by 1998 those would have impaired her ability to have knowledge and approval of her will. Her frailties had to be viewed “in perspective”. Finally, the judge concluded that it was apparent that Urmila did not treat her children equally, for example in respect of her Indian will (which was not challenged by Rakesh), such that the disparity in benefits between the couple’s three children could not be seen as suspicious.
Want of knowledge and approval claims can sometimes be seen by claimants as an ‘easier’ route to challenging a will than on other grounds, such as testamentary capacity or undue influence, but in this case the claimant was unable to demonstrate that the circumstances surrounding Urmila’s will were sufficient to arouse the court’s suspicions. The courts will look at all of the evidence objectively and consider whether it is‘inherently probable’ that a will reflects the deceased’s testamentary intentions, which can be difficult for claimants when the starting point is that the will was validly executed by a person with capacity and free from undue influence.
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