Neutral Citation Number: [2012] EWCA Civ 1635
Case No: A3/2011/3157
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE 
CHANCERY DIVISION (PROBATE)
MR MARK CAWSON QC sitting as a Deputy High Court Judge 
HC10C01936
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/12/2012
Before :

LORD JUSTICE MUMMERY
and
MR JUSTICE MORGAN

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Between :

	JARNAIL SINGH & ORS	Appellants	
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	BALVINDER AHLUWALIA	Respondent	

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MR GEOFFREY GOLDKORN Solicitor Advocate of Goldkorn Mathias Gentle Page LLP  for the Appellant
MR TIMOTHY EVANS (instructed by Thomas Cooper) for the Respondent 

Hearing  date : 12th  July 2012
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Judgment

Lord Justice Mummery : 
1.	At the end of the hearing of a renewed application for permission to appeal I stated that it would be dismissed for reasons to be put into writing.
2.	On 10 August 2012 I prepared a draft judgment for consideration by Morgan J. On 29 August 2012 the Clerk to Morgan J sent an email to my clerk in which Morgan J agreed with the draft and suggested that it could be given as a judgment of the court. Unfortunately, I overlooked that response on my return to the Royal Courts of Justice at the beginning of term in October 2012.  I only became aware of my oversight, for which I make apology, when I received a copy of a letter emailed by the solicitor for the applicants to the Clerk to Morgan J pointing out that no order had been made and no judgment or reasons had been handed down.
3.	The email enclosed some very short Further Submissions, which we have considered. The thrust of the Further Submissions is that the grounds of appeal are not fanciful, that the threshold for granting permission has been surmounted and that, if permission is not granted, the respondents should only be awarded their costs of the day. 
4.	What follows is the judgment of the court.    
The issue
5.	At the trial of this probate action before Mr Mark Cawson QC, sitting as a deputy judge of the High Court, the issue was whether the will of the deceased, Mr Ranjit Singh, dated 3 May 1999 had been duly attested by two witnesses, Mr Maurice Grantham and Mr Gurdial Ahluwalia, in the presence of the deceased and present at the same time in accordance with s. 9 of the Wills Act 1837. The deceased died on 23 March 2009.
6.	The deputy judge held that the deceased’s alleged will was not properly attested, despite the authentic signatures of two witnesses and the presence on the document of a common form attestation clause. The deputy judge found that the two witnesses had signed the document on two separate and distinct occasions at different places. The main ground of appeal is that the judge did not properly appreciate the evidence given at the trial about the circumstances of the execution and attestation of the alleged will.
7.	After a four day trial the judge handed down a very detailed judgment in which he found as a fact that the two witnesses were not present in the same place at the same time when they signed. He revoked the grant of probate on 12 March 2010 to the applicant, Mr Jarnail Singh, who was the oldest son of the deceased and was named as executor and beneficiary, declared that the deceased died intestate and refused permission to appeal. On 7 February 2012 Lord Justice Lewison refused permission on the paper application to this court.  
8.	The principal submission of Mr Geoffrey Goldkorn, who appears for the applicant, is that this court should overturn the judge’s finding of primary fact and substitute a finding, in accordance with the strong presumption of due execution, that the two witnesses were present at the same time when they signed. In his original 32 page skeleton argument Mr Goldkorn described the judge’s finding that the presumption had been rebutted as “extraordinary.” It meant that the deceased had completely ignored the clear instructions he was given no more than 2 days previously about how to execute the will.  He said that the judge had made a fundamental error.  If that primary submission were rejected, he would seek a re-trial of the action on similar grounds. 
The adjournment  
9.	It is not necessary to explain the circumstances leading to the adjourned inter partes oral hearing on 12 July 2012, as they have already been described in a judgment delivered at the original hearing of the renewed application on 19 April 2012.
10.	The purpose of the adjournment was to enable the applicant to obtain the original will.  Mr Goldkorn informed the court that he was under the impression that this court had the original document, which he needed in order to demonstrate how the two pages of the original had been fastened together. The demonstration, which had been carried out in the court below and could not be repeated in this court without the original document itself, would, he said, support his submission that the judge had wrongly accepted the evidence of Mr Maurice Grantham.
11.	Mr Goldkorn submitted a revised skeleton dated 5 July 2012 in compliance with paragraph 4.14A CPR Part 52. In that document Mr Goldkorn emphasised that his challenge was to the findings of the deputy judge which are not based on the impression that the witnesses made in the witness box: the challenge was to a finding that was demonstrably wrong, to his reasoning based on his findings and to what should have been his evaluation of the evidence, had he reached the right conclusion on the point on which he was palpably wrong. Mr  Goldkorn  emphasised that the applicant was not seeking a re-hearing of the case: there was, he said, plainly insufficient evidence to rebut the presumption of due execution and so this court should itself decide to dismiss the action for revocation of the probate. 
Applicant’s submissions   
12.	According to Mr Grantham’s evidence his signature on the document was made at 122 North Road, Three Bridges, Crawley when he was the only witness present. He did not read the document or know that he was witnessing a will.  When shown the will at the trial he said that the document that he had signed was folded by the deceased in such a fashion as to hide the fact that it was a will. He had not seen the attestation clause on the second page of the document before signing it, as the deceased had folded over the document just enough for him to sign it, but without revealing the attestation clause. The judge found that the other signature (that of Mr Ahluwalia) was obtained by the deceased on a later occasion and somewhere else.
13.	Mr Goldkorn submitted that it was impossible to fold the original document in such a way as to obscure the words “Signature of the testator” or so as to hide the entire attestation clause. It was impossible for Mr Grantham to sign the alleged will without seeing the attestation clause. Mr Grantham must therefore have known that he was witnessing a will. The overwhelming probability was that his recollection of signing must have related to witnessing another document on another occasion and that he had forgotten the occasion on which he witnessed the 1999 document signed by the deceased.     
14.	Mr Goldkorn also submitted that the judge erred in relying on the evidence of Mr Ahluwalia, the second witness. Mr Ahluwalia had changed his evidence about how his signature was obtained. The judge ought to have held that Mr Ahluwalia’s evidence related to another will. 
15.	In brief, Mr Goldkorn submitted that there was a real prospect of persuading this court to come to the opposite conclusion to that of the trial judge and to give effect to the strong presumption of due execution without the need for a re-trial of the issue of validity. The document could not have been signed by Mr Grantham without him seeing the attestation clause and the words “Signed by the testator.” Mr Goldkorn made other detailed criticisms of the decision of the deputy judge to accept the essentials of the witness evidence, including that of Mr Grantham, called to challenge the validity of the alleged will.
Conclusion      
16.	In our judgment, Lewison LJ correctly refused to grant permission to appeal.  No point of law is raised by the proposed appeal. The deputy judge correctly directed himself on the presumption of due execution in the absence of the strongest evidence. In evaluating the evidence the deputy judge had had the benefit of seeing the “folding” demonstration. He had considered the layout of the will and he had heard the evidence given by Mr Grantham. His finding was that the deceased had only allowed Mr Grantham to see so much of the document as he needed to see in order to add his signature. The judge’s finding turned in large part on the credibility of Mr Grantham’s evidence that he had not signed the document for the deceased in the presence of any other person, that he had not seen the attestation clause on the document before he signed it and that the deceased had folded over the two page document just enough to sign it and in such a way as to obscure the attestation clause. The deputy judge found that Mr Grantham would have recalled had he been present with Mr Ahluwalia when the deceased signed the document and concluded that the deceased visited Mr Grantham to obtain his signature and subsequently obtained Mr Ahluwalia’s signature. Mr Grantham was the only witness present when the deceased signed the document and did not know that he was witnessing a will.
17.	The proposed appeal is, in our judgment, an over-optimistic attempt to persuade this court, which will not see or hear Mr Grantham give evidence, to re-decide the main factual issue in the trial and to come to a different conclusion contrary to the evidence given to the trial judge by Mr Grantham. In our judgment, there is no real prospect of this court taking that course. The judge, who analysed the evidence in meticulous detail, was entitled to accept the evidence given by Mr Grantham. That acceptance was based in large part on the impression made by him in the witness box. We agree with Mr Timothy Evans for the respondents that there is no basis for an appeal court to interfere with the key findings identified by the deputy judge at paragraph 126 of his judgment. 
18.	The applications for permission and for a stay are therefore refused.
19.	The applicant is ordered to pay the respondent’s costs on this application, such costs to be subject to a detailed assessment on the standard basis, if not agreed.