Holograph will is found invalid during probate battle

The probate for a holograph will has been revoked, following a virtual court hearing at the England and Wales High Court, in which a potential witness revoked their affidavit.

A handwritten will, detailing the last will and testament of Professor Robert Whalley was dated on 3rd May 2018, two months before he passed away. In this will, Whalley left the entirety of his estate – valued at £1.7m – to his fellow alumni professor Kambiz Ebrahimi and his wife.

The court heard that two witnesses attested Whalley’s signature on the will, but the date they signed was on the 4th May 2018 , the day after the will was executed by Whalley. The two witnesses gave evidence that they witnessed the testator’s signature separately on 4th May 2018, at a time when they were not together as witnesses, so under current legislation their attestation was evidently invalid.

Whalley’s will

The plot thickened, when written on the back of Whalley’s will was a second attestation by a second set of witnesses, who swore that they witnessed the testator’s signature on 3rd May 2018. During the hearing, Mr Ebrahmi revealed that it was these two witnesses that his claim to the estate was based on, and this was what he used to begin the probate process. These second two witnesses provided affadavits confirming that they had indeed attested the signatures on 3rd May, the day prior to the other witnesses.

Ebrahimi obtained a grant of probate for this will in February 2019. It was, however, challenged by the British University in Dubai, which Whalley had named as his main beneficiary in a 2012 will. The University alleged the 2018 will was invalid because the signatures on the reverse of the will had been added later to represent that those witnesses had witnessed the will validly on 3rd May 2018.

The case was heard by the England and Wales High Court (EWHC) via teleconference earlier in March, with Ebrahimi as defendant. It was up to him to prove that the will was valid. He called the two witnesses that had signed the back of the will to vouch for it by confirming the affidavits of due execution they had made, which stated that they were present at a meeting at Professor Whalley’s home on the evening of 3rd May 2018 and that they had each witnessed the 2018 will in the proper manner.

Witness changes his evidence

However, when the second witness gave his evidence in chief, the EWHC was taken by surprise. He was asked if the contents of his affidavit were true, and replied ‘No’. When asked how he would like to correct his affidavit he replied: ‘There was no meeting on 3 May 2018’.

At that point, the defendant’s counsel asked for time to take instructions. When proceedings resumed, he confirmed that Ebrahimi was abandoning his defence and withdrawing his request for a pronouncement in favour of the 2018 will. The defendant also did not resist an order for indemnity costs against him in his personal capacity, together with an adjournment of the issue of a payment on account of such costs, and an order for payment out of sums paid into court by the claimant by way of security for costs. The judge duly made those orders (British University in Dubai v Ebrahimi, 2021 EWHC 757 Ch).

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