The defendants had fabricated the existence of a codicil which allegedly modified a deceased testator’s will in order to substantiate a claim to a large part of the testator’s estate.
The claimant executor of a will (B) claimed probate of the will of the deceased testator and the defendants (H) claimed probate of an alleged codicil to the will. The testator had a made a will which named B as the main beneficiary. It was not favourable to H. In 1990, following his brother’s death, the testator flew to Israel for the funeral. H alleged that whilst there the testator had instructed a lawyer (G) to execute a codicil amending the will in favour of H and naming the second defendant as an executor. In 1995, the testator instructed his solicitor to draft a new will, although this was not executed. In March 2000 the testator died. His safe contained a will but no codicil. H maintained that in April 2000, the existence of the codicil was disclosed to them for the first time by G. In October 2000, H notified B about the codicil. Subsequently, the testator’s solicitor contacted G to ascertain the circumstances in which the codicil had been prepared and executed. G indicated that the second and third defendants had been present during its execution. Although he agreed to sign an affidavit in support, he subsequently refused to do so after H objected. H alleged that B had fraudulently removed the codicil from the testator’s safe and destroyed it.
HELD: There was no evidence to show that B had removed and destroyed the codicil. Although it was theoretically possible that the testator had destroyed the codicil with the intention of revoking it, it was more likely that it never existed. The existence of the codicil had been fabricated by H in order to substantiate a claim to a large part of the testator’s estate. A number of facts pointed to that conclusion. G’s explanation to the testator’s lawyer contradicted his oral evidence in court. Under G’s first version of events, both the second and third defendants were present when the codicil was made and so knew of its existence. In his evidence to the court, G stated that he had contacted H for the first time in April 2000. That variation was probably made to bolster H’s case. The testator had never disclosed the existence of the codicil even in 1995 when he considered making a new will. The fact that the codicil was no found amongst the testator’s papers also indicated that it had never existed. H’s failure to disclose the existence of the codicil between April and October 2000 was inexplicable when common sense dictated that they would have done so as soon as they knew of its existence.
Iftikhar Hussain Bokhari v (1) Nelly Harb (2) Khalil Harb (3) Samir Khalil Harb (2005)
“Lawtel”: 2.2.05
