Khatun v Hasan [2025] EWHC 1658 (Ch)

Ms Khatun challenged a will purportedly executed by her late father leaving his entire estate to Mr Hasan, whom she barely knew. The High Court found suspicious circumstances surrounding the will's execution and held the defendants failed to prove its authenticity, pronouncing against it.

Facts

Mr Monir Jaman Shaikh, a Bangladeshi-born solicitor practising in England, died on 7 April 2020 from Covid-19 and multiple organ failure. He left four properties in the United Kingdom. His only child, Ms Khatun, initially applied for Letters of Administration believing he had died intestate. Shortly afterwards, Mr Pathania (a former solicitor and long-time friend of Mr Shaikh) attended Mr Hasan’s home and informed him of a will dated 19 September 2019 (the Disputed Will) naming Mr Hasan as sole beneficiary and Mr Pathania as executor, expressly excluding Ms Khatun. Mr Hasan, who had been living at 47 Cumberland Road with Mr Shaikh under a tenancy agreement, claimed a close quasi-familial relationship with the deceased. Mr Pathania and a Mr Alam claimed to have witnessed the will.

Issues

The central issue was whether the Disputed Will was authentic or a forgery. Subsidiary procedural issues arose concerning: (i) the failure to comply with CPR Rule 57.5 (lodging testamentary documents); (ii) the Defendants’ late application to adduce expert handwriting evidence; (iii) the effect of Payne v Payne [2018] EWCA Civ 985; and (iv) the burden of proof where forgery is alleged.

Arguments

Claimant

Ms Khatun argued it was inherently improbable Mr Shaikh would disinherit his only child in favour of Mr Hasan. She relied on the forensic handwriting report of Dr Ruth Myers, who concluded there was strong evidence that the signature on the Disputed Will was not Mr Shaikh’s but had been authored by someone familiar with it. She highlighted suspicious features including the reference to non-existent properties in Pakistan and the misspelling of her name.

Defendants

Mr Hasan maintained he had a very close relationship with Mr Shaikh, who treated him as a close family member and had planned to transfer the properties to him through a remortgaging scheme. Mr Pathania and Mr Alam gave direct evidence of drafting, witnessing and executing the Will. The Defendants argued a rebuttable presumption of due execution arose which could only be displaced by the strongest evidence.

Judgment

Procedural matters

The Deputy Judge refused the Defendants’ late application to adduce their own expert evidence and to call both experts orally, holding the application was made too close to trial. On the adjournment application made by reference to Payne v Payne, the Judge held that Payne required production of the original will and evidence from attesting witnesses, both of which had been satisfied. Payne did not impose a duty on the court to adjourn to remedy a party’s failure to obtain expert evidence.

Burden of proof

Applying Face v Cunningham [2020] EWHC (Ch) and Sangha v Sangha [2021] EWHC 1599 (Ch), the ultimate burden of proving a will is not a forgery rests on the party propounding it. Where suspicion is aroused, the propounder must affirmatively dispel that suspicion, as discussed in Fuller v Strum [2002] 1 WLR 1097 and Sherrington v Sherrington [2005] EWCA Civ 236.

Suspicion aroused

The Judge found numerous matters arousing suspicion: the complete absence of documentary corroboration (no emails, texts, phone records, computer metadata) of the drafting meetings; the oddity of Mr Shaikh drafting the will himself rather than using J Stifford solicitors (whom he used for all legal work); Mr Pathania’s implausible account of storing the original in a shoebox and being unable to locate it; inconsistencies in the chronology of how Mr Hasan was notified; Mr Hasan’s letter of 19 May 2020 referring to "the respective Solicitors" when Mr Pathania was not a practising solicitor; and crucially the reference in the Will to properties in Pakistan, where Mr Shaikh owned none.

Failure to discharge burden

The Defendants failed to discharge the burden of proof. There was no corroborative documentary evidence; the evidence did not establish the close quasi-familial relationship alleged; the alleged refinancing scheme was scantly evidenced and appeared commercial rather than familial (indeed involving an apparently sham tenancy intended to mislead a mortgagee); and the uncorroborated oral testimony of Mr Pathania, Mr Hasan and Mr Alam was insufficient.

Expert evidence

Applying TUI UK Ltd v Griffiths [2023] UKSC 48, the Judge held the Defendants were precluded from attacking Dr Myers’ report in submissions having failed to cross-examine her. The report was not ipse dixit and the outdated declaration did not bring it within the exceptions. Dr Myers’ conclusion was consistent with the Judge’s finding.

Implications

The decision reaffirms that where forgery is alleged and the court’s suspicion is aroused by the surrounding circumstances, the legal burden remains on the propounder to prove the will’s authenticity on the balance of probabilities, and that uncorroborated oral testimony from interested witnesses may be insufficient where contemporaneous documentary evidence one would expect to exist is unexplained absent. The judgment underscores the importance of compliance with CPR Rule 57.5 requiring lodging of original testamentary documents, and clarifies that Payne v Payne does not oblige a court to grant adjournments to cure a party’s own failures to obtain expert evidence. It also applies TUI v Griffiths in the probate context, demonstrating that parties cannot undermine unchallenged expert evidence in closing submissions save in exceptional circumstances. Practitioners are reminded of the weight attached to PD 57AC certification of witness statements and the evidential consequences of unexplained absence of documentary corroboration in disputed probate claims.

Verdict: The court pronounced against the Disputed Will dated 19 September 2019, finding that the Defendants had failed to discharge the burden of proving on the balance of probabilities that the will was genuine. The claim succeeded.

Source: Khatun v Hasan [2025] EWHC 1658 (Ch)