Witness revoked affidavit in England and Wales court during probate battle

The will of Professor Robert Whalley was handwritten on one sheet of paper. It is dated 3 May 2018, two months before Whalley died, and gave his entire GBP1.7 million estate to an old friend, Kambiz Ebrahimi, and to Ebrahimi's wife. Ebrahimi is a professor at Loughborough University, as was Whalley.

Two witnesses attested Whalley's signature on the will, but gave the date of attestation as 4 May 2018, the day after it was purportedly executed by the testator. They gave evidence that they witnessed the testator's signature separately on 4 May 2018, at a time when they were not together as witnesses, so that their attestation was evidently invalid.

However, written on the back of the same sheet there was a second attestation by two different witnesses, giving the date of attestation as 3 May, the same as that of the testator's signature. It was this attestation that Ebrahimi relied on when submitting the will to probate, although these two alternative witnesses also had to provide affidavits to the effect that the will had been properly executed and witnessed.

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 3 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 3 May 2018 and that they had each witnessed the 2018 will in the proper manner.

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).

Sources

• BAILII