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Kingsley Napley wins in want of knowledge will case

14/06/2018 News Team

London-based law firm Kingsley Napley has successfully acted for defendant Naresh Gupta as a judge concluded at the High Court in London that his older brother and claimant Rakesh Gupta who had alleged that his late mother’s will (which favoured his younger brother) was invalid due to want of knowledge and approval had not shown any suspicious circumstances in relation to the testatrix’s knowledge and approval of the will. 

The testatrix, Urmila Gupta, moved to England from India in the 1950s with her husband Laxmi. They had three children and ran a successful wig-making business, which they passed over to their eldest son (Rakesh), in the 1990s. 

Mr and Mrs Gupta instructed a local solicitor to make mirror wills for them in 1998 where both sons (Naresh and Rakesh) were named as executors. The terms of the wills effectively favoured the youngest son (Naresh) with the family home left to him, together with a cash sum equivalent to the nil rate band.   

After Mr Gupta’s death in 2009, with his estate passing to his wife, who then died in early 2014, Mr Gupta (Rakesh) bought a claim challenging his mother’s will in early 2017 on the grounds that she could not have known and approved of the contents of the will she executed in 1998 as she could not read English and could speak only a handful of words in English, as her native language was Hindi. Therefore she would not have been able to read or understand the English will, even if it had been read over to her in English or even in Hindi. 

The solicitor who prepared the will and codicil had been struck off in 2009 and the will file was therefore not available. Many of the potentially relevant factual witnesses from the 1990s, such as Mrs Gupta’s doctor and bank manager had either died or could not be found. The second attesting witness to the 1998 will could not remember Mrs Gupta, as was the case for a solicitor who prepared an English power of attorney for her in 2002. The court heard vastly differing accounts from family members as to their memories and experiences of her ability to speak and understand English. 

Mr Gupta (Rakesh) alleged that there was “dominance” of his mother by her husband which ought to excite the suspicion of the court, saying it was more likely that the 1998 wills were drafted on the basis of instructions from Mr Gupta (Laxmi), with little or no involvement from Mrs Gupta. 

The judge considered this, together with other alleged suspicious features, which included Mrs Gupta’s limited understanding and inability to comprehend written/ spoken English, her physical and mental health conditions, and the absence of a good reason why she would have wanted to benefit her three children differently under the 1998 will.

The judge concluded that Mr Gupta (Rakesh) had not established any suspicious circumstances. He accepted that his parents had a close and loving relationship and that it would be “astonishing” if they had not discussed the contents of their mirror wills before execution, even if Mr Gupta (Laxmi) had been the “driving force”. 

He also accepted that his mother would have conversed in Hindi when she was with people who also spoke Hindi, but that she would be willing to express herself in English when “she did not have much choice”, such as to her English speaking grandchildren. 

The judge found said that although Mrs Gupta suffered from a variety of health conditions later in life, Mr Gupta (Rakesh) did not accept that by 1998 those would have compromised her ability to have knowledge and approval of her will. 

Finally, the judge concluded that it was apparent that Mrs Gupta did not treat her children equally, for example in respect of her Indian will (which was not challenged by the eldest son), such that the disparity in benefits between the couple’s three children could not be seen as suspicious.

Ryan Mowat, head of contentious trusts & probate at Kingsley Napley LLP, who was the lead partner on the case said: “This case was unusual because it was alleged that that Mrs Gupta did not understand the contents of a will because she could not speak or understand English.

"My client rejected that allegation and anyway the judge accepted our position that it was probable that his loving parents had discussed their mirror wills together. It highlights that claimants should only challenge the validity of a will when they have good evidence that it does not reflect the will maker’s testamentary intentions.”

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