19 April 2011 – High Court allows appeal in Wahab v Khan

Mr Justice Briggs has allowed an appeal against the striking out of a claim for revocation of a grant of probate.

The appellant brought his claim in relation to the will of his deceased's brother. Probate of the will had been obtained by the first respondent, who was the principal beneficiary. In 2007, a claim had been brought for revocation of the grant of probate by the appellant's half-brother on the grounds of alleged forgery and lack of due execution. The appellant's half-brother obtained an interim order restraining the respondent and another personal representative from distributing the estate. The appellant was subsequently substituted for his half-brother as the claimant, but no steps were taken to pursue the proceedings, which were struck out.

The appellant then commenced a new claim in 2009 on the same ground. The claim was struck out as an abuse of process on the basis that the appellant had obtained significant interim relief in the earlier proceedings and had failed to pursue the claim. The appellant appealed against the strike out.

Mr Justice Briggs allowed the appeal, holding that although the costs of the first proceedings would have to be paid before the appellant could proceed, the claim was not an abuse of process. The Judge held that the allegation of forgery disclosed a real case to answer, the previous proceedings had not finally been determined and so there was no res judicata point to be taken, and the previous proceedings had been struck out following a relatively technical breach of the rules and a delay of only seven months.

Barbara Rich successfully acted for the appellant.

A copy of the judgment can be found by clicking on the link below.

Judgment >>