Claim No: CFI 059/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai

IN THE COURT OF FIRST INSTANCE

BEFORE H.E. JUSTICE ROBERT FRENCH

BETWEEN

NITIN KEDARNATH GUPTA

Claimant

and

ROHIT KEDARNATH GUPTA

Defendant

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JUDGMENT OF H.E. JUSTICE ROBERT FRENCH

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UPON the Claimant's Part 7 Claim Form dated 27 August 2024 (as amended on 30 August 2024) seeking the revocation of the grant of probate (No. PRB-023-2021), an order confirming the invalidity of the 2021 DIFC Will, and an order setting aside certain lifetime transfers of the estate of the Deceased which were enacted against the will of the Deceased prior to his demise (the “Claim”)

AND UPON the Defendant's Application No. CFI-059-2024/3 for an order for security for costs dated 23 May 2025 (the “Application for Security for Costs”)

AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at the in-person trial held before H.E. Justice Robert French from 5 to 16 February 2026 (the “Trial”)

AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at the hearing held before H.E. Justice Robert French on 1 May 2026, at which the parties made their closing submissions (the “Hearing”)

IT IS HEREBY ORDERED THAT:

1. The Claim and the Application for Security for Costs are dismissed.

2. The Claimant shall pay the Defendant's costs of the Claim to be assessed by the Registrar if not agreed.

3. There is no order as to the costs of the Defendant's Application for Security for Costs.

Issued By:
Hayley Norton
Assistant Registrar
Date of Issue: 19 August 2026
At: 9am

SCHEDULE OF REASONS

Introduction

1. This claim concerns the validity of a will dated February 2021 (the “Disputed Will” or the “2021 DIFC Will”), probate for which was granted on 29 March 2022. The testator who died on 9 December 2021 was Kedarnath Gupta (the “Testator”) who was survived by his wife, Asha Gupta (“Asha”), and two sons, Nitin Gupta, who is the Claimant, and Rohit Gupta who is the Defendant. The Disputed Will left the entire estate of the Testator to his wife Asha provided that, in the event that she should predecease him, the estate would go to Rohit Gupta. In the event, Asha is the sole beneficiary under the Disputed Will. The Claimant, the Defendant and Asha all gave evidence in these proceedings.

2. The validity of the Disputed Will is challenged on the following bases as appears from the Amended Particulars of Claim dated 25 June 2025:

3. The Claimant seeks the following relief:

An order for costs and expenses is also sought.

General Factual Background

4. The uncontroversial factual background of these proceedings emerges from the pleadings, the witness statements and documentary evidence.

5. Kedarnath Gupta, the Testator, was born on 8 September 1949. His wife, Asha, was born on 8 October 1952. In 1968 the Testator established a business known as KG International FZCO, which became a successful worldwide distributor of ball bearings. The company headquarters were located in the Jebel Ali Free Zone in the UAE. It continues to operate from there today.

6. On 8 December 1970, the Testator and Asha were married. The Defendant, their eldest son Rohit, was born on 15 November 1971. The Claimant, Nitin, was born on 15 November 1973.

7. In 1988 the family moved to Dubai. The two boys attended the Indian High School in the UAE and later the University of Nebraska in the United States.

8. After he graduated in 1994, the Claimant worked for about 18 months for the KG Group handling warehouse operations. Both brothers were married in 1995. The Defendant married Nidhi Gupta on 3 March 1995. The Claimant married Gauri Gupta on 22 June 1995. Gauri and Nidhi were witnesses in these proceedings, as were their son and daughter, Kunal and Pooja. The Defendant and his wife had two children, Karan and Ashna. Karan was a witness in the proceedings.

9. In September 1996 the Testator underwent an operation in London to replace his mitral heart valve.

10. In or about 2000, the Claimant and Gauri moved to Mumbai, India to pursue his own business opportunities.

11. The Claimant established in Mumbai what he called a ‘celebrity’ gym in 2002 under the name SYKZ. The Testator was supportive of his endeavours and purchased gym premises in the name of the Claimant to help with the setting up of the business.

12. In 2004, the Testator appointed the Defendant as Chief Executive Officer of KG International and turned his attention to real estate investments in India, particularly in Gurgaon, Haryana.

13. In December 2006, Asha signed a Power of Attorney in favour of the Defendant in relation to the sale of any of her property in the UAE.¹

14. In 2010, the Testator executed a Power of Attorney in Mumbai granting the Claimant authority to deal with his Indian assets. The following year the Claimant established KG Functional Beverages Private Limited in India. In 2012, the Testator introduced Amit Talwar to the Claimant to help the Claimant establish a kiosk for his energy drink business. Amit Talwar was a witness in these proceedings.

15. On 6 January 2011, the Testator signed a Power of Attorney in favour of the Claimant to deal with his properties in India.²

16. On 16 May 2013, the Testator executed a Will covering his worldwide estate. It appointed Asha, as sole executrix with the Defendant and the Claimant as substitute executors followed by the Defendant's son, Karan, and the Claimant's son, Kunal. Under the Will the Testator left his shares and stock to Asha with a substitute gift to the Defendant or his wife Nidhi or their children. He left assets anywhere except India to the Defendant with a substitute gift to Nidhi or their children. He left his assets in India to the Claimant with a substitute gift to the Claimant's wife Gauri or their children.

17. In 2014, the Testator purchased a property in Goa, India from Amit Talwar. In 2015, the Defendant purchased shares in KG International and was assisted in funding the purchase by the Testator.

18. On 22 June 2016, the Testator made a DIFC Will covering his property in the Emirate of Dubai only. Under that Will he appointed Asha as sole executrix with the Defendant and the Claimant as substitute successive executors. The whole estate was to go to Asha if she survived him by 30 days. There were to be substitute gifts of 50%, one to the Defendant with a substitute gift to his wife, Nidhi and subsequent gifts to their children Karan and Ashna. There was a substitute gift of the other 50% to the Claimant with successive substitute gifts to his wife Gauri and their children, Kunal and Pooja.³

19. The Testator travelled to Delhi in June 2017, met with the Claimant while there and signed a general Power of Attorney granting him power to deal with his Indian assets. In 2017, the Testator also made the Claimant the sole signatory of his Indian ICICI bank account and nominee of his Indian HDFC bank account.

20. In June 2017 the Testator travelled to Miami to meet with his brother Pawan and Kunal Gupta, the son of the Claimant and Gauri Gupta. Pawan was a witness in these proceedings. It was his unchallenged evidence that during that visit in June 2017, the Testator told him that “he intended to divide his assets evenly between both of his sons”.⁴ In the event, he had a minor stroke and was hospitalised in Miami.

21. The Testator arranged for the drafting of a DIFC Courts Will in 2017, limited to his Dubai estate. Under the terms of that draft his wife was to be appointed as executrix and trustee, with the Defendant as substitute executor, with the Claimant named as a successive substitute executor. Under that draft all of the Testator's property in the Emirate of Dubai was to pass to Asha and if that became impossible, the Claimant and the Defendant were each to be entitled to receive 50% of the Dubai estate.

22. The Defendant agreed in cross-examination that before the Testator suffered his stroke in September 2017 he wanted to leave his Indian estate to the Claimant.⁵ He agreed with the proposition that the Claimant would eventually get India and he, the Defendant, would eventually get Dubai.⁶

23. There was a WhatsApp exchange between the Testator and the Claimant in June 2017 when the Testator is said to have asked the Claimant if he would like him to ask a contact to invest in the Claimant's health drink business ‘Yoga Pulp’. In the same month, on 23 June 2017, the Testator executed a Power of Attorney in Delhi granting the Claimant authority to deal with his Indian assets.

24. On 17 September 2017 the Testator suffered a major stroke in Dubai. He was admitted to the Saudi German Hospital in Dubai where he remained for six and a half weeks until 2 November 2017. He was initially admitted to the intensive care unit, was intubated by way of a tracheostomy and was reliant on a mechanical ventilator. Medical notes at the time described him as in a state of “acute confusion”, a disturbed conscious level and acute right sided hemiparesis. Dr Deepak Arjundas, a consultant neurologist at Mercury Hospital, Chennai, visited the Testator in hospital in October 2017. Dr Arjundas had been introduced to the Testator through a family friend of the Defendant. He did not ever treat the Testator who was not his patient at any time. He was one of two medical witnesses who gave evidence in these proceedings.

25. In October of that year, the Defendant cancelled the Testator's proposed purchase of an apartment in Lodha World Tower, Mumbai on the basis that the Testator was currently hospitalised and would need more time in hospital and even after that a lot of time for recovery.

26. At about that time the Defendant put in train processes for taking control of all the Testator's accounts. He asked Asma Noor, the Testator's Personal Assistant, whether the process of including the signatures of Asha Gupta, the Claimant and the Defendant on all accounts had been started. The Defendant said that would include Indian accounts. He said he would manage the arrangements with HDFC.

27. On 2 November 2017, the Testator was discharged from the Saudi German Hospital in Dubai and taken to the Defendant's home.

28. In December 2017, the Testator's Personal Assistant sent an email to a Mr Arum Metha. Mr Metha was asked to prepare a power of attorney for the handling of all of the Testator's property, banking and all other matters in India. The power of attorney would be conferred upon Asha Gupta and the Defendant. On the same day, a general power of attorney was emailed to Asma Noor.

29. On 17 or 19 December 2017, the Testator's thumb print was applied to Powers of Attorney in favour of Asha and the Defendant granting them authority to deal with his Indian assets. The Defendant claimed that he read the Powers of Attorney to the Testator who nodded his agreement before applying his thumb print. For reasons which appear later, I do not accept the Defendant's evidence as reliable in this regard. I do not accept that it could be relied upon as an indicator of the Testator's cognitive capacity at the time having regard to medical reports covering the period from December 2017 to April 2018.

30. Dr Arjundas visited the Testator for the second time in Dubai at the beginning of January 2018. There is a video around that time of the Testator failing to recognise his granddaughter Pooja and mistaking her for Ashna.

31. In March 2018, Dr Arjundas again visited the Testator in Dubai shortly before he went for intensive rehabilitation in Austria.

32. In April 2018, the Testator was readmitted to the Saudi German Hospital in Dubai and the tracheostomy was closed. Gauri visited the Testator in Dubai between 28 May 2018 and 5 June 2018.

33. In July 2018, Dinesh Giani joined KG International. He was employed by the Defendant as Vice President (Finance, Legal and Compliance). He was one of two witnesses of the Disputed Will and a witness in these proceedings.

34. Two further special powers of attorney were purportedly executed by the Testator by thumbprint on 4 July 2018 granting Asha the authority to sell two plots in Emerald Hills, Gurgaon. On 5 July 2018, two further Dubai general powers of attorney were executed by thumbprint granting Asha and the Defendant powers in relation to the Dubai properties.

35. On 26 July 2018, an email was sent to the HDFC Bank from the Testator's email account, said to have been signed by the Testator and Asha, requesting the Bank to delete the name of the Claimant as mandate holder for “personal reasons”. The future mode of operation would be either the Testator or the survivor.

36. Dr Arjundas made his last visit to the Testator in Dubai in September 2018. In February 2019 the Testator was admitted to the Optima Med in Austria until 7 April 2019. He was accompanied by the Claimant and Gauri and Kunal. On 3 June 2019, he was taken to visit Delhi and Gurgaon for five days.

37. The Testator was admitted to the Shirley Ryan AbilityLab in Chicago, USA for rehabilitation treatment for just under four weeks from 25 June 2019 until 21 July 2019.

38. A number of impairments were noted on the discharge record. They were decreased strength, decreased endurance, decreased balance and decreased cognition. Scores in relation to communication and social cognition at admission and discharge under the general heading ‘Functional Independence Measures’ were set out in the discharge notes. His comprehension was said to be 3 — requiring “moderate assistance”. His problem solving memory was said to be 2 — requiring “maximal assistance”. He also underwent online therapy sessions with Mary Klien, whose evidence was received without challenge.

39. In July 2019, Asha moved in with the Defendant, Nidhi and the Testator.

40. In July 2019, Dinesh Giani was promoted by the Defendant to the office of Chief Financial Officer of KG International.

41. On 29 November 2020, Dinesh Giani sent an email to Dixit Jain in the following terms:

Dixit Jain was a witness in these proceedings.

42. On 12 December 2020, Dixit Jain emailed draft wills to Dinesh Giani, copying in the Defendant. The draft wills appointed the Defendant as executor and sole beneficiary. That accorded with instructions which Mr Jain had received from Mr Giani. The draft wills also appointed the Defendant as the sole executor. That clause was inserted on the basis of Mr Jain's assumption that the Defendant, being sole beneficiary he would also be sole executor.⁷ Mr Giani asked Mr Jain to amend the draft to make the surviving spouse sole beneficiary on the first death and the Defendant substitute beneficiary. Mr Jain did that on 14 December.⁸ The provision appointing the Defendant as sole executor — cl 2(c) remained in each of the drafts. On 22 December 2020, following a request from Mr Giani to let him know whether the text of the draft wills was approved, the Defendant replied “text is approved Dinesh, what's next?”. Mr Giani's query was made by WhatsApp inquiry on 22 December 2020 at 16:01. The Defendant replied one minute later. The Claimant pointed out that it would have been impossible for the Defendant to check with his parents in the space of one minute whether they approved the draft wills.⁹

43. The revised draft wills were emailed by Mr Jain to Mr Giani on 23 December 2020 incorporating a change to cl 3 in which the words “as to which my Executors and/or Trustees shall be the sole judges” to “as to which my son (MR ROHIT KEDARNATH GUPTA) shall be the sole judge”. Mr Giani had made that unsolicited change to provide what he called “more clarity” given that the Defendant was to be the sole executor. The Defendant had no recollection of the change.¹⁰

44. Mr Jain then provided Mr Giani with a draft email to be sent to the DIFC Courts Will Service about registering the wills. Mr Giani sent the email to the Service on 29 December 2020.¹¹ On the same day the Service replied stating that its policy was to “only register Wills that had been drafted either by the testator (the person making the Will) or by a registered Wills Draftsman (a lawyer authorised by our office to draft DIFC Wills)”. A draft could only be accepted through the testator or a registered Draftsman. The testator was asked to sign a declaration attached to the email “acknowledging that you have drafted the will yourself and that you have not received legal advice regarding the will.” Two declarations were subsequently returned to the DIFC Wills Registry, one purportedly signed by the Testator in relation to his will and the other signed by Asha in relation to her will. The text of the declaration bearing what was said to be the Testator's signature was in the following terms:

45. The Declaration was clearly false. The date of the Declaration preceded the date of the making of the disputed Will. The same comments are true of the Declaration signed by Asha.

46. On 10 January 2021, Mr Giani returned the signed Declarations and revised unsigned wills to the Service.¹² He inserted of his own accord a response to the Service query whether it was intended to include any substitute executors in case the Defendant's appointment failed. Mr Giani replied that “no we want only Rohit to be the executor.” This was evidently not discussed with the Defendant or the Testator.

47. The Service replied with further comments on 11 January 2021 and revised drafts were emailed to it on 13 January 2021. The Defendant acknowledged that these changes and comments had not been discussed with the Testator.¹³ The Service responded on 26 January 2021 that it had no further comments on the drafts and asked that a registration appointment be scheduled through its website.

48. The execution of the will was witnessed by Mr Giani and Badal Babariya. Mr Babariya was a Mechanical Engineer with qualifications in interior design who had moved to the UAE in 1998 and developed a friendship with the Testator whom he had met about 20 years ago. He met the Defendant in 2007 through the Testator. He had worked with him in connection with the interior design of Emirates Hills Villa. He was asked to act as a witness to the will by Mr Giani around January 2021.

49. The execution of the will was conducted by way of a remote hearing with an officer of the DIFC Wills Registry participating by video link to the Testator and Asha and Mr Giani who was sitting next to the Testator when the Will was executed. Mr Babariya participated online from his own device. A copy of the will as executed is annexed to these Reasons as Annexure A.

50. The video recording of the execution of the 2021 DIFC Wills of the Testator and his wife shows the Registry Officer first asking the Testator to show his Emirates ID. This was done without further prompting. The Officer then read aloud the major provisions of the Testator's Will stating that it related to his assets in India and Dubai and that the residuary estate was to pass first to his wife and if that failed to the Defendant. The officer asked if the Testator had any questions to which he responded, without prompting, “No”. At the end of the recording the officer asked whether the attendees had any questions and the Testator again shook his head.

51. The Defendant acknowledged in closing submissions, that the video did not show the Testator clearly. However, it did show that he was able to hold up his Emirates ID without being prompted and when asked a direct question, answered without prompting.¹⁴

52. The Disputed Will covered the Testator's estate in both Dubai and India. The Defendant was made sole executor. The residual estate went to Asha or if she were to predecease the Testator, then to the Defendant. The Claimant received nothing under the Will.

53. On 9 December 2021, the Testator died.

Deed of Family Settlement

54. Late in December 2021, discussions ensued between members of the family about a possible ‘Deed of Family Settlement’. A Deed was prepared on 22 December 2021 and signed on that day. The named parties to the Deed were:

The parties were collectively referred to in the Deed as “family members”. The recitals to the Deed included the following:

The Deed provided in summary that:

55. This Deed of Family Settlement would have transferred properties valued at approximately USD 6.8 million to the Claimant.

56. On 22 December 2021, the Deed of Family Settlement was signed by Asha, by the Claimant and the Defendant and their other family members save for Gauri who refused to sign the Deed. A further deed was prepared at Asha's request. It made additional provision for the Claimant, but he refused to sign it.

The grant of probate

57. On 27 December 2021 the Defendant applied for a grant of probate. He enclosed a copy of the Disputed Will and of the Testator's death certificate with that application.

58. In early January 2022 in response to a request from the Claimant for a copy of the Testator's death certificate, the Defendant instructed Karan and Mr Giani to tell the Claimant that they did not have the death certificate. Karen and Mr Giani did so. This was a false statement.

59. Ultimately, a copy of the death certificate was emailed to the Claimant on 16 January 2022 following an intervention by Pawan Gupta.

60. On 10 January 2022, the Claimant had emailed the DIFC Courts requesting a copy of the Testator's Will. He was referred to the Defendant as executor. The Courts explained that the Claimant could otherwise “file a Part 23 Application under the relevant probate case […] supported by an affidavit setting out your reasons for wanting to see a copy of the Will.”¹⁵

61. On 11 January 2022, the Claimant sent an email to the Defendant, Asha and Karan repeating his request for a copy of the Will. He said he wanted to see it “before you expect me to sign off on any settlement you are trying to offer me” and that “as his son I have the right to read his Will.”¹⁶

62. On 20 January 2022, legal representatives of the Claimant wrote to the Defendant requesting a copy of the Will. It was not provided. On 27 January 2022 the legal representatives submitted to the DIFC Courts an application pursuant to Part 23 Wills and Probate Registry Rules (the “WPR Rules”) requesting a copy of the Will. The legal representatives also filed an objection to the grant of probate issuing to the Defendant.

63. The Defendant sent an email to the DIFC Courts on 24 February 2022 objecting to the Claimant's application for a copy of the Will and urging the Court not to disclose it.¹⁷

64. On 14 March 2022, a Deputy Registrar of the Court made an order dismissing the Claimant's application for access to the Will of the Testator. There was then no reference to the Claimant's objection which appeared not to have been registered. A standard grant of probate was issued to the Defendant on 29 March 2022.¹⁸

Initiation of the present claim

65. On 27 August 2024, two years and five months after the grant of probate, the Claimant issued a Probate Claim against the Defendant in the DIFC Court of First Instance challenging the validity of the Disputed Will.

History of other proceedings between the Claimant and other family members

66. There was evidence of proceedings initiated by the Claimant in the Courts of Sharjah, Dubai and India in which allegations were made that the Will had been forged. The motives and merits of those proceedings are peripheral to the issues which have to be determined on the pleadings in this case. They do, however, form part of surrounding circumstances indicating the poor state of the relationships between the Claimant on the one hand and his mother and the Defendant on the other.

The Pleadings

67. It is sufficient to outline the essential elements of the pleadings filed in this case. They provide the framework for its determination.

Amended Particulars of Claim — 25 June 2025

68. The Particulars of Claim filed on 21 August 2024 were amended on 25 June 2025. They pleaded uncontentious aspects of the factual background which has been outlined above.

69. The Claimant alleged that the Testator had suffered a serious cerebral stroke in September 2017 which left him with severe and serious physical and mental disabilities and that his health further deteriorated in the years after the stroke leading to his ultimate death in December 2021.¹⁹

70. The 2021 DIFC Will purported to replace a valid will executed in 2013. The Particulars referred to an alternative draft will prepared in 2017 before the Testator's stroke which named the Claimant as a substitute beneficiary to a 50% share in the Testator's estate in the UAE in case of the death of the principal beneficiary, Asha. The 2021 DIFC Will made no reference whatsoever to the Claimant. This contrasted with the terms of the 2013 Dubai Will and the 2017 draft DIFC Will which were said to record “the true testamentary intentions and desires of the Deceased in respect of his estate”.²⁰

71. Then it was said that the Testator lacked the requisite knowledge and approval of the contents of the 2021 DIFC Will at the time of its execution and registration and further that he lacked the requisite testamentary capacity at the time he executed the 2021 DIFC Will. At the date of execution he was said to be incapable of fulfilling his own basic daily needs and lacked the cognitive faculties required to understand and approve the contents of the 2021 DIFC Will and/or the fact that the execution of the Will meant that the Claimant and the Claimant's family would be disinherited from the entire estate. Further and in the alternative the Defendant was said to have full control and that he and his wife, along with Asha, exercised undue influence to coerce the Testator into executing the 2021 DIFC Will. The Claimant contends that the 2021 DIFC Will must be found to be invalid on one or all of these grounds.²¹

72. The Amended Particulars of Claim referred to the standard grant of probate for the terms of the 2021 DIFC Will on 29 March 2022. The Claimant contended that the application for the grant of probate and the existence and/or contents and/or a copy of the 2021 DIFC Will had been hidden from him in order to prevent him from pursuing legal proceedings to enforce his legitimate claims and rights. He asserted that he was filing the claim to revoke the Grant of Probate such that the residuary estate could be distributed in accordance with the 2013 Dubai Will, which was the last valid testamentary document of the Testator.

73. The Amended Particulars then set out five sections:

74. The Amended Particulars referred to the details of the 2013 Dubai Will, the 2017 draft Will and the Testator's health in 2017 onwards. Details of the Testator's health and treatment from 2017 onwards were set out along with the contention that his health was significantly and irreversibly damaged by the stroke to the extent that his mental capacity was severely diminished by it. It was alleged that he would not have been capable of making decisions regarding the substantial assets which his estate comprised.²²

75. In Section B dealing with the execution of the 2021 DIFC Will, it was alleged that the Defendant, Nidhi his wife and Asha had access to and control over the Testator who resided at the Defendant's residence. It was pleaded that the Defendant and his wife and Asha had caused the Testator to enter into Powers of Attorney, one dated 17 December 2017 and three dated 20 May 2018, which granted Asha the authority to deal with the Testator's Indian assets under the first Power of Attorney and worldwide assets under the subsequent three Powers of Attorney. The Powers of Attorney were executed using the Testator's thumb print. Prior to the stroke, it was said in June 2017, the Testator had executed a Power of Attorney dated 23 June 2017 which granted the Claimant the authority to deal with the Indian assets.²³

76. The original Power of Attorney was revoked on 29 June 2021, only weeks before the death of the Testator. That action was said to be at odds with his will, intent and desire when he was physically and mentally capable of making such decisions.²⁴

77. The Defendant was alleged to have taken advantage of the Testator's incapacities and inabilities and to have obtained the 2017 and 2018 Powers of Attorney by exercising undue influence over him.²⁵

78. As to the execution of the 2021 DIFC Will, the Amended Particulars of Claim set out the circumstances of its execution, its content, and the witnesses, and allege that the Testator was not in a physical and emotional state to execute the Will which dealt with the succession of his AED 350 million estate.²⁶

79. The Claimant alleges that he requested the death certificate of his father from the Defendant but that the Defendant had refused. It was only on 16 January 2022 that he received a copy issued by the UAE Government.²⁷

80. The Claimant said he was not served with a copy of, and did not receive notice of, the application for the grant of probate. On 14 February 2022 he received a summons and a copy of a suit filed by Asha in proceedings in the Republic of India which recorded that the Defendant had filed an application for probate without supporting documents.

81. The Claimant commenced proceedings in the Dubai Courts but the claim was dismissed for lack of jurisdiction.²⁸

82. The core assertions supporting the claim that the 2021 DIFC Will is legally invalid were set out in paragraph 40, which it is convenient to replicate:

83. These allegations were elaborated. The Claimant's legal position formulated by reference to English cases was that the Court must consider “all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix [or testator] knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix [testator] read the document, and the fact that she [or he] executed it, must be given the full weight apposite in the circumstance, but in law those facts are not conclusive, nor do they raise a presumption.”²⁹ (emphasis in original)

Will not reflective of Testator's true intentions

84. The Claimant set out factual matters relied upon for the proposition that the 2021 DIFC Will did not reflect the Testator's true testamentary intentions and desires:

85. According to the Claimant, the Defendant was put to proof that the 2021 DIFC Will reflected the Testator's testamentary intentions and was the last will of a free and capable testator.

Testamentary Capacity

86. The Claimant set out the test for a finding that a testator has testamentary capacity by reference to Banks v Goodfellow. [1869-70] LR 5 QB 549 (“Banks”). It was said to be clear that the Testator fell significantly short of meeting the elements of the test.³⁰ There was said to be a golden rule not adhered to in the execution of the 2021 DIFC Will that where there is a doubt as to the mental competence of the testator, the lawyer preparing the will should arrange for it to be “witnessed and approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator and records and preserves his findings.”³¹

Undue influence

87. Under the heading ‘Undue Influence’, the Claimant asserted that should the Court find that the Testator did have the requisite knowledge and approval of the contents of the 2021 DIFC Will and testamentary capacity to validly execute it, it was nonetheless procured by the undue influence of the Defendant, his wife and Asha.³² The legal test for undue influence was said to be “pressure that overpowers the volition without convincing the testator's judgment”. Reliance was placed on the judgment of Judge Jarman QC in Chin v Chin.³³ The Testator was said to have been under the overbearing pressure and control of the Defendant and his wife at the time that he executed the 2021 DIFC Will.

The relief sought

88. The Claimant sought the following relief:

The Re-amended Defence

89. The execution and contents of the 2013 Dubai Will and the 2021 DIFC Will were not in issue between the Parties.

90. The Defendant challenged “the unparticularised allegations” about the Testator's capacities and the alleged undue influence and:

91. The Defendant admitted his application for a standard Grant of Probate to enforce the terms of the 2021 DIFC Will and alleged that in so applying, he complied with the Rules of the Court in connection that that application. He admitted the issue of a Standard Grant of Probate on 29 March 2022, but denied that the application for the Grant was concealed from the Claimant. He denied that the Claimant was entitled to the relief sought absent particulars of exceptional circumstances relied upon in support of the claim as required by Rule 50(4) of the WPR.³⁵

92. The Defendant admitted that the Testator had executed a valid 2013 Dubai Will, but alleged that on 22 June 2016 he had executed a DIFC Will revoking the 2013 Dubai Will to the extent that it related to the Dubai estate.³⁶ There was then pleading relating to the 2017 Draft DIFC Will. The Defendant said that he did not know and could not admit or deny when its preparation was arranged and could not admit or deny the Claimant's allegation about the state of health of the Testator at the time any alleged arrangement was made.³⁷ The Defendant first became aware of the 2017 Draft DIFC Will when he was provided with the Particulars of Claim and accompanying documents. He denied that he had in his possession the original, knew of its whereabouts or was able to produce it.³⁸

93. The Re-amended Defence then dealt with the Testator's stroke but denied that the Testator required assistance by way of round-the-clock medical assistance, denied that he was unable to communicate and denied that he was unable to properly care for himself.³⁹

94. The Defendant denied the allegation in paragraph 25 of the Amended Particulars of Claim that the Testator's health was significantly and irreversibly damaged by the stroke to the extent that his mental capacity was severely diminished by it. He denied that the Testator would not have been capable of making decisions regarding the substantial assets which his estate comprised.⁴⁰ He admitted that the Testator had moved into his and his wife's residence. He said that Asha moved there in the middle of 2020 following the onset of the COVID epidemic. He denied that the Testator was 100% dependent on a 24-hour medical attendant for his basic needs. He also denied that the Testator was mostly housebound as a result of impaired physical and mental abilities.

95. The grant of the Powers of Attorney particularised in paragraph 27 of the Amended Particulars was admitted. However, the Defendant denied that he had control over the Testator so as to cause him to grant the Powers of Attorney.⁴¹

96. Undue influence in relation to the obtaining of the Powers of Attorney was denied. The Defendant did not know and therefore could not admit or deny that the Testator had caused the 2017 Draft DIFC Will to be drafted.⁴²

97. The Defendant admitted that in January 2022 his delay in providing a copy of the death certificate to the Claimant was due to his concern that the Claimant would make improper use of it. He alleged that that concern was not unreasonable in the circumstances given the findings of the Dubai First Instance Courts in Case No 66 of 2023. He further alleged that the Claimant was well aware of the Application for the Grant of Probate at the time but chose not to oppose it.⁴³

98. The Defendant denied that the 2021 DIFC Will is invalid on any of the grounds particularised. In paragraph 42 of the Re-amended Defence, he submitted that the present proceedings were brought under Rule 50 of the WPR Rules and not Part 9 of those Rules. He relied upon Rule 50(4) of the WPR Rules as requiring the Claimant to prove the facts relied upon in support of his claim.

99. It is not necessary to refer to the remaining paragraphs of the Re-amended Defence which are largely repetitious in dealing with the subsequent paragraphs of the Amended Particulars of Claim.

Amended Reply

100. In his Amended Reply, the Claimant claimed to address submissions made in the Defence on a paragraph by paragraph basis. It is not necessary for present purposes to traverse those aspects of the Reply as they are primarily argumentative.

Amended Rejoinder

101. An Amended Rejoinder was filed alleging, inter alia, that the Testator made a substantial recovery from the stroke he suffered in 2017, including recovery of his cognitive capabilities, that as at 16 February 2021 he possessed the requisite testamentary capacity and the requisite knowledge and approval of the contents of his will. The Defendant contended that in so far as paragraph 33 of the Amended Reply contained details in support of allegations of undue influence, lack of testamentary capacity or lack of knowledge of or approval of the contents of the 2021 DIFC Will, it failed to set out facts and matters relied on in support of those allegations contrary to Rule 55.8 of the RDC. The Defendant put the Claimant to what he called “strict proof” as to the remainder of paragraph 33.

102. In paragraph 34 of the Amended Rejoinder, the Defendant asserted the application to these proceedings of Rule 50 of the WPR Rules and, in particular Rule 50(4), by reason of RDC 55.1(3). The Claimant was said not to have alleged or particularised the exceptional circumstances within the meaning of Rule 50(4) of the WPR Rules relied upon in support of the claim or which would be relied upon if the Court were to uphold the Defendant's contention as to the application of Rule 50 of the WPR Rules.⁴⁴

103. In determining whether exceptional circumstances existed and whether or not in that event it should exercise the discretion conferred upon it by Rule 50(2) of the WPR Rules, or alternatively in its inherent jurisdiction to refuse relief, it was said that the Court should take into account:

104. Further it was said that before the Court could grant the relief sought by the Claimant, the Claimant must satisfy the Court about the reasons for delay in making the application given his awareness of the Defendant's application for the grant of probate and his failure to object in accordance with Rule 60 of the WPR Rules — despite being advised by the Court of the necessary procedure for doing so.⁴⁵

105. Then it was said that in the circumstances, including the delay and “the absence of exceptional circumstances as required by WPR Rule 50(4) and the proceedings maintained by the Claimant in other Courts as particularised below, the Claimant's claim was an abuse of process”.⁴⁶

106. In paragraph 43 of the Amended Rejoinder, the Defendant asserted that:

107. It is necessary at this point to set out the legal framework within which this case has to be decided.

Non-Muslim Wills in the DIFC

108. Dubai Law No (15) of 2017 Concerning Administration of Estates and Implementation of Wills of Non-Muslims in the Emirate of Dubai makes provision for wills by non-Muslims applicable to the Emirate generally and including the DIFC. There is a DIFC Wills and Probate Register established pursuant to Dubai Law No. (15) and a process for the registration of DIFC Wills. Probate claims in relation to such Wills are covered by RDC Part 55 and a separate set of Rules known as the WPR Rules. The Registry is supported administratively by the DIFC Wills Service Centre. The relevant Rules and contentions about their application in these proceedings are set out later in these Reasons.

Dubai Law No (15) of 2017 Concerning Administration of Estates and Implementation of Wills of Non-Muslims in the Emirate of Dubai

109. Dubai Law No (15) of 2017 applies, by Art (3) “to all Wills and Estates of non-Muslims in the Emirate, including in the Dubai International Financial Centre”.

110. Article (7) deals with the execution of Wills and relevantly provides:

111. In Article (2) the Law defines the term “Register” as:

112. Article (6) requires the creation of Registers:

113. The term “President” is a defined term in Article (2) as “The President of the Dubai Courts or the Chief Justice of the DIFC Courts, as the case may be.”

114. Article (8) sets out the requirement for registering wills on the Register:

115. Article (9) paragraph a. sets out conditions for the validity of wills and relevantly provides:

116. Paragraph b. of Article (9) provides:

117. The term “Competent Court” is defined in Article (2) as “the Dubai Courts or the DIFC Courts, as the case may be”.

DIFC Rules of Court — Probate Claims

118. The Rules of Court provide for probate claims in Part 55. The term “probate claim” is defined in RDC 55.1(2) which relevantly provides:

The term “WPR” is defined as “the DIFC Wills and Probate Registry”. The WPR Rules are the DIFC Wills and Probate Registry Rules.

119. RDC 55.1(3) provides that:

120. RDC Part 55 sets our procedural requirements for probate and other claims relating to wills. Part 1 dealing with probate claims is concerned with:

121. In relation to revocation of existing grants RDC 55.6 provides that every person who is entitled, or claims to be entitled, to administer the estate under that grant must be joined to the claim.

122. RDC 55.8 sets out the contents of Statements of Case:

123. RDC 55.9 and RDC 55.10 set out requirements in relation to counterclaims. Failure to acknowledge service or to file a defence is dealt with in RDC 55.11, discontinuance and dismissal in 55.12; case management in 55.13 and settlement of a probate claim in 55.14.

124. So far as it relates to the revocation of grants of probate, RDC Part 55 sets out the procedural requirements where such claims are made. The Court's jurisdiction and powers in relation to the revocation of grants of probate, the WPR Rules set out the powers of the Court and the conditions attaching to those powers.

125. It will be observed that the Rules do not provide for the grounds upon which a court may revoke a grant of probate.

The WPR Rules

126. The Disputed Will was registered with the DIFC Wills and Probate Register. The Wills and Probate Rules of the Register apply to it. The WPR Rules derive legislative authority as explained in Rule 1:

127. The overriding objective is set out in Rule 6:

128. Rule 7 makes provision for ‘Practice Directions’ which may supplement the Rules.

129. The general powers of the Wills Service, the Registry, the Registrar and the Court are set out in Rule 8.

130. Rule 8(1) establishes a Wills Service to be known as ‘the DIFC Wills Service’. Under Rule 8(2) its functions shall be “the administration of Wills prior to their registration at the Registry”. All matters requiring adjudication arising in the administration of the Estate and the issue of Grants shall be referred to the Court. Under Rule 8(5) the Registry is under the management of the Registrar of the Dubai International Financial Centre Courts.

131. Under Rule 9(1)(a) the Rules apply only to wills of non-Muslim individuals over the age of majority. They must be in a form set out in Schedule 1 to the Rules and witnessed by at least two witnesses of the age of majority being either physically or virtually present in front of the Registrar or an Authorised Officer at the time of witnessing (Rule 9(1)(b). They must be signed in person by the testator (Rule 9(1)(c)).

132. Rule 9(7) provides:

133. Rule 10 provides for the registration of Wills. Relevantly it includes the following:

134. Part 4 of the WPR Rules deals with the construction and effect of a Will. Rule 13 sets out rules of construction applicable to Wills.

135. Part 6 deals with revocation of Wills. Rule 18(1) sets out the general rule for revocation by a later valid will or a written declaration of intention to revoke. WPR Rule 18(2) provides for confirmation of revocation by the Court save for the case of a later will validly executed and registered in accordance with the WPR Rules.

136. Rule 18 sets out the general rule for revocation of a will by a later will validly executed or by a written declaration of intention to revoke, executed in the manner in which a will is required to be validly executed by the law of the testator.

137. WPR Rule 18(2) provides that any revocation under sub-rule 18(1) shall be confirmed by an order of the Court except in the case of a later will validly executed and registered in accordance with the Rules.

138. Rule 19 applies for revocation by change in circumstances relating to the marriage of the testator.

139. Part 7 deals with ‘Standard types of Grants’. Rule 20, appearing in Part 7, refers to ‘Grants in Common and Special Form’:

140. Rule 21 provides for Grants of Probate and provides inter alia:

141. Part 11 deals with the duties and discretionary powers of the Court. Rule 50 provides for revocation (or amendment) of Grants of Probate in the following terms:

Practice Direction No 1 of 2016 — DIFC Wills and Probate Registry's Register of Will Draftsmen

142. Practice Direction No. 1 of 2016 — DIFC Wills and Probate Registry's Register of Will Draftsmen (“PD 1/2016”) was issued by Chief Justice Michael Hwang to come into effect on 1 March 2016. The Practice Direction defined a class of person known as a ‘Will Draftsman’. The Registry was required to establish and maintain a Register of persons authorised to draft wills for registration in the Register (cl 3).

143. The Practice Direction then went on to require:

Clause 5 of PD 1/2016 required a testator who had not drafted his or her own will to submit proof to the DIFC WPR that the will had been drafted by a Will Draftsman and specify the means of providing such proof.

144. The PD then set out a procedure for registration of Will Draftsmen in the Register. This included an interview with the Authorised Officer and payment of a fee for registration and renewal.

The exceptional circumstances question

145. The Defendant contended that it is necessary in these proceedings that the Claimant establish the existence of exceptional circumstances before the Court could revoke the existing grant of probate.

146. The Disputed Will attracts the application of the WPR Rules which are set out above.

147. Rule 50 of the WPR Rules sets out the conditions for the revocation of a grant of probate.

148. WPR Rule 50(1) and (2) confer conditional discretionary powers on the Court — the power to review the grant and the power to revoke the grant. By WPR Rule 50(3) the power to revoke conferred by WPR Rule 50(2) shall be exercised only in exceptional circumstances.

149. The Defendant submitted that the requirement of exceptional circumstances meant that something more must be demonstrated beyond the Court being satisfied that the grant should be revoked. Perhaps another way of putting the point is that where circumstances are shown upon which the Court is satisfied that the grant should be revoked, they must be exceptional circumstances.

150. The Defendant accepted that the claim is a “probate claim” within RDC Rule 55.1. However, the structure of the provisions was said to indicate that unlike the English non-contentious probate rules and Part 57 of the English Civil Procedure Rules, they were to be read as a cohesive package. WPR Rule 50(4) was applicable.

151. The Claimant was said not to have attempted to explain how the requirements of WPR Rule 50(4) were satisfied in this case. The issue had not been raised in the Amended Defence, the Amended Reply or the Amended Rejoinder.

152. It was said to be open to the Court to proceed on the basis that as the existence of “exceptional circumstances” is a prerequisite to the revocation of a grant by reason of WPR Rule 50(4), the Claimant's failure to allege or particularise any such circumstances and simply rely upon the alleged invalidity of the 2021 DIFC Will itself, is fatal to the claim.

153. The Defendant contended that whatever the ambit of exceptional circumstances might be the present case could not be regarded as satisfying them. In so submitting, he referred to:

154. In Closing Reply Submissions, the Claimant submitted that WPR Rule 20(3) was a complete answer to the Defendant's contentions. Rule 20(3) was said to make it clear that WPR Rule 50 was simply not engaged here because this is a probate claim, not an application for revocation made pursuant to WPR Rule 50(2).

155. It was said to be common ground that the claim before the Court is a probate claim within the meaning of the RDC. WPR Rule 20(3) made it clear that a probate claim is one of two distinct and alternative mechanisms by which a grant can be revoked. The other being WPR Rule 50. To argue, as the Defendant did, that the WPR Rules and Part 55 of the RDC were intended to be read together, was not an answer.

156. The Claimant's argument on Rule 20(3) was said to fit naturally within the overall structure of the legislative scheme governing DIFC Wills.

157. Just like its English counterpart, the DIFC scheme was said to envisage two different types of grant of probate: common form grants and special form grants. Common form grants are made where the validity of a Will is not contested or questioned. Special form grants are only made where the Court, after the trial of a probate claim, declares the validity of the Will or part of the Will. That is to say, they are a type of grant which cannot be obtained by a simple application.

158. The crucial difference between the two types of grant is that while common form grants are revocable either under WPR Rule 50 or by a probate claim — special form grants are irrevocable (unless obtained by fraud).

159. The scheme was said to fully recognise the possibility that a DIFC Will may be invalid notwithstanding that it was executed in the presence of an Authorised Officer and registered. If the law-maker had considered that safeguard was sufficient, the scheme would have made DIFC Wills unchallengeable altogether and there would have been no need to include provision for objections. The Claimant also noted that in relation to testamentary capacity, the scheme expressly provides that the Authorised Officer “shall be under no duty to check or ascertain the mental capacity of the testator”. Further it would be impossible for the Authorised Officer to ascertain whether a testator was being subjected to undue influence. It was therefore perfectly possible for a DIFC Will to be invalid despite the safeguards referred to by the Defendant.

160. The Claimant contended that the “short, simple and complete answer” to the Defendant's WPR Rule 50(4) argument was that the Rule is not engaged in this case because this is a probate claim, not an application for revocation of a grant made pursuant to WPR Rule 50(2).

161. As a fallback position, the Claimant said that if WPR Rule 50 is somehow engaged, exceptional circumstances exist. The exceptional circumstances set out in the Claimant's Closing Submissions were:

Consideration and conclusion on the exceptional circumstances argument

162. In my opinion the power of the Court to revoke a grant of probate of a DIFC Will, whether it be in common or special form, is to be found in the WPR Rules. The RDC set out procedural requirements where such a claim is made. Those requirements resemble the requirements of Rule 57.6 of the Civil Procedure Rules 1998/3132 of the United Kingdom.

163. In the United Kingdom the Probate Jurisdiction of the High Court of Justice is conferred by s 25 of the Senior Courts Act 1981. It is defined by reference to “such jurisdiction in relation to probates and letters of administration as it had immediately before the commencement of this Act, and in particular all such contentious and non-contentious jurisdiction as it then had in relation to… (b) the grant, amendment, or revocation of probates and letters of administration;”.

164. The jurisdiction, so far as it relates to revocation of grants of probate, is part of the inherent jurisdiction of the Court and is assigned to the Chancery Division. The concept of inherent jurisdiction there incorporates the concept of the powers of the Court in the exercise of its jurisdiction.

165. The jurisdiction and powers of the DIFC Courts relevant to this Application derive, in this case, from the WPR Rules.

166. Under WPR Rule 50, it is clear that the onus is upon the applicant for revocation to satisfy the Court, first that the Grant ought not to have been made and second, that the Grant should be revoked. The requirement in WPR Rule 50(4) that the power to revoke “shall be exercised only in exceptional circumstances” in my opinion places the onus on the applicant for revocation to demonstrate exceptional circumstances.

167. It may be accepted, however, that a want of testamentary capacity at the time of the making of the Will will constitute an exceptional circumstance. It does not of itself affect the burden of proof in relation to testamentary capacity as described in the authorities referred to below. But a claim to revoke a will rational on its face at a significant time after probate has been granted, requires close examination where testamentary incapacity is invoked. The judgment as to testamentary incapacity may, as in this case, involve consideration of the testimony of lay witnesses who have their own particular perspectives which may be strengthened at the cost of accuracy by the passage of time. Although in a case where real doubt as to capacity has been raised the ultimate burden shifts to the proponents of the will, the standard of proof remains satisfaction on the balance of probability which must necessarily take into account the uncertainties surrounding any findings as to facts based on the testimony of lay witnesses.

The law on testamentary capacity of the testator

168. It was common ground that the applicable legal test for testamentary capacity was that formulated by Cockburn CJ delivering the judgment of the Court of Queen's Bench in Banks. That case concerned a testator who, it was common ground, was at times of such unsound mind as to be incapable of making a will.⁴⁷ He suffered from delusions. It was, however, taken as a fact that the testator was able to manage his own affairs and that no delusion manifested itself at the time of making the contested will. The Court had to consider whether delusions arising from mental disease but not calculated to prevent the exercise of the faculties essential to the making of a will, or to interfere with the consideration of the matters which should be weighed and taken into account on such occasion, and which delusions had in point of fact no influence whatever on the testamentary disposition in question, were sufficient to deprive the testator of testamentary capacity and to invalidate a will.

169. At p 565 the Court, in a much cited passage, referring to the power of testamentary disposition, said:

170. As appears from the expert medical evidence of Professor Burns who was called by the Claimant, the degree of cognitive capacity necessary to a testator to understand the contents of his will, can depend upon their complexity. It reflects a more general proposition about the validity of deeds where the capacity of the person executing the deed is in issue — set out in the joint judgment of Dixon CJ, Kitto and Taylor JJ in Gibbon v Wright (1954) 91 CLR 423 at 438:

171. That dictum was applied in Re Beaney [1977] 1 WLR 770 (“Re Beaney”) by Martin Nourse QC to an inter vivos disposition. He went on to observe that:

That said, the level of cognitive capacity necessary to support an understanding of the contents of a will may differ according to its complexity. That is a proposition of medical science, not a proposition of law. It however coincides with what can properly be described as the common sense observations made by the High Court of Australia and applied in Re Beaney.

172. The Claimant referred to guidance on the Banks’ test provided in a number of recent English decisions. In one of those decisions, upon which he particularly relied, Leonard v Leonard [2024] EWHC 321 (“Leonard”), some emphasis was placed upon the rationality of the challenged disposition. In a passage quoted by the Claimant, Joanna Smith J stated at [152]:

173. Joanna Smith J went on to refer to the necessary capacity of the testator to comprehend the nature of the claims of others who are excluded by the will from participation in the estate. Reference to the terms of a previous will might be a helpful safeguard when seeking to confirm that the third limb of Banks is satisfied, but the relevance of any changes and the inquiry about them will depend on the facts of the case.

174. Joanna Smith J went on to say:

175. The fourth limb of the Banks criteria was described by Joanna Smith J as a separate element. Reference was made to Sharp v Adam [2006] EWCA 449, concerning a testator suffering from multiple sclerosis. The Court of Appeal upheld the Judge's decision that only the fourth element of the Banks’ test was not satisfied owing to the fact that the testator's will was irrational.

176. The Claimant also referred to Key v Key [2010] EWHC 408 (“Key”), in which a will was held invalid because an affective disorder from which the testator was suffering following the death of his wife had robbed him of testamentary capacity. Briggs J said:

177. The Claimant contended that this wide approach to the fourth limb of Banks was endorsed in Leonard, which was considered and followed in Scott v Scott [2025] EWHC 2796 (Ch).

178. The 20^th edition of Theobald on Wills at 4-016 was cited:

179. Relevantly to the present case, the Claimant cited Oliver v Oliver [2024] EWHC 2289 (Ch). In that case the testator was held to have lacked testamentary capacity as a result of ischemic heart disease which had caused brain damage. The judge there said that:

180. As to the burden of proof, the Claimant relied upon the statement of Briggs J in Key, endorsed by the English Court of Appeal in Hughes v Pritchard [2022] EWCA Civ 386 at [64]. Briggs J said:

181. A number of cases in which that approach was endorsed were cited, including the judgment of Joanna Smith J in Leonard, who referred to the assessment of “real doubt” and the nature of the evidence required:

182. The Defendant in Closing Submissions cited the observations of Briggs J in Key on the question of burden of proof but went on to point out that the burden of proof can shift during the course of a case. In particular, the Defendant cited Theobald on Wills at 4-020 where it was said:

183. The Defendant contended that the present case falls well within the category of cases described in which capacity will be presumed. The Disputed Will was said to be rational on its face. Its terms were said to be eminently sensible and to portray no sign of incoherence, irrationality or strangeness. The 28 minute video covering the execution of the Disputed Will was said to demonstrate beyond a doubt that it was properly executed.

184. In the event, the essential legal principles informing the determination of testamentary capacity and the burden and standard of proof were not in serious dispute between the parties. Banks’ criteria were seen as applicable and formed the bases upon which the medical experts were asked to provide their opinions.

185. It can be accepted however, that the authorities allow that testamentary capacity is a mixed question of law and fact and is, to a degree, ambulatory depending upon complexity of the will in dispute, the manner of its execution and the factual circumstances against which it is made. Where, a will appears to be rational, on its face and having regard to surrounding circumstances, the rationality is relevant to the cognitive capacity that was exercised in making it.

Want of knowledge and approval

186. The Claimant relied upon the summary by Joanna Smith J in Leonard of the legal principles to be applied in determining whether a testator knew and approved the contents of a disputed will. The summary posited that the requirement of knowledge and approval of a will is a requirement that it truly represents, on the balance of probability, the testator's testamentary intentions. The onus lies on the propounder of the will. Absent anything to excite the suspicion of the court, knowledge and approval will be inferred from proof of due execution and testamentary capacity. Where the circumstances are suspicious, the propounder must affirmatively prove knowledge and approval. The matter is to be approached objectively. It does not involve a value judgment about the justice of the testamentary disposition or the circumstances in which the will was prepared and signed. That proposition was derived from Fuller v Strum [2001] EWCA (Civ) 1879 at [34].

187. Knowledge and approval, it was said, requires that the testator know and approves the content of the will in the sense that he understands both “what he is doing and its effect”.⁵¹

188. Lewison LJ in Simon v Byford [2014] EWCA (Civ) 280 at [47] made the distinction between the capacity to make a will and knowledge and approval of the contents of a will in the following terms, quoted by Joanna Smith J:

189. In Closing Submissions, the Defendant accepted that the legal burden of proof of the testator's knowledge and approval of the contents of a will falls upon the person who propounds the testamentary document. The Defendant, however, went on to make the point that knowledge and approval are usually inferred from due execution of the will by a testator with testamentary capacity and cited Theobald on Wills at 4-049. In order to dispel that inference, a person challenging a will must raise a “well grounded suspicion that the will … did not express the mind of the testator”.⁵²

190. Again, the basic legal principles as advanced by the parties were not in dispute on the question of knowledge and approval.

Undue influence

191. The Claimant, in his Opening Skeleton Argument, relied upon the judgment of Lewison J in Re Edwards [2007] EWHC 1119 (Ch) (“Re Edwards”). The passage cited from that judgment was approved in several subsequent decisions. Without replicating the whole passage, the propositions taken from it included:

192. The Claimant pointed out that in Rea v Rea [2024] EWCA 7169 (“Rea”), the Court of Appeal had reformulated the “reference to facts … inconsistent with any other hypothesis” on the basis that the position had been overstated in Re Edwards. Reference was made in Rea to Theobald on Wills, where it was said:

193. In Rea, Newey LJ said of that passage:

Arnold and Moylan LJJ agreed.

194. The Claimant also relied upon the observation of Mann J in Schrader v Schrader [2013] EWHC 466 (Ch) that it will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence.⁵⁶

195. In his Closing Submissions, the Defendant simply asserted in respect of undue influence, that the burden of proving it lies on the person who asserts it, citing Theobald on Wills (20th ed) at 4-061 and Re: Edwards. Criteria for assessing undue influence were not in dispute.

The Claimant's Witnesses

196. The evidence-in-chief of the witnesses called in this case was by way of witness statements which had been filed and to the truth of which they swore or affirmed. The opinions of one witness about another are generally not relevant. Evidence of conduct and conversations upon which such opinions are said to be based may be taken into account.

First Witness Statement of the Claimant dated 13 November 2024

197. By a Second Witness Statement which was filed on 11 September 2025, the Claimant relied upon his First Witness Statement which had been filed on 13 November 2024 in answer to the Defendant's Application for Immediate Judgment. In the Second Witness Statement, he reiterated the truth of the matters set out in his First Witness Statement.

198. In his First Witness Statement, the Claimant said that in the early 2000s he had moved to India to pursue business opportunities. It now appears to be common ground that that occurred in 1995 or 1996. In the early 2000s he established companies in India in the health and wellness sector. The Testator provided him with advice and moral and financial support, including the purchase of a gym in the name of the Claimant to assist with the setting up of his SYKZ celebrity gym business in Mumbai in 2002.

199. After the Claimant's move to India, the Testator started to invest significantly in real estate there, especially in the city of Gurgaon Haryana where he spent approximately USD 10 million or its equivalent. The Claimant also referred to the Testator's purchase of a property in Goa for the equivalent of approximately USD 1.75 million. This, he claimed, was to form a part of the estate in India which the Testator intended to bequeath to him.

200. The Claimant said that the family remained close and he remained close to the Testator. He regularly made trips back to the UAE to see him. The Testator would travel to India for his business interests and saw the Claimant on a regular basis. The Claimant exhibited to his statement photographs from a 60^th birthday party he organised for the Testator in 2009 and from an occasion in June 2019 when he flew from Mumbai to Delhi to see the Testator. These were said to demonstrate their closeness.⁵⁷

201. According to the Claimant, the Testator began to focus more on his real estate from an office in Dubai, rather than from the KG Group headquarters.

202. The Claimant said he personally never had a dispute with any members of his family, including the Testator and the Defendant prior to the Testator's death.

203. The Claimant asserted that the Testator, prior to suffering from his stroke, was “clear in his intentions as to how his estate should be distributed after his passing.”⁵⁸ He had discussed his intentions for his estate with other family members and with colleagues and associates such as his secretary, Asma Noor (“Asma”). The Claimant referred to messages from Asma in which she confirmed this to him. The Testator was also said to have told the same people that he would leave all his Indian assets to the Claimant. That would not reflect an even split as he had more wealth and assets in the UAE than in India. However the value of the Indian assets was significant. At the time of his death they would have been worth approximately USD 15.75 million. The Claimant also cited information he had received from Asma, from the Testator's brother, his uncle Pawan Gupta and from Deepak Gurnani that the Testator wanted to split his Dubai assets evenly between the Claimant and the Defendant.⁵⁹ This seems to be hearsay evidence which may or may not incorporate expressions of opinion and I disregard it.

204. On 23 June 2017, the Claimant and the Testator met in Delhi. The Testator executed a Power of Attorney in favour of the Claimant. This was a couple of months before the stroke. The Power of Attorney, stamped and registered in India, granted to the Claimant the authority to deal with all of the Testator's assets in India. The Testator had travelled expressly from Dubai to complete that process. The Claimant had not requested it.

205. The Testator also arranged for the Claimant to become the sole authorised signatory for his ICICI Bank Ltd account held in India into which he had deposited 100 million rupees. The Claimant was also authorised as the nominee to the Testator's fixed deposit account held in India with HDFC Bank Ltd in 2017. The Claimant exhibited screenshots showing bank account details for the ICICI Bank account and the online banking page for the HDFC Bank account, indicating that he was nominee.⁶⁰

206. The Claimant then referred to the draft 2017 Will in which he was to be the sole beneficiary of the Indian assets.

207. He had been told by Asma Noor that the Testator kept important documents, including his Wills, in his office in downtown Dubai. As a member of the senior management of the KG Group and a family member, he opined that the Defendant would have been able to access the safe and see copies of the Testator's important personal documents during his lifetime, such as the 2013 Dubai Will. His opinion is speculative and I disregard it.

208. At the time of the Testator's death, the Claimant became aware that a will writing company, ‘Just Wills’, had created the 2013 Dubai Will. He obtained a copy of it from the Courts.

209. After the Testator's death, the Claimant also received what was apparently a copy of the 2017 Draft Will. He did not know whether the Will was ever signed. He referred to the terms of that Draft Will which revoked earlier wills only in respect of assets held in Dubai.

210. The Claimant was told of the Testator's stroke by the Defendant. He immediately travelled to the UAE to see the Testator. He was immobile, and unable to express himself at all.

211. The Claimant travelled back and forth between India and Dubai to visit the Testator during the period, following his stroke, that he stayed at the Saudi German Hospital in Dubai. The Testator spent 46 days there altogether. Following his discharge, the Defendant made arrangements for the Testator to live with his wife, Asha, at the Defendant's house. The Defendant and his wife employed a medical attendant to look after the Testator following the stroke. The medical attendant provided round the clock care. According to the Claimant, the Testator never recovered the ability to speak clearly or otherwise to communicate or to form opinions on anything that was remotely complex.⁶¹ This may be taken as a statement of the Claimant's observation so far as it relates to the Testator's ability to speak. The statement about the Testator's ability to form opinions on complex matters is at best a statement of opinion by the Claimant and I disregard it.

212. The Claimant says that he did not have any disagreement or dispute with the Testator or with the Defendant before or after the Testator's stroke. He said that after the stroke the Defendant told him that the Testator wanted him to have the assets in India.

213. The Claimant then referred in his statement to dealings by the Defendant with the Testator's affairs and assets, which were said to have been undertaken without the Claimant being informed.

214. On 17 December 2017, the Testator's thumb print had been applied to a Power of Attorney (the “2017 PoA”) giving to Asha the authority to deal with the Testator's Indian assets. The Claimant discovered the existence of that Power of Attorney in July 2018 and said he was extremely surprised and upset to learn of its existence⁶²

215. In June 2021, the Claimant confronted his mother about the 2017 PoA. He complained to her that what she and the Defendant were doing was fraudulent and would land them in trouble if he complained to the Indian Consulate. A week later, the 2017 PoA was revoked.

216. The Claimant referred to “other evidence” said to show that the Defendant was taking steps to deal with the Testator's assets within weeks after his stroke.⁶³ These included a letter dated two months after the Testator's stroke. It was a letter from the Defendant to a property developer in which the Defendant requested a meeting to consider looking at the Testator's investment portfolio so that his commitment and liability with the property developer could be reduced as the Testator was going to be incapacitated for a long time.

217. The Claimant pointed to the application of the Testator's thumb print to Powers of Attorney executed in May 2018 giving the Defendant, Gauri and Asha, the power to deal with all of the worldwide assets of the Testator. These Powers of Attorney were said to have been used by the Defendant to effect transfers of assets.

218. The Claimant did not have any conversations with the Testator after the stroke that would have led him to believe that the Testator was able to make any decisions concerning his personal affairs and business. The Claimant said Asha had complained that she had no one to talk to when she was sad and that she was sad every day. The Defendant had told him to let the Defendant handle the Testator's business.⁶⁴

219. The Claimant pointed to the purported revocation by the Testator of the Indian Power of Attorney by a Deed of Revocation dated 28 June 2021. It was attested on 29 June 2021. Its execution was completed at the Defendant's house. According to an email from the Indian Consulate Testation Services dated 16 March 2022, an employee of the Indian Consulate, Anita Gupta, explained that the Defendant's public relations officer had attended the Indian Consulate to arrange a home appointment for the execution of the Deed of Revocation and that the Defendant had specifically requested that the document be executed by way of thumb print rather than by signature.⁶⁵ The application of the Testator's thumb print was witnessed by Asha and Dinesh Giani.

220. The Claimant denied ever having used the Indian Power of Attorney to transfer assets into his name. To the extent that Indian money was transferred to him, it was done by the Testator on his instructions or Asha's instructions. Asha had filed a suit in an Indian court on 4 February 2024 in which, among other things, she sought an injunction to prevent the Claimant from using the Indian Power of Attorney. It was during those proceedings that the Claimant discovered for the first time that the Indian Power of Attorney had been revoked. He said the entire application was redundant given that the Testator had already passed away and he could not use any powers under the Indian Power of Attorney.

221. The Claimant alleged that when the Testator purportedly executed the 2021 DIFC Will he was “suffering with extremely ill cognitive health”. He asserted that the terms of the Will did not accord with his personal relationship and knowledge of the Testator or the Testator's true testamentary wishes. These observations were argumentative statements, not evidence of the fact and are disregarded.

222. The Claimant observed that there had been no dispute or disagreement between him and the Testator and there was no reason or motive for the Testator to have taken the decision to write him out of the Will. I take this as a statement that he had no knowledge of any reason or motive that might have led the Testator to have written him out of the Will. The Claimant said he only became aware of the existence of the Will when, on or about 14 February 2022 he was served with a copy of a suit instituted by his mother in an Indian court.

223. The Testator died on 9 December 2021. The Claimant was in India at the time. He travelled to Dubai to mourn with the family. After the Hindu tradition of 13 days of mourning had been observed, the Claimant asked the Defendant about the Testator's last will and testament. He was not then aware of the 2013 Will, the 2016/2017 draft DIFC Will or the 2021 DIFC Will at the time. A family meeting was subsequently organised. His mother told him that the Testator had written him out of the Will recently and that he was not going to receive anything. They refused to allow him access to the Will or to the death certificate.

224. The Claimant's Witness Statement then set out some comments on the statements made by the Defendant's witnesses in support of the Application for Immediate Judgment. It is unnecessary for present purposes to repeat those comments, which are, in part, argumentative.

225. The Claimant's statement then went on to provide an overview of various legal proceedings between the parties and their background and to explain the time that had elapsed between the grant of probate of the 2021 DIFC Will, which was made on 29 March 2022, and the commencement of the present claim. It is unnecessary for present purposes to review that summary.

Second Witness Statement of the Claimant dated 11 September 2025

226. In his Second Witness Statement, the Claimant referred to the First Witness Statement of 13 November 2024, which was filed in opposition to the Defendant's unsuccessful Application for Immediate Judgment and Strike Out. He said:

There were no further paragraphs in the Second Witness Statement.

Third Witness Statement of the Claimant dated 17 October 2025

227. The Claimant exhibited to his Third Witness Statement a paginated bundle of copy documents and a series of video files. He repeated his assertion that he had maintained a strong relationship with the Testator and the rest of his family throughout the Testator's lifetime.⁶⁷

228. He repeated that the Testator had increased his investment and business activities in India after the Claimant moved there. His mother had stated at paragraph 14 of her First Witness Statement that the Claimant saw the Testator about six times a year before 2017. He thought it was accurate to say that he saw the Testator at least six times a year before the stroke and likely more than six times a year as he sometimes came on his own to India without his wife. However, he did not have an exact record.

229. He again mentioned the celebration in India in 2009 for the Testator's 60^th birthday at which the entire family was present and which he had personally managed.⁶⁸

230. The Claimant did not agree with suggestions from Asha and the Defendant that his relationship with the Testator was strained in 2015 and 2016 because of a history of poor financial management and the failure of his business ventures. The Claimant contended that their views were biased and wrong. The Testator was concerned about the finances of the whole family and his business and investments in the year 2015–2017. Some of the Testator's important commercial relationships and business endeavours were faltering,

including the relationship with Nachi, a commercial partner of KG International, which the Claimant had discussed in his First Witness Statement and which were not related to his own business endeavours.

231. The Claimant then referred to three business ventures which he had established in India with initial funding provided by the Testator. They were:

The Claimant said that the SYKZ Gym became one of India's most reputed gyms with a recognised brand. It was featured on the American broadcaster CNBC and by the Indian broadcaster NDTV. It had loyal celebrity members and thrived for 16 years. In 2018 he left the management of the gym and made an agreement granting to a third party the rights to manage, operate and use the gym brand and premises in exchange for a fixed annual fee. In 2021 after the COVID pandemic, he decided to sell the property altogether. His deal included a grant of the right to the buyer to use the brand name. He said that the new owners are still running the gym under the same brand name.⁶⁹

232. The company, ‘Go Live’, was established in 2008. It managed events, music production and artist engagement. It enjoyed several high profile successes. The Claimant referred to what he called ‘hit tracks’ produced in 2008 and 2014 and the establishment in 2014 with his Go Live business partner, of the brand ‘NOBO (No Boundaries)’. He did not set out the complete history of Go Live.

233. KG Functional Beverages Private Limited was set up in 2011. The Claimant said he developed two successful drink brands under that company, namely ‘Yoga Pulp’ and ‘Restless’. He secured celebrity endorsements and referred to the success of the drinks brands. He is still actively managing both brands and achieved sales of more than 100 million Rupees in the financial years 2018 and 2019.⁷⁰

234. The Claimant contended that none of these business ventures had failed. They each experienced highs and lows, but all had been income generating and featured notable, well-publicised successes. The Testator, he said, was supportive of him and his business efforts.⁷¹

235. The Claimant referred to a statement by Asha alleging that he spent a lot of time on ‘boys trips’ with women from his office. He denied that he had behaved in any way that was inappropriate. Being involved in the music industry and SYKZ gym meant that he was working in a social and professional network, which included models, actors and singers.

236. WhatsApp conversations with the Testator which had taken place before the stroke were cited to demonstrate the trust and goodwill which the Testator placed in him, his business ventures and his character. The Claimant gave examples:

237. The Claimant referred to discussions which he had with the Testator in March 2017 in which the Testator agreed to provide half the funding required for a new factory for the Yoga Pulp business. The other half was to be provided by GD Group/Kapilas with whom the Claimant had reached an initial agreement before the Testator became involved. He said that he had explained to the Testator that the investment was not necessary, but the Testator insisted and said “proceed with GD Group commitment without any worry” and “[y]our factory proposal is independently approved by me…I will send you 50% whenever you ask me…don't worry about it, its committed…proceed without any worry.”⁷³

238. The arrangement was said to have stalled because of the Defendant's conflicts with the Kapilas family. The Testator wrote to the Claimant on 18 April 2017 saying that he “couldn't go ahead with Kapilas for any business venture as there is some serious financial issue between Rohit and Kapilas”.⁷⁴ Although this was a serious blow to the Claimant, he complied with the Testator's wishes.

239. The Claimant also referred to a proposal from the Testator that SNK Rolling Bearings Ltd, a joint venture between the Defendant and Sanjay Shah, invest 50% for the setup of the factory for Yoga Pulp. The Claimant said he did not want to proceed with the factory investment as he did not want the Testator, who had agreed to provide the other 50%, to feel under financial pressure on his account. He messaged the Testator on WhatsApp to reject his proposal on 24 March 2017. He set out the message.

240. The Claimant reiterated that the Testator had sought to ensure that the Claimant and his family were in a secure financial position and provided for and did gift them some properties. When the Claimant's businesses were suffering a loss he offered to assist and support them, even though that support was not sought. The Claimant rejected many offers of help from the Testator.

241. He referred to proactive steps taken by the Testator which demonstrated the Testator's trust in him right up to the date of the stroke. These were:

242. The Claimant again cited the 2016 DIFC Will itself as a strong indication of the relationship they had during that period.

243. Asha had made accusations relating to the period prior to 2017 concerning the Claimant's alleged poor financial management. The Claimant referred to the allegation that she had asked him why he was signing on her account and where rental income from her properties in Mumbai was usually credited. The Claimant did not know to what she was referring. His parents owned the Mumbai property that he lived in with his family but there was never any rental income coming in from that property to account for.

244. The Claimant discussed the Defendant's relationship with the Testator. He spoke of personal benefits conferred on the Defendant from the fruit of the Testator's labour. This included funding provided for the acquisition by the Defendant of shares in KG International, which took place in or around 2015. He referred to the use by the Defendant of a house in Emirate Hills which the Testator owned and which the Testator gifted to him. Later when the Testator needed to use the house as security for a loan to support his business the Defendant refused. The statement that the Defendant had forced the Testator to gift the property to him and that the Defendant had refused to allow the house to be used as security for a loan was not supported by direct evidence. Reference was also made to the Defendant's move to an extremely high-value house in Dubai Hills and his ownership of a range of luxury motor vehicles over time.

245. The Claimant offered a number of reasons why the Testator would have been more upset with the Defendant than he was allegedly with the Claimant. This part of his statement was essentially argumentative, albeit there was reference to the falling out between Nachi and KG International, which he said the Testator attributed to the Defendant.

246. The Claimant asserted that as part of Hindu culture, an Indian father will always pray for the best for his sons.

247. The Claimant contested allegations against him made in the Defendant's First Witness Statement. He denied making demands for assets to be transferred to him immediately. A WhatsApp conversation he had with the Defendant spoke for itself. Rather than demanding funds, he said he pleaded with the Defendant to work together in managing the Testator's assets fairly, honourably and transparently. The Defendant consistently rebuffed his attempts to gather information and make a plan regarding the Testator's assets, both on the phone and in WhatsApp exchanges. They exchanged numerous messages with each other on 6 December 2017 in which the Defendant repeatedly said “we will handle it from here” and “if you don't mind let me handle from here, God willing, will resolve that too.” The Defendant had written to Emaar Properties PSJC on 4 December 2017 purporting to take control of the Testator's property commitments with Emaar in Dubai on the basis that the Testator could not deal with it himself.

248. The Claimant said he had requested information from Asha and the Defendant about the Testator's assets and how they were being dealt with so that he could understand what was happening and could be involved in the management of the assets. When he questioned their decisions it was because he did not believe that they were what the Testator would truly have wanted. The Claimant said that Asha asked the Defendant to arrange for a power of attorney to be put in place to manage the Testator's assets and she would discuss it with the Testator. He was discharged from hospital on 2 November 2017 and the Power of Attorney was executed on 17 December 2017. The Power of Attorney bore an endorsement that it was executed in Uttar Pradesh in India. That was obviously impossible because the Testator was incapacitated in Dubai in December 2017 and unable to travel to India.

249. The Claimant referred to emails disclosed during the proceedings which were sent from the Testator's mailbox as early as 29 October 2017 seeking changes to the Testator's banking authorities. One email to HDFC bank representative, Harsh Gupta, exhibited to the statement, asked for the Defendant, Gauri and Asha to be added as signatories to the HDFC account. At the time the Claimant and the Testator were authorised signatories. The Claimant asserted that it was simply not possible that the Testator was capable of writing an email like that at that time.⁷⁵

250. The Claimant denied that in message exchanges with the Defendant in December 2017 he tried to take control of the assets. He wanted to agree on a way forward and how he could deal with the Testator's assets now that he was incapacitated.

251. He referred to the Defendant's evidence about taking out a loan of INR 40 million in or around October 2020 to provide financial support to the Claimant and their parents. The Claimant observed that the fact that he had to ask the Defendant to provide funds, not the Testator, demonstrated that the Testator was not capable of performing serious financial decisions at that time.

252. The Claimant rejected accusations by the Defendant and Asha that he lacked discipline, enjoyed late night partying and abused drugs and alcohol. However, he acknowledged turning to alcohol after the Testator had suffered his stroke, at a time when he felt “helpless and emotionally worn down”.⁷⁶

253. The Claimant said that in the four years between the stroke and the Testator's death he was unable to have a single meaningful conversation with him. He had travelled to Dubai and stayed in the hospital throughout the Testator's stay in ICU immediately following the stroke. He referred to two individuals who were hired by the Defendant to provide round the clock medical care for the Testator. They were said to have been working night and day shifts given the Testator's inability to look after himself and do anything independently. They supported the Testator with basic needs, such as washing, showering, moving around the house and eating. Both were medical carers. One of them, Anil Korambel Alias held a Bachelor of Science in Nursing. The other, Simoth Sasi, was referred to by Nidhi as a nurse.

254. The Claimant travelled from India to Dubai to see the Testator as often as he could after the stroke. He set out a list of dates based upon passport stamps. Ten visits were recorded covering the period from September 2017 to January 2021.

255. During the COVID period the Claimant had offered to move to Dubai and to stay with the Testator in the flat on a permanent basis. Asha resisted this calling him ‘stupid’.

256. He referred to various claims made by the Defendant's witnesses concerning the Testator's recovery after the stroke. He referred in particular to the statements of Asha and Dinesh Giani as starkly in contrast with what he personally saw, what others saw, the medical evidence that he had seen and the fact and events which occurred in that period. He never saw any meaningful improvement in the Testator's ability to recognise people, understand what was going on around him and to communicate with others.

257. When the Claimant saw the Testator on his trips to Dubai, the Testator was not capable of speaking to him, responding to him or giving him any kind of guidance on family or business matters. He referred to a visit to the Testator in December 2020 and said he was the same as he had aways been since the stroke. He was hardly responsive and had a limited number of words if prompted. He tried to speak to the Testator on video calls while someone else was there to manage it, but the Testator could barely speak and he would get tired after speaking a few words prompted by others, typically Asha.⁷⁷

258. The Claimant referred to a Zoom call on 5 September 2020 to celebrate the Testator's 70^th birthday. The Testator was seated and visible during the call but did not participate actively. He appeared disengaged or confused throughout.

259. The Claimant mentioned a number of videos said to demonstrate that the Testator was incapable of expressing himself independently in the period 2019-2021. The videos were dated 5 September 2019, 7 September 2019, 18 July 2020, and 26 August 2020.

260. The Claimant also referred to the Medical Reports about the Testator. That part of his statement was essentially argumentative. It included opinions as distinct from observations of the Testator's capacity. It also contained opinions about the motives and intentions of the Defendant and Asha. None of those opinions are evidence of the facts.

261. The Claimant dealt at some length in his Third Witness Statement with the conduct of the Defendant and Asha following the Testator's death. He complained that they withheld information, including the Will itself and the death certificate. He rejected the Defendant's claim that he had not wanted to wait for Asha's assets to be passed on in her will and wanted them transferred immediately. He said this did not make sense given that he was entirely in the dark about the wills of both of his parents. Asha had evidently executed a will which granted all or her worldwide assets, including those in India, to the Defendant.

262. The Claimant showed Asha an image of the Power of Attorney for Indian assets made on 21 June 2021. He said on WhatsApp that all transactions in India made without him would come under scrutiny. As noted in his earlier Statement, the Power of Attorney was revoked two days later by a Deed of Revocation. Neither the Testator nor anyone else told him that this was happening and he only found out about it after the death of the Testator. He became aware of the revocation through disclosure of documents in a lawsuit which Asha filed against him in Gurugram in India.

263. The Claimant responded to a complaint by Asha that he used the Indian Power of Attorney to swap a unit in a building called the Picasso Centre in Gurgaon for six units in a development in Goa called the Calissa. The Goa properties were still in the Testator's name and that was the only time he had used the Testator's Power of Attorney to deal with assets. He said that the Defendant and Asha knew that the transaction was happening at the time. He denied misusing the Power of Attorney to make a profit for himself. The Defendant and Dinesh Giani were told about the transaction in July 2020 by email, which is why they sent letters to Amit Talwar on 28 July 2020 and 15 November 2020 requesting that Asha be added to the title deeds of those property, but without telling the Claimant that they were doing this.

264. In relation to payments made by the Testator or Asha referenced in Appendix A and paragraph 44 of Asha's First Witness Statement, the Claimant said he did not think he had received even a fraction of what the Defendant received over the Testator's lifetime. One transaction, INR 750,000 made on 18 January 2018 was in fact a reimbursement of tax deducted at source which he had paid on behalf of the Testator. The rest of the payments were made from the Testator's HDFC and ICICI accounts over which the Testator had granted him control and benefit at the time. He was the sole authorised signatory on the ICICI account, including fixed deposits held with ICICI and he was the nominee for the fixed deposit account held at HDFC. He said he ran the payments in Appendix A past Asha and/or the Defendant for the sake of transparency and they did not deny or contest the results.

265. On 29 November 2020, the Claimant sent a message to the Defendant asking for a list of all the property they currently held which was not leased out. He wanted one property to be permanently in his name or Asha's name or their joint names, where he could come and go as he felt, to stay longer periods of time without having to ask anyone. The Defendant did not reply to his message and he did not hear from him again until 9 December 2021 when he wrote to inform him of the Testator's passing.

266. The Claimant referred briefly to the Witness Statements of Badal Babariya, a witness to the Disputed Will, Sanjay Shah and Dixit Jain called by the Defendant.

267. Badal Babariya was hired by the Testator for about 20 years to design and construct real estate. Contrary to Badal's Witness Statement the Claimant's WhatsApp chats with him indicated that they knew each other well and that Badal told him that his father wanted to gift him apartments in India. Badal had called him a “superhero” after the Testator's stroke and asked him to take care of his health.⁷⁸ WhatsApp exchanges in December 2017 and January 2018 were said to indicate that the Claimant and Badal were well acquainted.

268. Sanjay Shah had a joint venture with the Defendant and SNK Rolling Bearings Ltd. He was reliant on the Defendant from a financial and business perspective. The Claimant offered some argumentative statements about a message from Sanjay Shah dated May 2021 indicating that he would have to inform the Claimant's mother for any decision related to business or bearings, whether with regard to the Claimant or the Defendant. This message was said to contradict statements that the Testator was improving consistently over time. The Claimant denied the contention by Sanjay that his interaction with the Claimant was minimal. His WhatsApp conversations with him were extensive and he met him in person on more than a handful of occasions. Although Sanjay says that he was a witness to the 2016 DIFC Will, the witnesses were in fact Deepak Gurnani and Amy Taggart (an Authorised Officer from the DIFC Wills Service).⁷⁹

Cross-examination of the Claimant

269. The Claimant was cross-examined on the allegation in the Amended Particulars of Claim that the execution of the 2021 DIFC Will was disputed. He said that he had assumed the signature was forged.⁸⁰ He had made this allegation to Police and to the Court in Dubai.

270. The following striking exchange occurred in cross-examination on the forgery allegation:

271. He appeared at one point under cross-examination, to extend the concept of fabrication or forgery to include a situation in which the Testator did not know what he was doing.⁸² He agreed, in the light of the video clip of the Testator signing the document that the signature was not a forgery.⁸³

272. As the Defendant submitted, forgery is not pleaded in the case. It had long been apparent that the Disputed Will was not, and could not, have been forged.

273. The forgery allegation was extraordinary as was the Claimant's expansion of the concept of forgery in cross-examination. It reflected a degree of antagonism towards Asha and the Defendant which, whatever its perceived justification, did not reflect well upon his credibility.

274. The Claimant was cross-examined on whether he was a successful businessman. While it appears that he had a chequered history in the businesses which he ran, I do not regard that history as central to the matters in issue in this case.⁸⁴ However, perceptions of his business history by other family members are likely to have informed the growth of family tensions between the Claimant and his wife on the one hand and the Defendant and Asha on the other.

275. On the question of his relationship with the Testator before 2017, the Claimant was referred in cross-examination to a message from the Testator on 1 August 2016 complaining of lack of communication even when the Testator was unwell. The Testator also complained of lack of communication between the Claimant and Asha.

276. The Claimant did not appear to dispute the substance of the Testator's complaint but said the Testator was a strong man and did not need calls from him.⁸⁵

277. There was evidence that the Testator had sent him a message emphasising the value of marital fidelity, the Testator having been married to Asha for more than 50 years. This seems to have been characterised by the Defendant as some kind of implied rebuke of the Claimant's conduct.⁸⁶ Of itself, it was not explicit enough to support an inference that it had any influence on the making of the Disputed Will.

278. There was cross-examination on the Claimant's allegation that the Defendant had effectively forced himself into a house in Emirates Hills which had been purchased as an investment for the Testator with a view to ultimate resale. He expressed the belief that the Defendant had forced the Testator to gift the property to him. He disagreed with the proposition that the property had always been purchased for the Defendant's family to occupy.

279. In the event, following his stroke in 2017, the Testator went to live with the Defendant and his family in the house and lived there until his death, a total of four years. The Claimant complained that the Defendant was selfish in refusing to allow the Testator to use the house as collateral for a loan.⁸⁷

280. As to the Testator's intentions before 2017, the Claimant maintained in cross-examination that he would take the Indian assets under the Testator's existing Will.⁸⁸ He never asked the Testator about his Will. On the other hand, in his First Witness Statement he had said that the Testator wanted to split the assets as evenly as possible. He accepted that the bequest of the Indian assets to him and the Dubai assets to the Defendant would not be an equal division.⁸⁹

281. The Claimant was cross-examined on his evidence about the extent of the Testator's recovery. He downplayed the Testator's physical recovery saying in cross-examination “…if you ask a son, I don't think it was significant. Medically it might be.”⁹⁰ As to the Testator's recovery of the ability to walk, the Claimant said that “medically it might be, but I have seen my father and the way he was. So for me, it wasn't enough of a recovery.”⁹¹

282. He was also cross-examined about his opportunities to observe his father. It was put to him that he was only in Dubai occasionally. He visited Dubai in 2017 on 30 days⁹²; in 2018 on 14 days⁹³; in 2019 on 7 days⁹⁴; and in 2020 on 12 days.⁹⁵ He did not visit Dubai at all in 2021.

283. It was put to him that his trips to Dubai were made for purposes other than visiting the Testator. In a WhatsApp exchange in November 2020⁹⁶ the Claimant asked for an apartment to stay in during his December 2020 visit to Dubai with four friends. He was asked if the purpose of the visit was “to basically enjoy the holiday with your friends?”. He answered “[a]nd to see my father”.⁹⁷

284. Asked whether his father's care was “excellent” as suggested by his counsel in Opening Submissions, the Claimant said “[p]hysically, yes. Emotionally probably not.”⁹⁸

285. In the Claimant's pleadings it was alleged that the Testator was under the overbearing pressure and control of the Defendant, Nidhi and Asha. The Claimant said “[t]hat's correct”.⁹⁹ Elements of his pleaded case were put to him, namely:

The Claimant said that all of those assertions were correct. He also said it was his belief as appeared from his Witness Statements, that the Defendant and Nidhi had procured the Testator to move into the Defendant's home with the intention of having full access and control over him in order to isolate him from the rest of his family. He said “That's my belief”. It was put to him that the Defendant and Nidhi had coerced the Testator into executing a Power of Attorney in 2017.

286. The following allegation, contained in his Witness Statement, was put to him:

He affirmed that that was his belief. Asked how his counsel could say, as he had, that the care they offered the Testator was “excellent”, he said “[t]here is a difference between medical care and doing whatever else they did, right?” He reasserted under cross-examination that the Testator was kept isolated.¹⁰²

287. The beliefs stated by the Claimant in cross-examination were not evidence of their correctness. They were evidence of his strong antagonism towards the Defendant, Nidhi and Asha. Given that perspective, observations he offered about observable aspects of the Testator's condition cannot be treated as reliable.

288. In Closing Submissions filed on behalf of the Claimant, it was said that his explanation for initially alleging that the Testator's signature on the Disputed Will was a forgery, made perfect sense. The signature was said to have looked nothing like the Testator's signature and appeared to be identical on each page of the four-page document.¹⁰³ Given that the video recording of the execution meeting was not obtained until May 2025, his suspicions were perfectly understandable. It was said his evidence should be accepted. As against that, the exchange quoted from his cross-examination suggests that he did not resile from an allegation of some form of fabrication of the signature.

289. To make these observations is not to say that the Claimant was deliberately lying. It is to say that the evidence suggests the probability of a distorted perception of reality, fuelled by a strong sense of grievance and entitlement. The allegation of forgery on Asha's part indicated the lengths to which his grievance and sense of entitlement took him.

290. There was cross-examination on the Claimant's allegedly bad behaviour and the extent to which the Testator knew of it. This covered his separation from his wife and their subsequent divorce¹⁰⁴, his use of alcohol¹⁰⁵, his use of illegal drugs¹⁰⁶, his urging Asha to cancel a proposed charitable donation and instead to pay off his home loan¹⁰⁷ and his alleged mismanagement of a property in Goa known as the ‘Picasso Property’.¹⁰⁸

291. In the event, I find that I cannot rely upon the Claimant's observations of the Testator as supportive of any conclusion about the Testator's testamentary incapacity, his susceptibility to undue influence or his knowledge of the extent and the nature of his estate.

292. There was considerable reference in the Closing Submissions to WhatsApp messages between family members following the Testator's stroke. The Claimant pointed to the absence of any such messages from the Testator after the stroke. The Defendant in his Closing Submissions pointed out that there was nothing sinister in that online silence when the Testator's hemiparesis and hemiplegia on the right side were considered. They would have made using a mobile phone difficult.

First Witness Statement of Kunal Gupta dated 17 October 2025

293. Kunal Gupta (“Kunal”) is the son of the Claimant and Gauri Gupta and grandson of the Testator. He said that although he and his family lived in Mumbai and the Testator and the Defendant's family lived in Dubai, they remained very close. The Testator prioritised family. As a matter of routine, the Claimant's family visited Dubai roughly every six months and stayed with the Testator. The Testator travelled to Mumbai almost monthly and stayed at the Claimant's home. He was present in person for birthdays and important occasions. Kunal claimed that his grandmother, Asha, disliked the Testator's frequent visits to Mumbai.

294. Kunal spoke of his positive relationship with the Testator. In 2017, during his gap year, the Testator helped him to secure an internship at Sotheby's in Miami and supported his move there. He visited during that period along with Gauri, his sister Pooja, the Testator's sister Nina, and her son Sachit Gupta. This, according to Kunal, was the last time he saw the Testator with full capacity. He described him as “sharp, engaged, and fully himself”.¹⁰⁹

295. Kunal referred to the stroke and the Testator's admission to the Saudi German Hospital in Dubai. The Claimant had stayed at the hospital throughout that period, saying “he could not go home to luxury while my father lay in this state”.¹¹⁰

296. Kunal saw the Testator in 2019 after his discharge from hospital. He described his improvement as “marginal at best”. He required total assistance for every aspect of daily life and if there was no one with him, he simply could not function. Even during meals he often choked after each bite, needing to be prompted to cough while someone held a bowl for him to spit into. In an effort to support his recovery, the Testator was taken to a rehabilitation centre in Austria. Kunal and his mother accompanied him and stayed at a nearby hotel. The Defendant's wife, Nidhi stayed within the centre as his primary attendant.

297. According to Kunal, they accompanied the Testator to his rehabilitation sessions and meals each day. Mobility exercises were physically exhausting for him. He tired quickly and often appeared distressed. He spoke only when prompted and typically in single words. He never initiated a conversation on his own. Exchanges were unusually along the lines of “look who is here – say hello to Kunal” to which he would respond, “hello”. He would be prompted to “ask him how he is” and would repeat “how are you?”. According to Kunal the Testator often struggled to recognise him or recall his name.¹¹¹

298. After the rehabilitation period in Austria, Kunal's interactions with the Testator were limited because of the Testator's fragile health and because of global travel restrictions during COVID-19. Most of their communication took place through phone or video calls facilitated by Asha, with whom Kunal was very close. All of his messages to the Testator had to be relayed through Asha. She would read them aloud to him and prompt him to respond. He was unable to hold a natural conversation. Their exchanges were brief and entirely prompted. According to Kunal there was no independent speech or engagement from the Testator. He would merely parrot what he was instructed to say.¹¹²

299. Between 23 April 2021 and 31 May 2021, Kunal decided to spend an extended period of time with the Testator to be close to him and observe his progress. He initially planned to visit for a month but eventually stayed for about 40 days. He lived in the Emirates Hills home with him, which allowed him to witness the Testator's daily routine, interactions and therapy sessions closely.

300. Kunal observed that the Testator's improvement was marginal at best. He required round-the-clock care with multiple nurses assisting him throughout the day. His mobility had improved only slightly. He could sometimes lift a spoon to eat, but even that required supervision. He still choked frequently while eating and had to be prompted to cough while somebody held a bowl for him. He was occasionally encouraged to take a few steps and walk with a stick during therapy, but that was rare and required support. He spent most of his time in a wheelchair and needed assistance for every daily task including bathing, eating and using the toilet. He often failed to recognise Kunal immediately and when asked who Kunal's mother or sister was would appear confused or would answer incorrectly before being reminded.¹¹³

301. The Testator never initiated conversations and responded only when prompted. When visitors came, such as friends or former business associates, he would sit quietly as a passive observer while someone else in the family greeted and hosted them. Even at those times, his participation was limited to parroting and prompted responses such as “say hello” or “how are you”.

302. According to Kunal, the pattern of dependency and passivity was consistent throughout his stay. Kunal offered an opinion on the Testator's capacity for complex thought, business discussions or drafting a will, which is not evidence of the fact and which I disregard.

303. The witness described a visit by Ms Ansy Ambrose in 2021 which he facilitated as she had not been close enough to the family to be invited to do so. When she entered the room, the Testator did not recognise her. He had to be prompted by someone saying “Look who is here, Ansy's come to see you”. After which he looked up slowly, opened one eye and extended his hand to greet her.¹¹⁴

304. During the 2021 stay, Kunal went on a family outing to Top Golf Dubai with his grandmother, Asha and the Defendant. At that time, according to Kunal, “our family had grown closer through shared time together”.¹¹⁵ Part way through the drive, the Defendant asked Kunal what he thought about “earning your inheritance versus receiving it by virtue of relation or blood”.¹¹⁶ Asha joined the conversation which continued along that line. Kunal regarded this as an implied suggestion that the Defendant's side of the family had “earned” the Testator's estate while the Claimant and his side of the family had merely been given opportunities through relationship or favour. The Defendant mentioned to Kunal that the Testator had made some investments in Miami in Kunal's name. The Testator, he said, had not done the same for the Defendant's own children Ashna and Karan.¹¹⁷

305. Kunal said he was uncertain how to interpret the conversation. His interpretation is a matter of opinion, which is not evidence of the fact.

306. Kunal then spoke of the Testator's death and funeral, which was held in December 2021. During the mourning period, which traditionally lasts 13 days, he and the Claimant felt it was important to have an open discussion with the family about the future after the Testator's passing. They decided it would be best to wait until the final ceremonies were complete.

307. When the Claimant raised the topic the Defendant referred or deferred all discussions to Asha. She refused to show the Claimant the Will saying in Hindi “If you see the will, you will repent”.¹¹⁸ Kunal received a long, angry voice note from her which translated to “when did you & your father become big enough to ask us for a will? Why didn't you ever ask for the will when we transferred the plot money or Miami apartments to you? Did you never question that that they're giving us everything and not even asking anyone else for anything?” (sic)¹¹⁹

308. The plot referred to in the voice note was a piece of land in Nebraska. After the Testator had passed away, it remained with his brother, Pawan Gupta. When the Defendant approached him about it, Pawan explained that the land had been promised to Kunal by the Testator and that he would only hand it over to Kunal.¹²⁰

309. Despite Asha's repeated statements that the Will “had nothing for us” and her warning that “if you see it, you will repent”, the family began discussing and drafting a Family Settlement Deed. A clause in the Deed stated that “everything I have, as in Asha Gupta, will go to Rohit Gupta and his family after my death.” Kunal asked Asha if she was aware of the meaning of that clause. She said “Yes, I wrote that”.¹²¹

310. Initially in their discussions, according to Kunal, there was no clarity whether a will existed and what it contained. The Claimant said he wanted matters handled fairly and transparently. He suggested an equal distribution that would give double to his brother's side of the family, 25% to the Defendant, 25% to Asha, 25% to the Nidhi as a goodwill gesture and 25% to the Claimant.

Cross-examination of Kunal Gupta

311. In cross-examination Kunal was referred to Asha's statement that she and the Testator had purchased four apartments for him with a total value of something like USD 3 million. He said he was not aware whether his grandfather had bought them for him or not but they were in his name. He said he was told they were bought because he was an American citizen just for ease of business. He was 17 at the time. He did not think he was holding them as trustee for the estate. He remembered being asked to sign documentation for each of the properties reflecting a total price of USD 4.4 million. He eventually sold them for around USD 2.5 million.¹²²

312. He was cross-examined about the times that he visited his grandfather. When he saw the Testator in March 2019 it had been two years since his last visit. It was put to him that exhaustion might have accounted for the Testator's ability to recall who he was. As he rightly said, that was a cognitive question not a physical one.¹²³

313. Kunal accepted that between April 2019 and April 2021, he had had only brief exchanges with the Testator and spoke through Asha. He nevertheless asserted that he was in a position to form a view about the Testator's condition. That seems to have been an inference based on the fact that the Testator was not speaking to him directly on the phone.

314. Asked about a statement by the Defendant's wife Nidhi, that the Testator was playing board games, he initially said he never observed that happening. However, it did emerge under further cross-examination that he remembered the Testator playing Ludo in the evenings after dinner on Sundays, but not independently. This was during the 40-day visit to Dubai where he stayed with the Defendant and Nidhi at the Emirates Hills villa. He said the Testator would need help to play. He asserted that that the Testator was “pretty much disengaged most times”.¹²⁴

315. The Claimant in Closing Submissions sought to characterise Kunal as answering questions directly and readily accepting certain points to him in cross-examination — including that he had only brief exchanges with the Testator between April 2017 and April 2019.

316. The Defendant pointed to the omission from Kunal's account of his visit to Dubai in 2021 of significant details of the Testator's day-to-day life. The Defendant referred to the evidence of the Testator's driver, Shiva Prasad Kaphle (referred to later in these Reasons), who spoke of taking the Testator to the doctor, the hospital, the centre, and the office accompanied by “Madam” and Kunal. The Defendant also pointed to the inconsistency between Kunal's statement at one point that he never observed the Testator playing board games and his testimony at another point that he remembered the Testator playing Ludo.

317. It was also submitted by the Defendant in Closing Submissions, that Kunal's stay at the home of the Defendant and his wife with the Testator and Asha was at odds with the Claimant's pleaded assertion that the Defendant's objective was to isolate the Testator from his family.

318. Overall, Kunal Gupta's evidence was of relatively episodic encounters with the Testator. Some of his testimony was opinion rather than observation and, as he accepted in cross-examination, he was not a neutral observer. I therefore regard his observations and related opinions about the Testator's condition over time as being of limited assistance in determining the issues in this case.

First Witness Statement of Amit Talwar dated 12 September 2025

319. Mr Talwar is a proprietor of Gold Coast Developers, a real estate company which he established in 2012. Previously he worked independently as a real estate consultant in India. He had met the Testator in or around 2011 at a social gathering held at Gurgaon. After that time, the Testator and Mr Talwar interacted with each other regularly because of their common shared interest in real estate.

320. In 2012, the Testator introduced Mr Talwar to the Claimant. He wanted Mr Talwar's assistance to set up a kiosk at the office at Global Foyer, Gurgaon for the Claimant's upcoming energy drink brand known as ‘Restless’.

321. From that time, the Testator and Mr Talwar spoke frequently over the phone. The Testator often called Mr Talwar to inquire about new real estate development projects in Delhi and Gurgaon. He requested him to visit him in Dubai. Mr Talwar went to Dubai three or four times during which the Testator arranged for his stay at a hotel and once in one of the apartments in KG Tower.

322. In or around 2014, the Testator indicated his interest in the purchase of property in Goa, India and asked Mr Talwar to find a suitable property. At the time Mr Talwar was developing a concept for a residential project in Goa. The Testator purchased a villa from him off the plan. The Testator expressed a desire to buy more properties in the project. He told Mr Talwar that although he really liked Goa property, he was unable to come down to Goa regularly. Since the Claimant lived in Mumbai, the Claimant would often come to Goa to manage and enjoy the Goa properties.

323. The Testator told Mr Talwar that he had executed a general power of attorney in or around July 2017 in favour of the Claimant to enable him to manage and deal with all of the Indian properties. On multiple occasions he expressed his intention and desire to give all his Indian properties to the Claimant. Mr Talwar said that sometime in the first week of September 2017 he received a call from the Testator informing him that he wanted to visit the best hospital in Delhi as he was not feeling well. On 11 September 2017, Mr Talwar accompanied the Testator to the Apollo Hospital in Delhi where he was admitted for a day for checkups and tests. He was discharged the next day, after which he stayed with his brother, Mr Rajender Gupta in Delhi until 16 September 2017.¹²⁵

324. Mr Talwar travelled to Dubai a few days after he learned of the Testator's to visit him. He remembered the Testator's condition being very critical. He was almost in a state of coma.¹²⁶

325. The next time that Mr Talwar saw the Testator after his stroke was in May 2019 when he was brought to Delhi by his family. The Claimant, who was aware of his relationship with the Testator, told him the family were bringing him to Delhi and asked him to come down if he wished to meet him. Mr Talwar went to the residence of the Testator's brother, Rajender, where he met the Testator. He was surrounded by all family members and two medical attendants who were assisting him to sit and stand. He remembered the Testator being unable to recognise him and being unable to communicate independently. He obeyed commands and was prompted heavily to say hello to Mr Talwar. After the stroke Mr Talwar did not have any independent conversations with the Testator. He recalled the Testator telling him of his intention and wishes to give the Claimant his Indian properties.¹²⁷

Cross-examination of Amit Talwar

326. There was only brief cross-examination of Mr Talwar. He agreed that his relationship with the Testator had been a business relationship. It was “only about real estate nothing else”. The Testator was dealing in properties and he used to ask Mr Talwar for his assistance. On the occasion in 2018 or 2019 that he visited the Testator in Delhi, the visit lasted for approximately 20 or 30 minutes. He spoke to the entire family for some time which consumed the 30 minutes. He tried to talk to the Testator but he said the Testator did not remember him exactly. The others tried to tell him that this was Amit. Mr Talwar sat for some time and then he left the house.¹²⁸

327. The Claimant contended that Amit Talwar was a disinterested witness who gave evidence clearly and honestly and was doing his best to assist the Court. The Defendant pointed out that Mr Talwar saw the Testator twice after his stroke, once in 2017 in the Saudi German Hospital “from a distance” and once in June 2019. He had visited for “approximately 20 to 30 minutes” on the latter occasion¹²⁹ during which time he also spoke to other family members.

328. I do not doubt that Mr Talwar was giving evidence according to his own recollection of events in 2017 and 2019. I find that brief interaction of limited assistance on the principal issues of capacity, knowledge and influence at the time that the Disputed Will was made.

First and Second Witness Statements of Ansy Ambrose dated 7 November 2024 and 11 September 2025

329. It is sufficient to refer to the Second Witness Statement of Ansy Ambros which replicated much of what was said in the First Witness Statement.

330. Ansy Ambrose described herself as a self-employed real estate professional. From January 2013 to April 2021 she was employed by an Indian real estate company, Lodha Group.

331. Ms Ambrose met the Testator as a client when she was working for Lodha in Dubai. Over many meetings he became more like a father-figure. They would meet almost every day for coffee as their offices were near each other.

332. They shared life stories. He shared everything about his business, family and friends during their interactions. They frequently discussed the Claimant. The Testator worried about him and his future. He used to tell Ms Ambrose that the Defendant had everything, meaning properties and the best cars, but that the younger brother, the Claimant, wanted nothing from him. Nevertheless, he wanted to give the Claimant everything. If not for him then at least for his wife and the future of his children. Both sons should be equal in every aspect. It was for that reason that he bought a Lodha World Towers property in Mumbai from Ms Ambrose worth approximately 14 million dirhams in the Claimant's name.

333. Ms Ambrose said that soon after the purchase the Testator had travelled to the United States to work and to meet his grandson, Kunal. He fell sick on that trip. In the first version of her Second Witness Statement, she said she met him only once in the four years up to his death, when the Claimant took her to meet him. She did not elaborate on that meeting in her Witness Statement. In an Amended Second Witness Statement she said that she had seen him twice after the stroke. She did not say anything about his condition after his stroke.

334. In late September or early October of 2017 Ms Ambrose received a call from the Defendant seeking a meeting at the Testator's office. The subject of the meeting was the cancellation of the World Towers property purchase. Ms Ambrose asked the Defendant why he was cancelling the transaction when the Testator had wanted to buy the property for the Claimant. She also asked where the Claimant was and hoped he knew and agreed with the cancellation. The Defendant replied that the Testator was unwell and was in no position to meet anyone. He told her that he was making decisions on the Testator's behalf and that his father would have wanted him to do this. He asked for Ms Ambrose's help to cancel the transaction and get the refund. She followed his instructions and cancelled the transaction and obtained the refund.

335. The witness expressed the belief that the Testator would not have wanted to cancel the transaction since he had been excited to buy the property for the Claimant. This of course, was speculation on her part about the state of mind of the Testator and is not evidence of the fact.

336. Ms Ambrose was not cross-examined on her testimony. I accept the substance of that testimony.

Witness Statement of Tripti Gupta dated 11 September 2025

337. Tripti Gupta was married to the late Rajender Kumar Gupta, younger brother of the Testator whom she used to address as ‘Bhai Saab’. This was her Second Witness Statement in the proceedings. She had submitted a First Witness Statement on 7 November 2024 in opposition to the Defendant's Application for Immediate Judgment and Strike Out. She repeated and relied upon the statements made in the First Witness Statement.

338. Tripti Gupta had known the Testator and his family for a very long time. Her husband and she shared a close family bond with the Testator. He was very fond of her husband and they shared a devoted and respectable relationship with each other as brothers.

339. Before his stroke in September 2017, the Testator frequently visited them whenever he was in Delhi and/or Gurgaon for his work and/or social commitments. He would also maintain regular communications with them via phone calls or messages on WhatsApp informing them about his health and taking updates about their wellbeing. They used to have heart-to-heart conversations about life and family and internal dynamics.

340. Tripti Gupta met the Testator on 16 September 2017, the day before his stroke, when he stayed with them at their residence in Gurgaon. Again, he spoke about his relationship with the Claimant and said that he loved the Claimant with all his heart.

341. The last time that her husband and she met with the Testator was in May 2019. He was brought to their house in Gurgaon by Asha, the Defendant and Nidhi. The Claimant and Gauri also came from Mumbai to see the Testator. Even then, the Testator was not in the condition to speak much or form his own sentences. He had to be prompted and required assistance for everything.

Cross-examination of Tripti Gupta

342. Tripti Gupta was cross-examined through an interpreter who became unavailable part way through the cross-examination. It was agreed that the Defendant's instructing solicitor, who was fluent in English and Hindi, could translate the balance of the cross-examination.

343. In relation to the Testator's visit to her home in Delhi in May 2019, Tripti Gupta said that he came on 3 June and returned on 7 June. She agreed that he had arrived after a night flight from Dubai and came to her home in the morning. She agreed he was sleepless and tired.

344. She was asked about the statements by the Defendant and Asha that the Testator had recognised her brother-in-law when he met him at her home. She said, however, that the Testator had already been told by her husband that her brother-in-law would be coming. When the doorbell rang her husband told the Testator that her brother-in-law had arrived. His name was Brij Mohan. When he came inside and the Testator was asked “who has come here”, he said “Brij Mohan has come”.¹³⁰

345. That was the extent of the cross-examination. Tripti Gupta was said by the Claimant to be a disinterested witness who gave evidence clearly and honestly and did her best to assist the Court. The Defendant made the point that she saw the Testator once after his stroke in May 2019 and pointed to the time of day at which the Testator arrived at her house and that it followed a night flight from Dubai and that the Testator was sleepless and tired.

346. In my opinion her evidence, while honestly given, has ultimately little direct bearing on the Testator's capacity, knowledge and susceptibility to undue influence at the time of the execution of the Disputed Will.

Second Witness Statement of Pawan Kumar Gupta dated 11 September 2025

347. Pawan Gupta is the younger brother of the Testator. The Claimant and the Defendant are his nephews. He described himself as a self-employed business owner and entrepreneur. He had filed a First Witness Statement on 7 November 2024 in opposition to the Defendant's Application for Immediate Judgment and Strike Out. He repeated and relied upon the statements made in that statement.

348. Pawan Gupta said that the Testator and he had a very close relationship before the stroke. They discussed and shared decisions about family matters and maintained open communication about all aspects of their personal lives. They spoke regularly via phone calls and visited each other in their homes many times. The Testator was close to and fond of him and his family. They took several vacations and trips together and during those trips they would always catch up on each other's lives, families and business affairs.

349. Their final trip before the Testator's death was in June 2017. They met in Miami for about four or five days. During that trip they discussed their lives, thoughts and current concerns. The Testator shared his thoughts about dividing assets between his two sons. He told Pawan that he desired and intended to divide his assets and wealth equally between both of them. He always mentioned his love for the Claimant and Gauri.

350. It was while in Miami in 2017, that the Testator suffered his first minor stroke. Following that first stroke his health was fragile and he suffered several mini strokes until the massive stroke which he suffered on 17 September. After that event, Pawan visited the Testator in hospital in Dubai where he had been admitted.

351. Pawan described the Testator, following the stroke, as “severely impaired and heavily dependent on others for his needs, including communicating with others.” He tried to wish him a happy birthday via WhatsApp on 4 September 2018, about one year after the stroke. He received a reply from another individual stating that his wishes would be conveyed to the Testator. He sent him a message by mobile phone on 1 January 2019 to wish him Happy New Year. He received a response from Nidhi stating that she would pass the message on.

352. During a visit to Dubai in February 2019, Pawan Gupta observed that the Testator was unable to communicate independently and unable to care for himself properly. He was unable to recognise Pawan and had to be prompted to communicate basic sentences with him. He required full assistance at home and did not independently carry out any activities.

353. Pawan sent messages to his brother for his birthday on 4 September 2019, and wishing him a happy anniversary on 7 December 2019. He did not receive a response to either message. He attempted to speak to him on numerous occasions but from the date of the stroke until his death, the Testator never contacted him personally on his own. His virtual communication with Pawan was via Facetime calls, always made with other family members present who would have to prompt him to say hello.

Cross-examination of Pawan Gupta

354. Pawan was cross-examined on his statement that his brother never regained the capacity to make complex decisions. One of the reasons given for that was that he was not able to make a phone call to Pawan independently.

355. It was put to him that the use of a mobile phone would have been difficult for the Testator because he was paralysed on his right hand. The answer to that proposition was “right”.¹³¹

356. He agreed also that he did not receive replies to his WhatsApp messages directly from the Testator because Nidhi would respond on his behalf.

357. As to the visit to Dubai in February 2019 and the Testator's response to him, he accepted that the Testator, a strong and proud man who had suddenly become frail and incapacitated, might well feel guarded or reserved.

358. As to Nidhi's Witness Statement that the Testator did in fact recognise Pawan on his visit to Dubai in February 2019, he maintained that there was no recognition at all. He asserted that Nidhi was lying because his brother never recognised him on that visit.¹³²

359. Pawan's testimony included statements of his beliefs about his brother's mental capacity to make complex decisions, including making a new will and/or revoking a previous will. He also expressed opinions about the Testator's desires with respect to the Claimant's inheritance. The opinions are not evidence. The relevant evidence is that of observations and interactions with the Testator, including things that the Testator said.

360. The Claimant in Closing Submissions sought to characterise Pawan as independent on the basis that he would not be affected by the outcome of these proceedings. He was said to be firm and convincing in maintaining that the Testator had failed to recognise him during his visit to Dubai in February 2019.

361. The Defendant referred to Pawan's acceptance in cross-examination that it would have been difficult for the Testator to use a mobile phone given his paralysis and that a strong and proud man, like the Testator, could have felt guarded or reserved as a result of his disability.

362. The testimony of Pawan may be accepted so far as it relates to the Testator's limited communication and the fact that he had ongoing support from others in February 2019. The evidence of apparent non-recognition is equivocal given the caveat which Mr Gupta accepted. I also accept that the Testator told his brother that he intended to divide his assets equally between his two sons.

Witness Statement of Sachit Gupta dated 11 November 2024

363. In his short Witness Statement, Sachit Gupta identified himself as a nephew of the Testator and a cousin to the Claimant and the Defendant. He said he visited the Testator in June 2019 at the Shirley Ryan AbiitiyLab (Chicago) when “he was not in a condition to speak or form his own sentences”. He said he had also shared photos and videos taken from the same visit with the Claimant.¹³³ The Defendant pointed out that beyond that he said nothing about the visit, not even the time of day or its duration.

Cross-examination of Sachit Gupta

364. Sachit Gupta was not cross-examined. The evidence of his brief encounter with the Testator is of little assistance in the issues for determination in this case.

First Witness Statement of Gauri Gupta dated 17 October 2025

365. Gauri Nitin Gupta is the wife of the Claimant. She exhibited to her statement copy documents and a series of video files. Gauri began the substance of her statement with a description of the relationship between the Testator and herself and her husband. She said that the Testator loved her and the Defendant's wife, Nidhi.

366. Gauri and the Claimant had moved to Mumbai in or around 2000 as the Claimant wanted to pursue his own business ventures there. He started the SYKZ Gym in India. She described the Testator's regular visits to them in India, which occurred sometimes even on a monthly basis. On most of the occasions that he came to Delhi for his own real estate investments, he would travel to Mumbai to see them as well. He never missed visiting them personally on their birthdays. She exhibited photographs showing herself and the Claimant celebrating his 40^th birthday in 2013 and another photo from another birthday party in India for the Claimant. Gauri claimed to have enjoyed a close relationship with the Testator. He called her ‘Princess’ and sent her a text message almost every morning saying “Good morning Princess”. She exhibited to her statement text messages which had been exchanged with the Testator when he was in New Delhi on 9 September 2017, less than two weeks before the stroke.

367. Gauri said that she and the Claimant had talked about moving to Dubai to be closer to the Testator. However, after the stroke things changed quite quickly between the Claimant and her on the one hand and the rest of the family. She said that the Defendant and Asha pushed them out of the Testator's life. In the event they decided to stay in India and make time to visit the Testator instead.

368. After the Testator was discharged from the Saudi German Hospital in November 2017, Gauri went to Dubai for a week to be with him again. Though his condition was stable he could barely speak. She and the Claimant decided in mid-December 2017 to go to Dubai to see the Testator. They had booked their flights but Asha sent a voice note to the Claimant saying they should postpone the visit by a month or two as the Testator was “getting stressed seeing Nitin cry” and “could not recognize who comes and goes”.¹³⁴ They decided to cancel their visit. They saw the Testator again in January 2018 and found him unchanged and still suffering significantly from the stroke.

369. In March 2018, Gauri again visited the Testator in Dubai. She recalled an incident on 19 March 2018 when the Testator's speech therapist asked him “who is she? Who is your daughter-in-law?” and he replied saying her name as “Gayatri” who is in fact her sister.¹³⁵ She said the Testator knew her very well and would never have made such an error before the stroke. She exhibited a video of the incident. She also took him to another therapy session accompanied by his nurse, Anil. He would not do anything without assistance as demonstrated by a video that she recorded on that date.

370. Between the 28 May and 5 June 2018 Gauri again visited the Testator in Dubai. He was still struggling significantly with basic needs and communication. Another video was exhibited to the Statement. She recorded a number of short videos of the Testator during her visits to him.

371. Gauri's next visit to Dubai was to celebrate the Testator's birthday on 5 September 2018. Another video was exhibited to the Statement showing her reading the Claimant's birthday card to the Testator. She exhibited a further video dated 6 September 2018 where she said she was trying to wake him up by singing one of his favourite songs. Another video dated 9 September 2018 was taken at the therapy centre. In the video the Testator was prompted to say “hello” and to engage with the other patient at the therapy centre.

372. During this trip Gauri said she had “a couple of memorable interactions with the Testator's wife and the Defendant”. Asha said that she (Gauri) had been the Testator's daughter but now she should know that she was the daughter-in-law and not the daughter.¹³⁶ Asha suggested that Gauri should not visit frequently. Asha said that whenever Gauri visited the Testator would cry and become difficult to manage.

373. On 7 October 2018 Mr Sanjay Choksi visited the Claimant and Gauri at their home. They were having difficulty communicating with Asha and the Defendant. The Claimant had asked to speak to Sanjay as another person who had access to the Testator and to information about his affairs. At that time Sanjay stated that all of the Testator's assets in India were the Claimant's.

374. Gauri contested a statement by Sanjay in his Second Witness Statement of 8 September 2025 that he did not know the Claimant very well. She said that on most occasions on which the Testator visited them in Mumbai, they would go to breakfast or lunch together with Sanjay Choksi if he was also in Mumbai. She claimed that Sanjay and she were close and he used to call her “Princess”.

375. Between 28 and 31 October 2018 the Claimant and Gauri visited the Testator in Dubai again. They took him to a coffee shop. According to Gauri the Testator enjoyed the Claimant's company on this occasion. She exhibited a video of the Claimant and the Testator hugging while the Testator was sat in the car. Another video showed them beside one another at a lunch during the trip.

376. Gauri said that between 25 March and 1 April 2019 she and her son, Kunal, accompanied the Testator on a residential visit to the rehabilitation centre in Austria. The Defendant's wife, Nidhi, also came on the trip. The Claimant had to convince Asha to let Gauri and Kunal join the trip. She eventually gave permission. They stayed at a nearby hotel and Nidhi stayed at the rehabilitation centre with the Testator. Gauri exhibited to her statement a video dated 31 March 2019 of Kunal taking the Testator to therapy. There were also three photographs of Kunal helping the Testator to put on his socks and with his therapy. She said that Kunal and she went each day to the rehabilitation centre to see the Testator and returned to the hotel in the evening. The Testator was still not able to communicate during this time unless prompted and would only repeat short monosyllables back to Gauri. She said that the Testator was not able to eat on his own. He would try to eat with his left hand because he was paralysed on the right side. He could not feed himself without making a mess.

377. Gauri went on to speak of a visit to the Testator in Delhi in June 2019. Asha and the Defendant had brought the Testator to India. He was much the same as he had been during the Austrian trip. She exhibited a photograph of the Defendant sitting on the floor next to the Testator during that trip. He still needed assistance to eat and to make sure that he was not going to choke on his food. Simoth went on the trip to care for and provide the medical assistance that he needed. The Testator could not walk on his own although he was trying. He would try to take a couple of steps which they would carefully monitor in case he fell.

378. Another video dated 5 June 2019 was exhibited, of the Claimant interacting with the Testator during the visit. The video shows he was barely able to communicate at the time. Although the Testator said “Hi Nitin” at the beginning of the visit he was unable to respond to any other questions.¹³⁷

379. Gauri said that following that visit it was difficult for her to see the Testator again because of his fragile health and the global travel restrictions imposed during the COVID-19 pandemic. Kunal was the only member of the family who could enter Dubai during the COVID restrictions as he had US citizenship, which meant he was subject to less onerous restrictions than those with Indian passports only.

380. Gauri complained that it was difficult to receive updates on the Testator's health from the Defendant and Asha.

Cross-examination of Gauri Gupta

381. In cross-examination, Gauri contradicted the Claimant's statement that they were divorced. She said they were not.¹³⁸ They had been separated since 2019.¹³⁹

382. Referring to the Austrian admission in 2019, she agreed that the Testator arrived on 26 February and left on 7 April and that she arrived on 25 March and left on 1 April. She stayed in a nearby hotel and travelled from the hotel to the facility where the Testator was being treated.¹⁴⁰ She was referred to the 10 videos of the Testator which she had provided in her Witness Statement and agreed that the longest was about two minutes long — the first being taken after the stroke, the tenth dated 5 June 2019. Eight of the ten videos had been taken before 2019. There were none after that date. This was partly because of COVID travel restrictions.¹⁴¹ She agreed that she had seen him on his visit to Delhi on 3 June. She agreed also that it would have been foolish for anyone to encourage her during the COVID restriction period to travel to Dubai to see the Testator.¹⁴²

383. The Claimant characterised her testimony as comprising short, straight-forward answers without embellishment. In cross-examination she had “firmly and convincingly refused to accept that [the Testator] would have been reserved and uncomfortable around others in his paralysed state”. She had said “Yes, but we are his children. We are not the extended family”.¹⁴³

384. The Defendant in Closing Submissions endeavoured to make a point of the fact that Gauri and along with Kunal and Pooja Gupta had only filed their Witness Statements by way of reply to the Defendant's Witness Statements. The Witness Statements were said to offer little in the way of specific detail about the Testator's condition or contradiction of the specifics of the testimony given in the Defendant's Witness Statements.

385. Her observations of the Testator's limited communication in 2018 and mobility challenges in June 2019 may be accepted. Their accuracy may be qualified by the adversarial setting in which, as the wife of the Claimant, she had real interest. There was also a degree of tension between her and the Defendant and Asha. As with other witnesses, I put to one side her opinion evidence about the Testator's capacities.

Witness Statement of Pooja Gupta dated 17 October 2025

386. Pooja Gupta is the daughter and youngest child of the Claimant and Gauri. She spoke of her relationship with the Testator from childhood on. She had early and happy memories from Dubai and of going with him every morning to his office whenever she visited. He travelled almost monthly to see her parents at their home in Mumbai. She stated that Gauri shared a close relationship with the Testator. She often accompanied Gauri and the Testator on trips to coffees, meetings and errands. She spoke of the contrast between the Testator as the man she had known and the man she last saw in 2021 just days before he died. She had been about 13 years of age at the time that he suffered his stroke in 2017. At that time her father stayed at the hospital with the Testator day and night. She remembered him refusing to come home because he did not want to leave the Testator alone.

387. Pooja visited the Testator after his stroke in the period from 2017 to 2021 whenever possible, although not as often as she wanted to because of her board exams and COVID-19 travel restrictions.

388. On each of her visits the Testator's condition seemed to her to be the same. His physical and cognitive condition never truly improved. He was dependent on others for nearly everything. Whenever she arrived, her Aunt Nidhi would prompt him to greet her. She would say, “Say hi to Pooja”. He would then look at her slowly and repeat, “Hi Pooja”. Nidhi would continue, “Ask Pooja how she is”. Only after repeated prompting would he say, “How are you?”¹⁴⁴

389. Pooja claimed that these exchanges were identical on every occasion that she visited. The Testator never initiated a conversation on his own. What stood out to her was the lack of spontaneity or recognition. Often when she entered the room he would not seem to know who she was until someone reminded him.

390. In January 2018, on one of her trips, the Testator did not recognise her at first. The speech therapist visiting at the time asked him several times “Who's come?”. After a long silence he finally said “Ashna”, confusing Pooja with her cousin. She exhibited a video of the incident.¹⁴⁵

391. Pooja then spoke of travelling to Dubai between 30 November and 6 December 2021, three days before the Testator's passing. It was her last time with him. The night before she left, her uncle, the Defendant and her Aunt Nidhi, told her to hug the Testator before he went to sleep since she would be flying out early the next morning. She said when the nurse was transferring him from his dining chair to the wheelchair he briefly stood up so she could hug him. She could not bring herself to do it because he looked so fragile and uncomfortable and she was terrified that she might hurt him.

392. Pooja described one evening during that visit when the nurse was taking him on a nightly stroll, how she accompanied them and played trending Hindi songs on her phone. She asked if he had heard them. He shook his head. When she asked if he liked them, he smiled faintly and nodded yes.

393. The Testator's physiotherapy sessions were held in a theatre room on the second floor. One day she went to check on him and found him sitting alone, sitting blankly at the ground. She asked if he was okay. He nodded yes. She said she would call the nurse to come to get him but he did not say a word back.

394. Pooja offered her own reflections on the Testator's condition but these were opinion statements. She repeated that his condition remained mostly the same over the years and all her visits. He could not recognise people consistently, he could not initiate speech and could not express his own choices. Every word he spoke was prompted or repeated after someone else.

395. This evidence is admissible to the extent that it is a summary of the witness' own experience of the Testator during these visits. The conclusions to be drawn from those observations depend upon all of the evidence.

Cross-examination of Pooja Gupta

396. Although Pooja said in her Witness Statement that she had seen the Testator three times after his stroke, she claimed in cross-examination that she had seen him more times than this but she was not sure how many.¹⁴⁶ The first time she saw him was in the Saudi German Hospital in September 2017, a second time in January 2018 and the third time on her visit to Dubai between 30 November 2021 and 6 December 2021. She was 17 years old at the time of her last visit. She said in cross-examination that every time she was in Dubai she was in the house where the Testator was residing. Asked by the Court whether she had seen the Testator at any other time during 2021, she said she did not remember dates but said she had met him on more than the two occasions she had mentioned in her statement.

397. Pooja was said by the Claimant to be honest and balanced with the Court in acknowledging that she could not remember all the times she had seen the Testator post-stroke and had only included in her Witness Statement times that she thought most relevant.

398. The Defendant in Closing Submissions, argued that, as with Kunal, in light of how little Pooja saw of the Testator after his stroke, her visit to Dubai in November 2021 was an unusual experience for both her and the Testator. Compounding this was the fact that at the time of the visit she would have been 16 or 17 years old. Pooja also explained that while she visited the Testator he had “his own routine”.¹⁴⁷

399. I find Pooja Gupta's evidence to be of little assistance in relation to the capacities of the Testator at the time of the execution of the Disputed Will.

The Defendant's Witnesses

400. A number of Witness Statements were filed on behalf of the Defendant. They are summarised as follows:

First Witness Statement of the Defendant dated 12 September 2025

401. Rohit Gupta is the Defendant. He is the Chief Executive Officer of KG International. He is the eldest son of the Testator having been born on 15 November 1971. He recited a history of kidney disease which required him to have a kidney transplant in 1992. His mother, Asha, was the donor. Because of his health issues, he studied in the same class and school as the Claimant. They both later went to university together in the United States.

402. The Testator moved to Dubai in 1988 seeking a better future. The Defendant graduated in December 1994 and moved to Dubai to support the Testator in his business. The Claimant, who had graduated in December 1993, was also working for the business. The two brothers were married in the same year, 1995.

403. In or around 1996, the Claimant announced that he did not want to be part of KG International. The Testator and his wife supported him financially.

404. The Defendant said that the years between 1997 and 1999 were challenging times for his family. The Testator underwent open heart surgery. About the same time, the Asian currency market collapsed. This impacted the business.

405. In the early 2000s, the family fortunes improved. KG International began to grow rapidly and began to position itself as the largest distributor of ball bearings in the world.

406. The Testator began to invest in the Dubai real estate market in 2004. He appointed the Defendant as Chief Executive Officer of KG International and turned his attention to real estate. He used the income from the business to fund real estate investments in Dubai and India.

407. The Defendant said that he and the Testator started to use powers of attorney very often from around 2000. It was common practice for them to execute powers of attorney in favour of each other. This was driven by the Defendant's life with health issues and the Testator's history of heart trouble.

408. The Defendant described his relationship with the Testator. He spoke of the Testator's integrity and ethical behaviour, and his inspiration as a father and family man. The Defendant nevertheless regarded the Testator as somewhat naïve. He felt that people would sometimes take advantage of his good nature. He referred to numerous examples in the Testator's life where people took advantage of his trust and goodness. He described the Testator as a risktaker in business and himself as more conservative.

409. In 2016, one of KG's major suppliers ended a long association with the company. The Defendant's parents were concerned. The Defendant believed that a joint venture strategy made sense to expand the business. It did not turn out. The Testator was disappointed in him. During the Defendant's career at KG this was probably his biggest setback. He disagreed with the Testator about borrowing against personal residential assets. These were the only occasions that he remembered differences with the Testator. Their relationship was strong and unstrained. They continued to work together effectively.

410. The Defendant then described the Testator's relationship with the Claimant before 2017. Between 2015 and 2016, the Testator expressed concerns about the Claimant and the way he was leading his business and his personal life. At that time — between 2015 and 2016 — the Claimant had started and wound down a variety of businesses, all of which had been funded by their parents.

411. According to the Defendant, the Testator said that he felt the Claimant was not adhering to family values. He was unhappy about the Claimant's frequent solo Bangkok trips. The Testator expressed concern that the Claimant was not managing his finances well. Despite many years of the Testator's support of the Claimant's businesses, the Claimant was still not financially independent.

412. The Defendant described the years 2016 and 2017 as stressful for the Testator. He had invested in luxury off-plan properties across the city of Dubai before 2015, but from late in that year the Dubai real estate market started to slow. Valuations were down by between 30% and 50% and it was difficult to sell. In the conversation he had with the Testator in January 2017, the Testator said he wanted to consolidate some properties and had engaged with known developers to help him out. He had recently invested USD 3-4 million in Miami for the Claimant's family. He was worried about his cashflow situation and told the Defendant that he was concerned that the Claimant would again ask him for money for which he was financially unprepared.

413. The Defendant said that at the time of the Testator's stroke in September 2017, a doctor had told him that the damage caused by it would require a lot of rehabilitation. Two or three weeks passed before the Testator was out of danger and stable. During the first few weeks in the hospital, the Defendant's son, Karan, handled his care and stayed with him overnight. When the Testator left ICU, Nidhi took over. The Claimant also stayed in hospital throughout the Testator's stay but, according to the Defendant, “was never really involved in Dad's care”.

414. According to the Defendant, the Testator was like God to his wife and himself, and he resolved to do everything possible for his betterment.

415. The Defendant's mother Asha had a broad understanding of the Testator's real estate business but knowing that she could not handle his affairs alone asked the Defendant to take stock of the business. He started to do this two or three weeks after the stroke. The first thing he did was to ask the Chief Financial Officer Dinesh Giani to write to all concerned parties about the Testator's situation and seek their support.

416. The Defendant did not remember who introduced him to Dr Deepak Arjundas, but learned he was an experienced neurologist and stroke specialist. He spoke to him about the Testator's health care. He described Dr Arjundas' visits to the Testator in hospital and in Dubai. He described Dr Arjundas as a “valuable source of information about [the Testator's] rehabilitation and treatment.”¹⁴⁸

417. The Defendant then referred to the Claimant's conduct in 2017 and 2018. While Asha told her sons that the focus of their efforts should be to preserve the value of the Testator's assets, the Claimant said that he wanted to have all of the Testator's Indian assets transferred to him immediately. He also said he was not going to honour a donation promised by the Testator to Maharaja Agrasen Hospital.

418. In the event, Asha told the Defendant that she wanted to have a Power of Attorney over the Indian assets and that any other Powers of Attorney should be revoked. The Defendant had a new Power of Attorney prepared which he read out to his parents. He said that the Testator nodded in agreement and confirmed that he understood. The Power of Attorney was executed in the presence of officials from the Consulate of India. He regarded Asha's action in respect of the Power of Attorney as a response to the Claimant's conduct.

419. After the Claimant's Power of Attorney over the Testator's Indian account was revoked, the Claimant started demanding cash from Asha.

420. According to the Defendant, the Claimant took all the liquid cash that the Testator had put aside to meet his commitments in India. His demands increased and assets were sold to take care of him. In around October 2020, the Claimant made a demand and Asha asked the Defendant to take a loan of INR 40 million to support him. The Defendant said he told his parents that what was happening was wrong and that it was unfair for them to keep burdening him. Nevertheless, he took out the loan to support the Claimant and his parents.

421. The Defendant asserted that the Claimant's demands were discussed with the Testator and Asha. Initially the Testator agreed that the Claimant should be given the money he sought. By the end of 2018, his mind had changed. Late in 2018 his parents were discussing the burden that the cash payments had caused and how to manage them. Asha asked the Testator if he thought that they should again transfer money to Nitin and his response was “mat do”, which means “don't give”.

422. According to the Defendant, based on discussions with his parents around this time, he understood INR 260 million was paid to the Claimant between the Testator's stroke and his death.

423. The Defendant referred to a visit to Delhi with the Testator where they were surprised to see him recognise very old and distant relations such as Tripti Gupta who even the Defendant did not recognise. He seemed to enjoy seeing his relatives after a long time.

424. Notwithstanding his stroke, the Testator had continued to go to regular site meetings in connection with the development of a home which he had purchased for Asha and himself in 2014. He arranged meetings with an interior designer who was a friend and approved of colour schemes and the layout from options that the Defendant had shortlisted for him. He wanted a high-end, rather than normal, design for the property.

425. In January 2021, the Defendant told the Testator that his wife Nidhi wanted to change her car. He described the Testator as “an expert on cars”. The Testator told him to get a Lamborghini Urus. The Defendant accepted that suggestion and said that the Testator came with Nidhi and himself to pick up the vehicle.

426. On the issue of the 2021 DIFC Will, the Defendant said that the Testator did sometimes talk about what he wanted to happen after his death. Towards the end of 2020 he was having lunch with the Testator at the office. The Testator reached out, held his hand and said “please take care of Mom always”. He did not elaborate.

427. In November 2020, his parents had a conversation with him about the Claimant's actions and about their concern over his financial demands over two or three years, with little practical or emotional support from his side of the family. The Defendant could not remember whether it was the Testator or Asha who said this but he recalled that the Testator was both present at, and a participant in, the conversation and clearly said that what the Claimant was doing was wrong.

428. At breakfast one day with both parents, the Defendant was asked by Asha to prepare wills for herself and the Testator. All assets should go to each other in case anything were to happen and the Defendant was to be named as substitute beneficiary in case anything were to happen to both of them. The rationale, which Asha explained, was that the Defendant could look after the estate without having to rely on his own assets. While appreciating at the time that executing a will was a big decision, he did not think too much of it. The instructions seemed fair and reasonable and the Testator “nodded that he was ok with the instructions”.¹⁴⁹ They aligned with what his parents had told him about their wishes previously. He understood why his parents should feel that it was right to change their wills. He had no doubts as to the Testator's capacity to make a new will. The Defendant then asked his Chief Financial Officer to engage a trusted advisor, Dixit Jain, to draft the wills and check them before sharing them with his parents by December 2020. During this time he said Dinesh Giani had sent him a draft which wrongly made him a 100% beneficiary of both wills, but he had this promptly corrected.

429. The Defendant described what he called a routine which had emerged during the Testator's recovery from his stroke in the management of major transactions. The standard procedure involved him or one of his team members discussing a proposed transaction with the Testator and Asha, either at home or in the office. Several days were allowed to elapse before the Defendant would confirm that the Testator wanted to proceed with the transaction. The Testator had executed each transaction either at home or in the office. A notary was generally present to ensure he was signing independently. He did refuse some transactions as he saw fit. One example offered by the Defendant, was that in 2020 when they had some very low offers for an apartment the Testator owned in Marina View Towers, he refused an offer notwithstanding the Defendant's suggestion that it might help them to raise some liquidity. There were few such examples.

430. According to the Defendant he followed that standard procedure in the case of the 2021 DIFC Will. He gave the Testator several days between the date on which he had first read the draft Will to him and made arrangements for execution because he knew it was a big decision. He wanted the Testator to have time to think about it. He asked his parents two or three times during January 2021 to confirm that they wanted to proceed in case either of them had had a change of heart. They did not. He said he asked his Chief Financial Officer to ensure that the DIFC's protocol for registering a will was followed completely and asked him to manage the registration process.

431. Turning to what followed the death of the Testator on 9 December 2021, the Defendant went into mourning and arranged for commemorate religious rituals. The Defendant said that on 21 or 22 December, the Claimant approached him and began talking about transferring the Testator's Indian assets. The Defendant did not believe that it was the appropriate time to discuss those subjects. He told the Claimant that it was best to discuss the matter with Asha because it was her decision. The Claimant's relationship with Asha was not good, but nevertheless he asked her to transfer all of the Indian assets to him. He began to talk openly about what portion of the estate everyone was entitled to. According to the Defendant, his Uncle Pawan Gupta and his wife were in the room when this discussion occurred and they witnessed the whole thing.¹⁵⁰

432. In the event, according to the Defendant, Asha and the Claimant reached an agreement in which the Claimant would receive all of the Indian assets. Asha asked the Defendant to draw up an agreement. Karan and Nidhi were also in the room and Karan supported him with the documentation.

433. The Defendant had a ‘Deed of Family Settlement’ drafted with the help of Karan and Dinesh. It was presented to the Claimant who, however, demanded more properties saying that the liabilities associated with the Indian estate ought to be removed. In the event, Asha, although unhappy about this, relented and agreed. She asked the Defendant to revise the Deed. She apparently told the Claimant that his greed and poor attitude had destroyed all his relationships and she just wanted to live peacefully so that no-one could go after her anymore. Everybody signed except for Gauri who had returned to India. The following day Asha told the Claimant that she insisted that Gauri sign. The Claimant replied by saying he wanted more or else he would “go legal”.

434. The Defendant referred to steps taken as at the date of his Witness Statement to obtain witness evidence relevant to these proceedings. This involved correspondence with the General Manager of the Dubai Courts for permission for the Notaries who had attended the Testator to attest certain Powers of Attorney to give witness evidence in the proceedings. He also asked the Consulate General of India for permission for certain individuals who attested Powers of Attorney issued by the Testator to give witness evidence. As at the date of his Witness Statement, 12 September 2025, he was unsuccessful in those endeavours.

Second Witness Statement of the Defendant dated 10 October 2025

435. In a Second Witness Statement the Defendant responded to the Witness Statements of the Claimant, Pawan Gupta, Tripti Gupta, Ansy Ambrose and Amit Talwar. In response to the Claimant's Witness Statement he took issue with evidence about the relationship between himself and the Testator. The evidence from the Claimant to which the Defendant was responding in this regard is of little weight when it comes to the determination of the issues in this case.

436. Then the Defendant responded to an assertion by the Claimant that a friend of his mother had spoken of the Testator struggling to recognise people, including her. This second-hand opinion evidence would be given no weight and is disregarded.

437. Pawan Gupta in his Second Witness Statement had asserted that the Testator suffered his first minor stroke in Miami and then several mini strokes until his massive stroke. The Defendant said that the so-called ‘minor stroke’ was a transient ischemic attack and not a stroke. The question whether or not the Testator suffered any “mini strokes” is marginal to the assessment of his condition at the time that the 2021 DIFC Will was made.

438. The Defendant also took issue with Pawan Gupta's statement that the Testator was unable to communicate independently and unable to recognise him and had to be prompted to communicate basic sentences with him when he visited in February 2019. The Defendant was present at Pawan's visit and did not recall the Testator failing to recognise him. He pointed out that the Testator had recognised much more distant relations and friends around the same time as that visit. Further, he asserted that the Testator had made huge strides between the visits and the time of his death.

439. The Defendant then referred to Tripti Gupta's Second Witness Statement, recounting a meeting with the Testator in India in May 2019 and stating that he was not in the condition to speak much or form his own sentences and had to be prompted and required assistance for everything.

440. According to the Defendant, he was present at that meeting and his recollection differed from hers in several respects. It was at that meeting that the Testator recognised Tripti Gupta's brother.

441. As to Ansy Ambrose's Second Witness Statement, the Defendant said he did not know about her existence at any point prior to the Testator's stroke. He was concerned about pending transactions that might exacerbate his father's existing liabilities and for that reason called Ansy to arrange a meeting. He did meet with her in October 2017 and was grateful for her support at this time. He was unaware of the closeness of their relationship until reading about it in her Witness Statement.

442. Amit Talwar in his First Witness Statement said of a meeting with the Testator in May 2019 that he was “unable to recognise” him and that he was “simply just obeying commands and was prompted heavily to say hello” to him. The Defendant said he recalled that meeting but that there was nothing noteworthy in terms of any interaction between Mr Talwar and the Testator. He just came briefly to see the Testator. As to the Second Witness Statement of Amit Talwar, the Defendant asserted the importance of understanding that the Testator was a proud and strong man and that it was tough for him to see friends and family he was not close or comfortable with in his paralysed state. Sometimes he became downcast when meeting acquaintances who had not seen him since his stroke. As a result, the Defendant sometimes had to “push him to greet people”.

Cross-examination of the Defendant

443. The evidence of the Defendant about the Testator's condition from time to time has to be regarded with caution. There were occasions, elicited in cross-examination, in which it appeared he had had no difficulty in representing the Testator's condition as poor — a representation which he justified as suiting particular purposes. An example was an emailed letter dated 4 December 2017 to Emaar Properties PJSC (“Emaar”) in Dubai, a company of whom he said the Testator had been a client with an investment portfolio of about AED 250 million. In the letter the Defendant said his father had been admitted in the early hours of 17 September 2017 at the Saudi German Hospital, Dubai following a massive stroke. He described his father's current condition as including paralysis of the right side of his body and his left eye had no vision. His health was very critical and would need the next 10 to 12 months, and perhaps more, to improve if all went as planned. The Defendant said “the extent of recovery is still doubtful / unknown”¹⁵¹. At the time of writing the Testator continued to be fed by tube and could not speak. The letter appeared to be asking Emaar for some form of indulgence in relation to the Testator's commitments. He attached a copy of a medical report from the Saudi German Hospital in Dubai dated 25 October 2017.

444. The Defendant said that the email was not completely accurate. It was a maneuver “to get maximum relief from Emaar”. He claimed to have embellished the position in his communication with Emaar. He asserted that he knew his father's condition. The email was not a reflection of that condition at that point in time. He said of the Testator “[h]e was able to make his choices”.

445. The medical report attached to the email and the email itself were clear enough. I do not accept the Defendant's contention that at the time the email was sent he believed that the Testator was able to make his choices.

446. There was also cross-examination concerning two Indian Powers of Attorney, executed by the Testator in favour of the Defendant and his mother respectively on 17 or 19 December 2017. The Testator's thumb print had been applied to the two documents.

447. In his evidence in his witness statements, the Defendant had spoken only of a Power of Attorney in favour of his mother. In cross-examination he eventually recalled the Power of Attorney in favour of himself, which was clearly made at the same time. He claimed it was never used. In his Witness Statement which referred only to one Power of Attorney he said “I read this out to Dad and Mom. Dad nodded in agreement and confirmed that he had understood.”

448. It was put to him that on 17 or 19 December 2017, whichever was the actual date of the documents, the Testator could not possibly have understood a three page power of attorney even if it had been read out to him word for word. The Defendant replied that his father had a clear understanding of whom he was giving powers to.

449. I do not consider this testimony as evidence upon which I can rely as indicative of the cognitive state of the Testator in December 2017. In cross-examination the Defendant's mother Asha said that she could not say whether at the time her husband understood the legal documents.¹⁵²

450. The Claimant submitted that the purported execution of the Powers of Attorney shed no light on the Testator's capacity at the time of the Disputed Will. I accept that submission.

451. On 16 January 2018, Asma Noor sent the Defendant a draft email to go from him to Mr Jeevan D'Mello at Emaar seeking an update on their request to consolidate the property portfolio of the Testator. The draft said:

452. Cross-examined, the Defendant said the suggestion that there had been very little improvement in his father's condition as at 16 January 2018 was “inaccurate”.

453. The Defendant said, in response to a question from the Court, that from time to time he had embellished the Testator's incapacity for the purposes of acquiring power to manage his assets without having to go through court processes.

454. In April 2018, Asma Noor sent emails to two Dubai lawyers in relation to new Powers of Attorney to be granted by the Testator to the Defendant. She requested that the Powers of Attorney include the power to the Defendant to gift assets to himself. In cross-examination the Defendant denied that he was asking for gifts from his father. The exchange of Powers of Attorney within the family had been a normal practice since the early 2000s. The suggestion was a response to legal advice.

455. It was put to the Defendant that the instructions to the lawyers in April 2018 were coming from him as his father had no capacity to give instructions. He replied that this was a part of managing the estate and he had taken advice from the lawyer. He claimed to have updated his father. Asked by the Court how he updated his father, he said that they would sit together in the evening and he would tell his father how his day had been and would take his opinion on matters. He said “I would involve him in everything that we did.” The Testator would normally respond to the questions upon which the Defendant sought advice. His responses would be “yes” or “no” or maybe nodding his head.

456. On 27 February 2019 the Testator was admitted to the OptimaMed Clinic in Austria and visited there by the Defendant, Gauri and Kunal Gupta. Notes of his condition on admission included the following:

The notes recorded that when asked about cognitive changes, Nidhi — referred to incorrectly as ‘the daughter’, “mentioned difficulties with concentration, memory and word finding”.¹⁵⁵ The Testator was described as “awake, consciously clear, and not clearly orientated in terms of time and situation”. In cross-examination, the Defendant accepted that this was an accurate representation of the Testator's condition. He said in answer to a question “I think we went with the goal to improve all these things. Yes, we did go with that goal”.¹⁵⁶

457. The Testator was discharged on 7 April 2019. His discharge notes were in the following terms:

458. In cross-examination, the Defendant was asked whether this was an accurate description of his father's condition as at 5 April 2019. In response he said “[i]t is a correct representation of his improvement”. He continued:

That response was indicative of a tendency not confined to the Defendant to put an argumentative spin on answers to questions put to him.

459. In his Second Witness Statement the Defendant had said that throughout the Testator's trip to Delhi between 3 and 7 June 2019 he had “travelled as a normal passenger who did not require any medical attention or support whatsoever”.¹⁵⁸ The Claimant made the point that in cross-examination the Defendant had said that both of the Testator's fulltime nurses had accompanied him on the trip.

460. In answer to a question, the Defendant said the two medical assistants were there to give the Testator physical support.¹⁵⁹

461. The Defendant was further cross-examined about clinical evaluation notes dated 26 June 2019 following the admission of the Testator to the Shirley Ryan AbilityLab in Chicago on 25 June 2019. Under the heading ‘Cognitive – Communication’ and in particular ‘Cognition Executive Function Grid’, the notes recorded impairments in attention to detail, awareness, cognitive endurance, information processing and initiation. Impairments to language were recorded “reduced auditory comprehension for longer sentences & short paragraphs”. Reduced verbal output impacted by cog-com deficits, also notable for phonemic paraphasia impacted by Dysarthria. The notes recorded that the patient required increased time and prompting for expression of basic wants and needs. The cognitive communication severity was assessed as “moderately severe”, the cognitive communication diagnosis was “Cognitive - communication deficits associated with right hemisphere disfunction”. The Testator was informally assessed to have reduced cognitive endurance, reduced orientation, reduced memory for new information and reduced visual-spatial skills.¹⁶⁰

462. The Defendant initially said that he did not know what test was done or on what basis the evaluation was done so he could not comment on them. Asked whether the Attention Skills Grid referred to in the notes showed an accurate record of his father's condition when in Chicago, he replied:

He was cross-examined on the program goal of the Chicago facility which included “[p]atient will demonstrate comprehension of related 2-3 sentences …”.¹⁶² The Defendant agreed that his father spoke with very short words or very short sentences which is why they had taken him to Austria or Chicago to improve that. He also asserted in relation to further questioning that “as far as our family is concerned whatever we communicated with him, he understood.”.¹⁶³

463. This evidence and similar evidence by Nidhi was said by the Claimant in Closing Submissions to be an attempt to undermine the accuracy of the notes to serve their own case.

464. I accept that the notes reflect an evaluative process by staff who did not have a longitudinal perspective on the Testator and that a genuine family perspective over a much longer period of time might present a different picture. However, I can place little reliance upon the Defendant's testimony having regard to his claimed use of “embellishment” to serve his own purposes.

465. In his First Witness Statement, the Defendant said that his mother had explained the rationale for the new Will to be “so that [he] could look after the estate without having to rely on [his] own assets”.¹⁶⁴ When asked in cross-examination for whom he might look after the estate in the event that both his parents died, he accepted that it could not be them. It was put to him that the explanation he attributed to his mother did not make any sense. He replied “Yeah, I mean, I guess it wasn't thought through that much but I understand the intention”.¹⁶⁵

466. He accepted in cross-examination that before his father had suffered the stroke he had intended his Indian estate to pass to the Claimant. He contended that by the time the Will change was mooted, his parents were “already quite unhappy with whatever transpired in three years with Nitin and the amount of money that has gone to him”.¹⁶⁶ Asked whether he understood that the effect of the Will his mother was asking him to make arrangements for in November 2020 would have been to completely disinherit the Claimant and his family, he replied that that was correct. However he made the point that his mother was still alive and she could change her mind at any time.¹⁶⁷ He asserted, in answer to further questioning, that by that time the Indian estate was worth very little because a lot of money had already been given to the Claimant, a lot used to pay donation money, to meet an income tax commitment and the real estate which comprised a lot of the Indian assets, was already sold.¹⁶⁸

467. As to the false Declaration signed by the Testator in December 2020 acknowledging that he had drafted the Disputed Will himself and had not received legal advice regarding it, the Defendant accepted that the Testator did not read the Declaration.¹⁶⁹ When asked by the Court, he said he could not remember whether the document was in fact read out to the Testator or not or even whether it was signed in the Defendant's presence.

468. As to the Will itself, the Defendant said in cross-examination that he “read out only the important points firstly the wishes and if there was anything else important he highlighted that”.¹⁷⁰ He could not recall when that happened or where it happened but claimed that Asha was also present.¹⁷¹

469. It was put to the Defendant that he could have asked a doctor to assess his father's testamentary capacity before the Will was executed. He said that looking back, there could have been many different ways to do things. But at that point in time they did what they felt made sense.¹⁷² The Saudi German Hospital was a 15 minute drive away from his home. His father had been taken to that hospital on the day of the execution of the Will. It was put to him that it would have been very easy for a doctor to assess testamentary capacity then. He said:

He disagreed with the contention put to him that the reason no doctor was asked to assess his father's testamentary incapacity was that it would have been very clear that his father lacked that capacity. He disagreed with that contention.¹⁷⁴

470. He was also asked whether, given the effect of the Will in completely disinheriting the Claimant and his family, he must have realised that the Claimant was likely to do something to challenge the Will. His response was that under the Will both sons were disinherited. It was only in a hypothetical situation if something happened to both of his parents that he would inherit. He said he was never concerned about a challenge and never thought about it.¹⁷⁵

471. The Claimant had asked for a copy of the Testator's death certificate but this was withheld. In cross-examination it was put to the Defendant that the Claimant had asked for a copy of the death certificate but that he had refused to disclose it to him. The Defendant responded “[w]e doubted Nitin's intentions at that point in time. And I think we must have produced this certificate a little later to him, yes.”¹⁷⁶ The Defendant was asked whether he had asked his son Karan to lie to the Claimant about not having the death certificate on 4 January. He replied:

He also agreed that by an email dated 24 February 2022 sent to the DIFC Courts, he urged the Courts not to disclose a copy of the Will to the Claimant. He said:

He rejected “as absolutely incorrect” the proposition put to him in cross-examination that he knew the Will was invalid and would not stand up to scrutiny.¹⁷⁹

472. The Claimant in Closing Submissions characterised the Defendant as a “wholly unreliable witness whose evidence should be approached with caution”. He was said to have attempted to down-play the seriousness of the Testator's condition:

473. Then it was said he attempted to explain away every piece of contemporaneous evidence of the Testator's condition which did not suit his case. It is unnecessary for present purposes to traverse that aspect of the submissions.

474. Further it was said that his claimed recollections were demonstrably unreliable. Examples were given of that unreliability.

475. The Defendant's Closing Submissions identified three themes emerging from the Defendant's oral evidence. He had maintained his account of the Testator's recovery under cross-examination, explaining that the Testator carried out calculations,¹⁸¹ that he could speak multiple words and short sentences by 2019,¹⁸² that he played Monopoly unaided¹⁸³ that he selected cars¹⁸⁴ and that in 2020 the Testator told him not to sell the Marina View Towers as he would get a better price for it later.¹⁸⁵

476. The second theme was that the Defendant wanted to help his parents in the aftermath of the Testator's stroke. Asked about property transactions made in late 2017, he had said “..we had to manage the situation … I consulted my mother, and we did whatever best we could to manage the situation”.¹⁸⁶

477. Then it was said that he was a candid and straightforward witness, demonstrated by the fact that he was willing to offer explanations which might be embarrassing including the correspondence he had sent to Emaar of 5 December 2017.

478. The Closing Submissions pointed to the extent of cross-examination on steps taken to manage the estate in the immediate aftermath of the Testator's stroke. It was put in Closing Submissions that the short answer could be found in Asha's evidence:

479. Overall, the Defendant's testimony as to his own conduct does not inspire confidence about his credibility so far as it relates to factual observations and statements about the Testator's condition and capabilities at the time of the execution of the Disputed Will. On the other hand, I accept that he effectively assumed the management of the Testator's affairs in the aftermath of his stroke and that that management was generally in the interests of his parents.

First Witness Statement of Asha Gupta dated 12 September 2025

480. Asha, who is the widow of the Testator, was married to him for 51 years. She speaks and understands some English but is not entirely fluent, her first language being Hindi. She was assisted in the preparation of her witness statement by her grandson, Karan Gupta. The statement had been read to her by a qualified translator.

481. Asha and the Testator moved to Dubai in 1988 and established KG International in Dubai in that year. He focused on selling Japanese, Romanian and Chinese bearings into the Middle East and Asia. He travelled at least 10 days per month. She spoke of his character, values and generosity.

482. She described the ‘Pre-2017 Family Dynamics’. The Claimant had graduated from university in the United States in 1993 and returned to Dubai and joined the family business. At that time, the Testator expressed to Asha on several occasions his disappointment about aspects of the Claimant's conduct and behaviour. The Claimant married in 1995 and then began to pursue his own business interests beginning with a health supplements trading business in India, which he started in 1996.¹⁸⁸

483. Asha referred to the failure of the health business and the Claimant's subsequent decision to open a gym brand in India. She said he moved to India permanently in 2003, settling in Mumbai with his family. He opened and closed various businesses, including beverages, active wear and something in the music industry. According to Asha, “they all failed”.¹⁸⁹ She and the Testator funded the Claimant's health supplements business and his gym business. They would have given him between INR 500-800 million, i.e, between USD 5.6 and 9 million as at the date of her witness statement. These advances were by way of gift rather than as an investment. They also paid for the Claimant's family to settle in Mumbai in 2003. This involved buying a house and paying his living expenses. Asha estimated that over the years, this would have amounted to something like INR 100-200 million, i.e, between USD 1.14 and 2.7 million. She said that they also purchased numerous assets for him in India as they wanted to protect his wealth despite his business challenges.

484. Asha and the Testator also purchased a number of properties for the Claimant's son, Kunal, in Miami by way of further support of his family. There were four apartments valued at something like USD 3 million as at the date of the witness statement.

485. Asha and the Testator saw the Claimant and his family approximately three times a year in Mumbai and two or three times a year in Dubai. Despite her account of apparent tensions with the Claimant, she described the family as tightknit and the relationship as “very strong” between 2003 and 2017.

486. Asha said the Claimant continued to press the Testator and her for money for his business ventures. There were many transfers over the years of large amounts. She could not recall the exact value. The Testator did not feel they were able to ask the Claimant about the return on the investments. They were afraid, because of his temper, that he might explode with rage if he were asked and this would spoil the relationship. She described the payments to the Claimant “as a way of buying family harmony”.

487. There were instances of allegedly poor behaviour. The Testator had told her that the Claimant went on frequent “boys' trips” away and spent a lot of time with women in his office. This is not evidence of the fact, but may be evidence of an aspect of the Testator's attitude to the Claimant at times.

488. Between 2010 and 2016, Asha and the Testator purchased numerous properties for the Claimant to support his family, amidst failing businesses. They wanted to distance themselves from his problems and demands for payment. Out of a sense of fairness, and at her insistence, they decided to make the Defendant independent from them too. They did this by selling their shares in KG International to him. The Defendant paid AED 30 million for the entirety of the shares and was happy to do so.

489. Asha described intrafamily powers of attorney. Before 2017, the Testator, the Claimant, the Defendant and she were accustomed to granting powers of attorney to each other. This was to help smooth administrative processes, connected with transfers of properties and the arrangement of rentals. It was also useful in case of emergency as both the Testator and the Defendant had experienced health issues. The grant of powers of attorney became standard practice between the four family members. From time to time, they added each other's names to bank accounts and to title documents for properties.

490. For a long time, the Testator and she granted only special powers of attorney to the Claimant. They did this in 2008. They believed him to be irresponsible. Further, the Testator felt that he needed to do all his work in India himself.

491. Asha spoke of a power of attorney granted to the Claimant by the Testator and herself in 2017. She had insisted to the Testator that they needed to find a way to manage investments in India without the need for travel. She said that they were both concerned about doing this because the Claimant had a history of poor financial management. He used to make transactions in accounts in Asha's name without her approval. She still does not have an accounting of those funds. Between 2008 and 2016, she periodically asked him why he was signing in her account and where the rental income from her properties in Mumbai was usually credited. She said he dismissed her enquiries saying that the rental income would be spent on the same property. In the event, she thought it was not worth fighting about.

492. Asha described the events surrounding the Testator's stroke in December 2017. Karan Gupta took primary responsibility for his health care. He stayed every night in the Saudi German Hospital and consulted doctors during the day. In the meantime, the Claimant and the Defendant managed the Testator's affairs. About three weeks after his admission when the Testator was removed from the ICU, the Defendant and Nidhi took over his healthcare. Asha thought it best that the Testator move to the Defendant and Nidhi's villa. She thought they would be better carers than her since they were more knowledgeable. The apartment she shared with the Testator was not readily accessible to emergency services. It would be easier to manage his care if they were able to be together.

493. When Asha told the Claimant about her decision in October 2017, he became extremely angry. He said he should have been consulted and he wanted the Testator to move back to the apartment. He would move into it to care for him. She never considered this to be viable. She did not believe that the Claimant had the discipline and diligence to care for the Testator. This evidence cannot be taken as evidence of the Claimant's conduct. It lacks the necessary particularity for the reliable inference of fact to be drawn. It does, however, evidence the sometimes tense relationship between the Claimant, his mother and the Testator.

494. When the Testator was discharged from hospital in November 2017, he had a PEG tube in his throat. That, together with hemiparesis, meant he was not able to function on his own. His biggest challenge was communication. His speech was limited to short bursts. He could communicate by nodding his head. According to Asha, “his understanding was strong”. He could be asked whether he was comfortable or hungry or thirsty and was able to respond. He recognised people who came to visit.

495. According to Asha, between 2017 and 2019, the Testator made substantial improvements in his health undergoing speech therapies and physiotherapies every day. She encouraged him to be physically active. His tracheostomy was closed in April 2018.

496. She spoke of the care provided to the Testator by Nidhi. When asked, in the second half of 2018, whether he wanted to move back into their apartment, the Testator said he would be more comfortable at the Defendant's house.

497. In 2019, it was decided that the Testator should undergo intensive therapy programs in other countries. Two leading programs, one in Austria and one in Chicago, were identified and the family decided to take him to both. Asha did not go on any of those trips. However, she saw “a massive improvement upon his return”. He could perform an expanded range of movements and activities, including walking, eating, brushing his teeth alone and general motion during routine therapies. His attention span had improved and his communication was better. He used more words. She found it possible to hold longer dialogues with him.

498. In June 2019, she took the Testator to Delhi for a holiday. On the trip, he enjoyed seeing everyone and was able to recognise some very distant relatives. At one point on that trip, he expressed his wish that the Claimant should reconcile with his wife. He said this at the dining table one day.

499. Between 2019 and his death, the Testator continued to make improvements. In 2020, he was able to walk with little or no assistance, brush his teeth, write legibly, eat by himself and perform routine activities independently. His memory was said to have improved noticeably. Asha said there were some things he could not do, however, particularly activities which required the use of both hands, including changing his clothes, entering and exiting the shower and going to the bathroom. This was difficult because his right side had not recovered.

500. She said that by 2020, he was able to play board games, such as blackjack, poker, Ludo, snakes and ladders, Connect 4 and monopoly.

501. Asha spoke of the continuation of the Testator's characteristic punctuality. He would not be even a minute late for any of his therapies or meetings. She said he also remained stubborn. This appeared from his choices about what to eat, what moves to make in board games and who he wanted to meet.

502. In that year, he spent one or two hours in the KG International office most days, studied business deals with the Defendant, selected home interiors for properties that he was developing with the Defendant and had meetings with business associates. Asha said she joined in perhaps 20% of those meetings.

503. She spoke glowingly of the love and care that the Defendant and Nidhi gave to the Testator.

504. Between 2017 and 2021, the Defendant's children Karan and Ashna came home during university and work breaks for between two to twelve weeks at a time and used their time to follow the Testator's schedule. That gave the Defendant and Nidhi a break from caring responsibilities. Asha asserted that the Testator enjoyed their company. She recalled asking why he would be a little “down” after they left and he said “.. because the kids have left”.¹⁹⁰

505. The Statement then turned to the Claimant's actions following the Testator's stroke. Asha said that in December 2017 she met with the Claimant and the Defendant to discuss the management of the Testator's affairs, observing that his recovery was going to be tough. She told her sons that their collective priority should be to ensure that the value of the Testator's assets was not diminished and to ensure that they did not default on any of his commitments or liabilities. The Defendant agreed with her.

506. The Claimant said that he did not agree to a large charitable commitment which the Testator had made to a hospital in India — a pledge of approximately INR 200 million to the Maharaja Agrasen Kedar Nath Gupta Medical College in Bahadurgarh, Haryana, India. She said the Claimant also demanded that all of the Testator's properties in India should be transferred to him immediately. Asha said she was horrified at this demand. The Testator was alive and improving every day. The Claimant had no right to make the demand.

507. She did want to give the Claimant a chance of participating in the management of the Testator's affairs because the burden was affecting the Defendant's health. She told the Claimant that he could handle the consolidation into one unit of a building called Picasso, on which the Testator had made a 50% payment. The Claimant did that but without approval swapped the Picasso property for a property in Goa and for cash. Neither the property nor the cash had been transferred back into the Testator's estate.

508. Asha then went on to say that despite their support to the Claimant, his visits to the Testator became less frequent, he and his wife had separated and, according to her and the Testator's brother Pawan Gupta, the Claimant was developing detrimental habits such as taking drugs.

509. Asha then turned to lifetime payments made to the Claimant. She alleged that at the end of 2017 he withdrew cash of approximately INR 70-75 million from the Testator's HDFC bank account in India — money which had been set aside to manage the Testator's affairs. In doing so, he misused the Power of Attorney or bank mandate. She responded by stopping his access to that account.

510. The Testator began receiving numerous demands from the Claimant for large cash payments.

511. Over the next few months the Claimant received substantial amounts of money from the Testator and Asha. On 19 December 2017, he was paid INR 25 million. On 29 December 2017, he was paid INR 45 million following an emotional plea after which Asha reluctantly agreed to the payment.

512. Between 18 January and 28 February 2018, the Claimant withdrew approximately INR 8,250,000. He continued to make emotional pleas for money throughout the remainder of 2018.¹⁹¹

513. By the end of the year, according to Asha, her patience was wearing thin. Shortly before the last of the payments to the Claimant, he promised her that it would be “the last time” he asked for money. Asha regarded it as unfair to the Defendant that he should be caring for the Testator and managing the business while the Claimant reaped the financial benefits.

514. The Claimant asked her for INR 7 million in April 2019. According to Asha she discussed this with the Testator and he agreed to it because it was a smaller amount of money. The money was paid on 1 April 2019.

515. In October 2020, the Claimant again requested money, this time INR 40 million. The Testator said “don't give”.¹⁹² Asha was frustrated by her son's repeated false promises and poor financial management. He told her that he had taken on a large loan and would be in trouble if he did not pay it back. She said she then convinced the Testator to allow the transfer. The Defendant assisted, at her request, by taking out a loan to pay the Claimant.¹⁹³

516. All in all, according to Asha, between the time of the Testator's stroke and his death she and her husband transferred to the Claimant sums totaling INR 254,250,000 (approximately USD 2,893,650.45). At no time did the Claimant suggest that the Testator lacked capacity to authorise those payments to him.

517. Asha also spoke of a conversation she had with the Testator in December 2018 in which he told her that he was not okay with the Claimant's behaviour. He agreed that they should revoke his Power of Attorney and banking access. As a result, Asha instructed the Defendant and Dinesh Giani to revoke the Powers of Attorney.¹⁹⁴

518. Asha then turned to the Testator's decision to make a new will. At the end of 2020 the Defendant had assisted them to a point where the liabilities were managed and the estate was no longer in “too much flux”.¹⁹⁵ She said she told the Testator that the only thing that could get in the way of this was if something were to happen to them. She asked if they should register a will to protect the estate. The Testator agreed. She asked who they should give everything to in a will. According to Asha the response was “only to you”.¹⁹⁶

519. She subsequently passed on their wishes to the Defendant in November 2020 and asked him to arrange for the preparation and execution of a will for the Testator and herself. She had put to the Testator that the Defendant should be a substitute beneficiary since he was the one to take on all the liability of the estate. He should have the assets to manage without affecting his own wealth. After the wills were drafted she said the Defendant read the contents to the Testator and herself and asked if they were okay with them. They both agreed and instructed him to complete the process.¹⁹⁷

520. Importantly, Asha said:

521. This explanation of the rationale behind the new wills was plausible and persuasive. It was consistent with the general history of the relationships between the Claimant and his parents. That conclusion does not require detailed findings about allegations of alleged poor behaviour on the part of the Claimant. What is important here is whether new wills were motivated by concerns about the management of the estate in the event that either or both the Testator and Asha were to die.

522. Asha's Statement went on to refer to the Claimant's conduct after the Testator's death.

523. About two weeks after the Testator had died, the Claimant told Asha that he wanted the immediate transfer of the assets to which he felt entitled, namely the Testator's Indian assets. She told him that there was nothing in the Will for either him or the Defendant but that it was her intention that he should be left the Indian estate after her death. She told him that the Testator's Will left everything to her and he began raising concerns about it. She remained unclear as to what he really thinks happened. He has initiated legal proceedings for numerous different issues. She advised him to rebuild the relationships he had spoiled over the last few years.

524. In the event, she asked the Defendant to draw up a Deed of Family Settlement and said that all discussions and negotiations should be documented and signed because the Claimant was often changing his demands.

525. In a family meeting, which was witnessed by the Testator's brother Pawan Gupta and his wife, the Claimant demanded that all the liabilities of the India estate be given to the Defendant, while he took all the assets. He also demanded that Asha's personal assets be transferred immediately. He wanted assets totaling a sum of INR 1 billion. Asha considered his demands were unfair and extraordinary. She knew that the Testator would never have accepted them. Nevertheless, she signed the Deed of Family Settlement. It was the following day that the Claimant came back and demanded more assets from Dubai. She said he threatened to “go legal” if they did not agree. She did not agree to his additional demands.¹⁹⁸

526. Asha referred to various law suits filed by the Claimant in the following years. He brought claims in Dubai that were heard by the Dubai Court of First Instance, the Dubai Court of Appeal and the Dubai Court of Cassation. In Sharjah, he filed a criminal complaint against her and the Defendant with the Public Prosecutor. He brought a claim before the Delhi High Court in April 2023 in which he relied on the succession certificate. Each of those claims failed.

Second Witness Statement of Asha Gupta dated 10 October 2025

527. In her Second Witness Statement, Asha referred to the Claimant's witness statements. She rejected his contention that there had been disagreement between the Testator and the Defendant. There was no disagreement about whether the Defendant and his family were to live in the property at J8 Emirates Hills. It had been bought for that purpose.

528. As to the Claimant's allegations concerning the revocation of the 2017 Power of Attorney, Asha said she never gave an instruction to revoke that Power of Attorney. Any instruction was given by the Testator. It was not taken as a result of a confrontation, but as a result of the Claimant's behaviour. The relevant behaviour was his misconduct in relation to their bank accounts, his history of not supporting the Testator and her in their time of need and his mismanagement of the Picasso property. There was reference to what the Claimant called ‘Indian Money Transfers’ totaling USD 3,205,579 which he had said took place between 19 December 2017 and 1 April 2019. Asha said the so-called Indian Money Transfers took place in part without her knowledge or approval and she was not monitoring the relevant account at the time. She was not “happy” that enormous sums were being removed from the Testator's bank accounts in that way. She could not recall any conversations between the Testator and the Claimant in which the Testator gave his approval for those enormous transfers.¹⁹⁹

529. Asha also referred to a witness statement by Pawan Gupta in which he described a visit to Dubai in February 2019 stating that the Testator was “unable to recognise him”. She recalled the visit but she could not remember the Testator failing to recognise Pawan. There were occasions when his mood or energy were low and he needed some prompting.²⁰⁰

530. She also referred to the witness statement of Tripti Gupta who recounted a meeting with the Testator in May 2019 and stated that he was “not in the condition to speak much or form his own sentences” and “had to be prompted and required assistance for everything”.²⁰¹

531. Asha said she was present at that meeting and had a starkly different recollection. She said the Testator was able to recognise older and distant friends or relations. He communicated with all the family members around him and expressed his thoughts. Members of the family said they were surprised and pleased by his progress. Again she qualified this by observing that there were periods of low moods and energy as the Testator was not in his comfort zone and was meeting many people for the first time in his paralysed state.²⁰²

Cross-examination of Asha Gupta

532. The cross-examination of Asha covered a number of topics referred to in the Claimant's Closing Submissions.

533. In cross-examination she was referred to her statement that in April 2019 the Claimant had asked her for RUP 7 million. She was challenged on her statement that she had discussed the request with the Testator who agreed to it, saying it was okay because it was a smaller amount of money.

534. It was put to her that she did not discuss that request with the Testator because she was in charge of his finances. She rejected this question, answering in English:

535. It was put to her that the reason the Claimant could not speak with the Testator about money at that time was because the Testator could not understand his finances. Asha replied that:

536. The Claimant referred in Closing Submissions to earlier answers in cross-examination, about Asha's withdrawal of money from the HDFC account in December 2013. She had answered, again in English:

Her husband had no involvement in any transactions at this time. She said:

537. On the matter of the revocation of the Claimant's Indian Power of Attorney, she had said in her Witness Statement that the decision was made two years earlier in December 2018 because of the Claimant's alleged behaviour. In her Second Witness Statement she said that the revocation had come about in 2021 because of the Claimant's “worsening behaviour over the course of 2017 to 2021.”

538. In oral evidence in cross-examination it was put to her that the reason the Claimant's Indian Power of Attorney was revoked in June 2021 was because the Claimant had sent her a WhatsApp message saying that he was going to challenge all the lifetime transfers that she and the Defendant had arranged. She agreed that that was the reason. Her response in English was “Yes”.²⁰⁵

539. In relation to the Testator's attendance at office meetings which Asha said she attended 20% of the time, it was put to her that the meetings never happened.²⁰⁶ She responded emphatically in English:

540. I accept that Asha was not lying about these meetings. It would have been a florid falsehood.

541. There was cross-examination on the Claimant's request by WhatsApp to Asha on 19 September 2020 for a loan of 4 CRORES to repay a business loan with which he was struggling to meet because of seven months of lockdown caused by the COVID pandemic. He offered repayment terms and security.

542. There were voice notes and queries sent from Asha to the Claimant about the amount needed and dates.

543. It was said in the Claimant's Submissions to be apparent from Asha's evidence in cross-examination that the decision to make the loan was hers, not the Testator's. In cross-examination she said that the Testator had said “don't give”. It was apparent, however, that she approved the loan notwithstanding. Asked about this in cross-examination she said in English:

544. It may be accepted that Asha and the Defendant effectively decided to make the loan to the Claimant. It may well be that the Testator said “don't give” and that she made the decision to go ahead with the loan in any event.

545. As to the making of the Disputed Will and her new Will, she said in cross-examination that she discussed the idea with her husband. Asked whether her husband told her that he wanted the Indian assets to go to the Claimant, she said:

Asked if she wanted to make new Wills to achieve that, namely Dubai to Rohit and India to Nitin, she said:

546. She said that they both had decided that if something happened to her the Testator would take all the decisions and if something happened to him she would take all the decisions.²¹⁰

547. The Claimant submitted that Asha's evidence was contradictory and inconsistent and pointed, in particular, to:

The Claimant also pointed to her description of the Testator's comprehension and understanding in late 2020 as “perfect” when plainly it was not.

548. The Defendant submitted that, as the Testator's wife of more than half a century, Asha's explanation for their decision to make new Wills in 2021 should be given considerable weight. By late 2020 they were fed up with the Claimant's demands for money.

549. The Defendant pointed to Asha's emphasis on the protective rational behind the new Wills and their decision to name the Defendant as substitute beneficiary because “it was only Rohit who was taking care of us and doing all the works for three years …”.²¹¹

550. Three further points were said to have emerged from her oral evidence:

551. The basic justification for the new Wills as explained by Asha in her evidence was plausible and straightforward. Despite some inconsistencies in her evidence and the challenges of testimony partly delivered through an interpreter and partly in English, I accept her explanation of the rationale for the new Wills. I also consider it unlikely that she would not have put that straightforward proposition to the Testator. Whether he had the capacity to understand it is another question to be examined in light of the medical and other factual evidence relating to his condition.

552. As to the false declarations signed by Asha and said to have been signed by the Testator, there was evidently some confusion on Asha's part in her cross-examination between the Declarations and the Wills. She said in cross-examination that she was with her husband when he signed the document. She said, in effect, that her husband would never sign a false document.

553. As to the Wills, she said that the Defendant had read the contents out to them “[w]hatever intentions we had told, the will contained those only, so those were correct.”

554. Both she and her husband had given instructions in Hindi and the contents of the Wills were explained to them in Hindi.²¹⁴ As to what would happen with respect to the Claimant she said in cross-examination that it was always their understanding that after both of them died, India would go to the Claimant and Dubai would go to the Defendant — “but only after death of both of us”.²¹⁵

555. As to the execution of the Wills, she said that when the Will was read she and Mr Giani were sitting next to the Testator. The three of them in her office. It was put to her that the Testator did not understand that he was being asked to sign a will. She replied that he was able to understand everything. He used to sign himself, he would not do anything against his intentions.²¹⁶

556. The Testator's handwritten letters were mentioned to her. It was put to her that they showed that in the second half of 2021 he was still very confused. She rejected that:

557. I generally accept Asha's factual observations of the Testator. I do not have regard to her opinions as to his capacities from time to time.

First Witness Statement of Nidhi Gupta dated 11 September 2025

558. Nidhi Gupta is the wife of the Defendant. They were married in March 1995.

559. After they were married, Nidhi moved to Dubai to be with her new husband and his family. She described the Testator as having become more than a father to her. He urged the Defendant and her to live separately from him and Asha but in the same building so they would stay connected like a joint family. In 2012, she and the Defendant moved to Emirates Hills, while his parents remained in Dubai Marina. They continued to meet regularly for meals and gatherings. According to Nidhi, she developed a strong rapport with the Testator. She said he always discussed important information with her. From the outset she always accompanied him to his medical appointments because of his pre-existing cardiac condition.²¹⁸

560. She described the Defendant joining the family business and the Claimant pursuing his own career path. According to Nidhi, several times prior to 2017 the Testator expressed to her concerns about the Claimant's lack of financial independence. In 2013, after the Claimant had closed down a clothing venture, the Testator told her that he was glad the Claimant was away and would not see the wealth gap between himself and the Defendant, who was doing very well in business. He said he purposely supported the Claimant's family and business ventures a bit more because he did not want the Claimant to feel the disparity as much and said “I am afraid that this gap will keep growing”.²¹⁹

561. She referred to the Testator's stroke, Karan's involvement in his care after the stroke and her own management of the Testator's medical and rehabilitation needs not long after.

562. Nidhi observed that the Testator began to speak following the removal of his tracheostomy tube in April 2018. She said his speech improved further with speech therapy and rehabilitation.

563. She referred to the rehabilitation programs in Austria and Chicago in 2019. She was the only person who accompanied him for the duration of those visits. The Defendant would visit frequently during the course of their stays.

564. During the first period of rehabilitation when he was in Austria, Gauri and her son Kunal visited the Testator on a number of occasions, usually between 10am and 3pm. This coincided with the times that he was engaged in therapy so they did not see him much. He was usually only available after 4pm. She said that after his therapies were completed, she and the Testator would play board games, listen to Hindi music in the recreation centre or go for a walk. They used to have meals in a restaurant close to the rehabilitation centre.

565. Nidhi spoke of the Testator's attendance at morning therapies at the Shirley Ryan AbilityLab during the second rehabilitation period in Chicago.

566. During the Testator's recovery they took advice from Dr Arjundas who had visited him four times in 2017 and 2018 and helped them to optimise his therapy plan.

567. According to Nidhi, the Testator started to show signs of recovery soon after his stroke. He had physical limitations but remained mentally attentive and made decisions independently. He maintained punctuality even after his stroke. She said they pushed the Testator to keep his schedule full of therapies to speed up his recovery at the recommendation of Dr Arjundas. Nidhi took him to his sessions and afterwards they would relax at a café. In post-therapy chats he liked to analyse his therapists and discuss them with her. If there was a particular therapist he did not like, he would get her to change them. He did that twice.

568. The Testator went to the offices of KG International three times a week. He would decide what time he wanted to go and ask his attendant to plan accordingly. He would ask his friends, Sanjah Shah and Badal Babariya to meet them when he wanted some other companies.

569. Nidhi used to discuss personal matters with him. She told him that the Defendant's kidney had started to fail again and he simply replied “give him mine”.²²⁰ She discussed the possibility that the Defendant's health might deteriorate and asked whether it would be alright to call back her son Karan to take over. She told the Testator that Karan really loved his career and life in the US. However, the Testator said that it was okay, the opportunity was also big and she should call him soon so that he would have time to learn.

570. In the five years following his stroke, she said the family took a number of steps to keep the Testator informed of proposed business transactions and to allow him to approve or disapprove them. The procedure was that the Defendant or someone from KG International would visit the Testator at his home or in the offices of KG International. They would explain the transaction and answer questions. After a few days, the Defendant would confirm the decision with the Testator. Where the Testator approved, the transaction would be finalised at his home or in the office. A notary was used to verify his independent consent before signing.

571. Nidhi referred to the frequent visits of the Claimant and his family to the Testator in the immediate aftermath of the stroke. When he came, however, he would only spend time with the Testator over lunch and would be out for the rest of the day. He was not involved in the Testator's care although his wife Gauri would often provide company to the Testator when he was undergoing therapies.

572. Nidhi concluded her witness statement with a statement about the Testator's cognition. She referred to a framed photograph of his boarding school class which they moved from his old apartment to the villa when he moved in. She said he remembered all of his friend's names. And when he initially started to write more with his left hand he would often write stories about his early life, mentioning where he lived and where he went to school, where he lived when working and old business associates. As his writing improved, he began sending letters to close friends and family whom he used to miss. He maintained an interest in Indian premier league cricket matches. He controlled what clothes he wore in the morning and what he would wear when shopping and what to eat for each meal. Nobody could ever ask him to do anything he did not want.²²¹

573. Nidhi said she was also present during what she called the unpleasant discussions after the Testator's passing where the Claimant was demanding certain assets and where a Deed of Family Settlement was signed. She said she had read the final witness statements of Asha Gupta and Rohit Gupta and confirmed that their accounts of those discussions were correct according to her recollection.²²²

Second Witness Statement of Nidhi Gupta dated 10 October 2025

574. Nidhi Gupta filed a Second Witness Statement responding to Pawan Gupta's claim that during his visit to Dubai in February 2019 the Testator was not able to recognise him. She remembered the visit and remembered that the Testator had never failed to recognise Pawan any time during that visit.²²³

575. She also referred to Tripti Gupta's Second Witness Statement in which he said that in May 2019 the Testator had to be “prompted” to speak and “required assistance” for everything. Nidhi was present at Tripti's meeting with the Testator in May 2019. She agreed that there were occasions when he needed to be prompted to engage with others, particularly those he did not see very often. There were a few instances when he would tell Nidhi that he did not want to see people. This was when he was in a low mood, particularly after some of the more draining therapies.²²⁴ This statement also contained a statement about his capacities which is a statement of opinion and which I disregard.

Cross-examination of Nidhi Gupta

576. Cross-examined on the email from the Defendant to Emaar on 5 December 2017, Nidhi was asked whether the description of the Testator's condition in the email was accurate. She responded that they were written to all the property-related people because of the Testator's investments “they were kind of a little embellished to get as much as – you know, they could rebate in handling his problems, his situation, his financial situation. So they were definitely more embellished than what they were.” She asserted in cross-examination that he was better than suggested in that letter.

577. She agreed that in early November 2017 the Testator would not have been able to attend to business matters.²²⁵

578. She was cross-examined on notes from the Austrian clinic to which she accompanied the Testator in early 2019. The notes recorded that when asked about cognitive changes she had mentioned difficulties with “concentration, memory and word-finding”. Her response to that question was again that the whole idea of him undergoing the therapies was to make him better. She said “… and I had to highlight or make them a little more exaggerated so that they worked towards all these aspects more and make him more better.”²²⁶ She agreed with the proposition that she told the Austrian facility staff that her father-in-law's condition was worse than it actually was.

579. Cross-examined about the Testator's attendance at his office to discuss business matters with Mr Giani, she said he went to the office three or four times a week. She would go with him also once or twice.²²⁷ It was put to her that the Testator was in no condition to discuss business matters in 2020 or in 2021. She said:

580. She was referred to the testimony of Mary Klien with whom the Testator had commenced online speech therapy in June 2020. She was involved in those sessions. Mary Klien had said that when those sessions started in June 2020 the Testator's speech was minimal. He would respond to questions or statements with single word productions.

581. Nidhi said that the sessions were initially Zoom online sessions and that the Testator had issues with his eyesight because of his right side paralysis. Concentration on the screen was not very easy. She agreed that when Ms Klien started the sessions he was not able to connect with her also because her accent was a little different from his. Later he was “really good he was doing complex things with her”.

582. The Claimant in Closing Submissions contended that at various stages of her evidence, it was apparent that prior evidence and the trial, during which she had been present, had influenced her own. She was said to have sought to explain away unhelpful documentary evidence, e.g. the Testator's disorientation as to place and time in both Austria and Chicago which she said was really no more than jet lag. It was also said that she tried to downplay Mary Klien's unchallenged evidence of the Testator's abilities in 2020 on the basis that the meetings were over Zoom or because of Ms Klien's accent. It was also said that she was prone to exaggerate the Testator's abilities when it suited the Defendant's case.

583. The Defendant's Submissions described Nidhi as a “deeply impressive witness”. As the Testator's primary caregiver for four years, she was said to be in a better situation than any other witness to explain the extent of his recovery, especially following his periods of intense rehabilitative therapy in Chicago and Austria. He had maintained under cross-examination that she heard conversations between the Testator after his stroke and Asha discussing family and current issues. She also saw that they were troubled by the Claimant's repeated requests for financial help, as well as information from Gauri and Powan that the Claimant was involved in drugs and alcohol.

584. While her testimony had a degree of partisan commitment about it — meaning that it has to be treated with caution — I do accept her factual testimony relating to the Testator's attendance at his office, steps taken to keep the Testator informed of proposed business transactions and the conversation she heard between Asha and the Testator.

First Witness Statement of Karan Gupta dated 8 September 2025

585. Karan Gupta is the son of the Defendant and Nidhi. He is a graduate of the University of California with degrees in Applied Mathematics and Mechanical Engineering. After graduating in 2018, he spent some years as a management consultant in the United States and returned to Dubai in September 2021 to join the family business, KG International. He is currently Managing Director at KG International in Dubai.

586. He shared a very close relationship with the Testator throughout his life. He was given the nickname Junior KG. Although he had been away from home for many years of his life studying and working overseas, his relationship with the Testator was unimpaired because he spent a lot of time with him every day that he was in Dubai during school or university vacations, approximately two or three times a year.

587. He referred to the stroke and the time he spent living in the Saudi German Hospital in Dubai while the Testator was in ICU. He said that when the Testator regained consciousness two weeks after the stroke he was able to follow basic instructions. He could communicate by squeezing hands and nodding. He could not speak because of the PEG tube. According to Karan, he improved rapidly and after just over a month he was discharged from hospital.

588. Karan described how, when in Dubai for holidays, he would spend every day following the Testator's schedule from about 8am which was when he typically woke up until around 9pm. He described the typical routine, observing that from the middle of 2018 the Testator was able to feed himself after someone had first cut up his food. They used to do home exercises together, including memory, cognition and motor exercises recommended by his therapist. Most days he had a therapy session in the morning which would either be at home, at the Saudi German Hospital or at his rehabilitation clinic.

589. They would lunch together as a family. The Testator was quite stubborn in what he would eat. He spoke of coffee shop conversations with the Testator and playing card games. On one occasion Karan had to choose an apartment to live in. He looked at photographs, brochures and floorplans with the Testator. The Testator chose his favourite apartment. It was a little over Karan's budget but the Testator said “[i]t is a nicer place and good facilities so you should stay there. Dadi [a reference to Asha] and I will get it for you”.²²⁸ Karan refused the offer, but was deeply touched by it.

590. According to Karan, between 2018 and 2021 the Testator showed an interest in hearing about deals or projects which he was working on. He was particularly interested in hearing about how large companies operated. In mid-2019, Karan told the Testator that he was working on creating a foreign exchange pricing engine for a bank. He asked the Testator if he had heard of the particular bank. The Testator responded by saying that he banked with them for many years and had actually done FX transactions with them. He was surprised that FX pricing was not data driven and said to Karan “I thought rates were fixed globally, not by individuals at a bank.”²²⁹

591. After therapy they would go home and relax as a family. Sometimes the Testator had visitors in the evening. He observed his father, the Defendant, taking the Testator's advice on property deals. Sometimes this involved him signing documents. The details were read to him slowly.

592. He described family dinners which were usually at 7:30pm. This would be followed by an hour or so playing games like Poker, Black Jack, Ludo and Connect 4. The Testator only wanted to partner with the Defendant no matter how much they urged him to change.

593. On weekends they sometimes played more involved games such as Monopoly in which the Testator participated. He did not play Monopoly very often because it lasted for a long time.

594. The witness went on to speak of the Testator's recovery. He mentioned short-lived periods during which the Testator appeared to be sad or to have lower energy and would just refuse to talk to anyone. However, when he did choose to communicate it would be well thought out and the words seemed to be chosen deliberately.

595. By the beginning of 2019 he was able to perform many daily activities on his own such as brushing his teeth, walking and writing.

596. Karan referred to the Testator's visit to Chicago in 2019 for therapy at the Shirley Ryan AbilityLab. On weekends they would travel around Chicago together seeing all the sights such as Millenium Park and Sears Tower.

597. In early 2021, Karan moved back to Dubai. Before he returned, the Testator helped him to choose the car he would get. He went to see the car along with the Defendant in July 2021. He told Karan “I didn't like the car because the back is too small and it will not be comfortable.”²³⁰

598. Karan joined the family company in August 2021. On most days he spent about half an hour with the Testator at 8am before going to the office.

599. At the office they talked a lot about business and the Testator would share his experiences in the business with Karan. During one conversation he remembered the prices and weights of some of the main products which they sold.

600. According to Karan when he travelled for work he spoke to the Testator every evening. The Testator would ask what he had done, who he had met that day and what opportunities he had picked up.

601. In the last two months of his life, the Testator gave Karan his blessing to marry his girlfriend, Sriyanka.

602. Karan referred to the Claimant's conduct following the Testator's death. He said he was witness to “a lot of the nastiness that occurred as a result of Nitin Gupta's demands”.²³¹ He remembered being surprised at how entitled the Claimant felt to the estate, considering how little he had contributed to the Testator's recovery and how little he had been there during his times of need.

Cross-examination of Karan Gupta

603. Karan Gupta's evidence, generally speaking, painted a more positive and glowing picture of the Testator's recovery than that of the other witnesses in the Defendant's camp.

604. The Claimant pointed out that in his Witness Statement Karan Gupta had said that from 2017 onwards whenever he was abroad he would speak to the Testator every one or two days by way of a video call. However, the Testator could not speak until his tracheostomy was removed in April 2018.

605. In cross-examination he said that the initial conversations in 2018 were not long. He agreed that the Testator's ability to speak was very limited to one or two words.²³²

606. He recalled the conversation about his choice of apartment to live in Chicago and looked at photographs, brochures and floorplans with the Testator. He said in cross-examination that he remembered the conversation very well and they looked at a number of apartments. At the end the Testator could speak one or two words at a time in Hindi and would say in Hindi — this is the nicest place or that the building we chose had very, very nice facilities. When he had said it was out of his price range, the Testator said we will get it. It was one or two words at a time but that was his view. He rejected the challenge in cross-examination that the Testator was in no mental state to be able to have such an interaction in July or August of 2018.²³³

607. He was shown the medical notes from the Austrian facility which the Testator attended in February 2019. He then said that the words the Testator had used had been simple words that he absolutely could understand. He would stay with the Testator 30 to 35 days in a year and had more than 35 conversations like this.²³⁴ The Austrian facility notes were put to him at some little length. Whereas in his Witness Statement he had said that the Testator was able to perform many daily activities on his own from the beginning of 2019, he said in cross-examination that he might have meant the beginning of 2020. He said: “[s]ome of the years get muddled, you know, after so long.”²³⁵ He rejected the accusation that he had embellished his account of the Testator's condition.

608. Further cross-examined he said that from 2019, that is from Chicago, until he saw the Testator next, which would have been the end of 2020, he saw more improvement which continued through 2021.²³⁶

609. He was also cross-examined on the Chicago facility clinical notes and referred to Sachit Gupta's unchallenged evidence that in June 2019 when he was in Chicago the Testator “was not in a condition to speak or form his own sentences”. Karan did not agree that that was an accurate description of his condition.²³⁷

610. He was challenged on a conversation he said he had had with the Testator in the middle of 2019 about the creation of a foreign exchange pricing engine for a bank. He said he told him about the project and even he was shocked at the Testator's learning.

611. He was referred to Dinesh Giani's Witness Statement. Dinesh Giani had seen the Testator much more regularly from June 2021 until November 2021. He was referred to the topics discussed at those meetings as explained by Mr Giani. This was said to be a different account of the Testator's supposed discussion of business matters. Karan responded that he was not there for those. It was put to him that there are three inconsistent accounts about these supposed business meetings and it was put to him that they never happened.

612. The Defendant's Closing Submissions described this witness as “a straightforward witness with an apparent desire to assist the Court”. He had been able to explain that he had spent approximately 30 to 35 days a year with the Testator following the stroke,²³⁸ during which time he saw him learn to eat food independently,²³⁹ discuss a foreign exchange project,²⁴⁰ play an Indian variant of poker,²⁴¹ choose a car²⁴² and attend a presentation on the future of KG International.²⁴³

613. The Defendant contended that Karan's account of how the Testator's communication developed from non-verbal at the end of 2017 to two minute exchanges at the end of 2018 and longer discussions in 2021, was of particular value.

614. The Claimant's Closing Submissions characterised Karan's evidence as the most prone to embellishment of the whole trial. It was said to be demonstrably unreliable and to be approached with the utmost caution. I accept that Karan's evidence as it appeared from his Witness Statement portrayed a rosy picture of the Testator's condition that does not gel with that of the other witnesses. Some of that can be put down to memory failures and some to exaggeration in the Defendant's cause. I do accept however, that Karan did observe a development of communication and significant improvement by 2021.

First Witness Statement of Dixit Jain dated 12 September 2025

615. Dixit Jain is a Chartered Accountant who had moved to Dubai in 2013. In 2018, through The Tax Experts DMCC he was engaged by KG International to assist with the tax returns of the Testator and Asha. Mr Dinesh Giani, presently the Chief Financial Officer of KG International had approached him on behalf of KG International at that time. He has helped Asha file her personal income tax returns from 2018 until the present day.

616. At some point after 2018 but before the outbreak of the COVID pandemic, he met the Testator at his office in Jebel Ali. He did not know anything about his stroke at the time. According to Mr Jain he was “talking fine” in the meeting but was in a wheelchair. Although it was the first time he had met him, he was put at ease by the Testator.²⁴⁴

617. He did not meet the Testator in person on any other occasion. In and around September 2019 he conducted a review of the Testator's tax files to check if the applicable tax deduction at source requirements pursuant to the laws of India in respect of the sale of a property in India, had been duly complied with. The filings were completed by a different chartered accountant.

618. In November 2020, Dinesh Giani asked him to assist the Testator and Asha to make a DIFC Will. He used the standard will template available to the public. He was able to carry out their instructions without too much difficulty because the template was easily available and the Testator's requirements were straightforward.

619. Following the preparation of preliminary drafts, he sent them to Mr Giani for confirmation from the Testator and Asha and further instructions. He continued to assist in making minor revisions of the draft wills as per the instructions which he received from Mr Giani on behalf of the Testator and Asha. And subsequently, by way of reaction to the comments of the DIFC Will Registry Team, until the drafts were finalised. He has previously assisted other clients using standard DIFC Will templates.

Cross-examination of Dixit Jain

620. Dixit Jain was referred to the Austrian facility notes of February 2019 and the evidence of Mary Klien covering the period between 25 June 2020 and 8 July 2021. Mr Jain was referred to his evidence for a meeting sometime after 2018 at the Testator's office in Jebel Ali when he was “talking fine but was in a wheelchair”. Put to him that he could not have been talking “fine” at the meeting in 2019. He said:

On a further question he said he did not meet the Testator for a long time, it was hardly a few minutes.²⁴⁶

621. The cross-examination of Mr Jain was limited. In Closing Submissions the Claimant maintained that he was not a truly independent witness as he still conducts work for both KG International and for Asha, having been instructed since 2018. I have no reason to believe that he was exaggerating his impressions. There was sufficient communication from the Testator to elicit from him a sense that he was privileged to be in his presence. I generally accept his evidence.

First Witness Statement of Sachin Talwar dated 8 September 2025

622. Mr Talwar is an Executive Director at InCred Global Wealth Limited in Dubai. He joined InCred in August 2025. Before that he was a Private Banker and Director at HDFC Bank in the Dubai International Financial Centre. While he worked there he was the banker for the Testator. He said he knew the Testator's family in Dubai well. He used to manage multiple bank accounts for them and used to interact with the Testator before his stroke for business purposes and also at social events.

623. He met the Testator in his office in Dubai a few months after the stroke. That was in January 2018 when he went to get the Testator's signature updated for the bank record. At the time the Testator had a tube in his throat but greeted Mr Talwar with a nod when he inquired about his health.

624. Mr Talwar explained to the Defendant and the Testator the process of a changed signature as required by the bank. He then took the document to the Testator and pointed him to where the signature was required. The Testator signed at the exact place. He found it necessary, as a result of his condition, to change the hand he signed with because now he was signing with his left hand.

625. Mr Talwar next met with the Testator in the second half of 2018. He said he was very quiet but when he approached him he gently greeted him and said “Hi Sachin, how are you?”²⁴⁷ but in a strained voice. He appeared to be able to understand, communicate and act independently. In general he only needed support for physical actions which involved the use of both of his arms or his full body. He appeared to be in good spirits.

626. Mr Talwar used to visit the Defendant at his Emirates Hills residence every three or four months for regular bank work. During that time he met the Testator and they exchanged pleasantries for a short while before he continued working with the Defendant. He observed that by the end of 2020 he saw the Testator walking without any support. He stated that in all his interactions with the Testator after his stroke, he was able to understand what Mr Talwar was saying and communicate and act independently with little or no prompting or reminding even when we were with family members.²⁴⁸

Cross-examination of Sachin Talwar

627. In his oral evidence in chief, Mr Talwar said that he had met the Testator in 2018 to obtain a signature change but on reflection although he had met him in 2018, the signature change meeting was in the second half of 2020.²⁴⁹ He was referred in cross-examination to medical notes from the Austrian facility dated February 2019. It was put to him that he was suggesting in his Witness Statement concerning the meeting in 2018 that the Testator was in fact better than he was. He denied that.

628. As to the visits to the Testator at his Emirates Hills residence, these happened every three or four months for regular bank work. At the time of the trial he was still a client at the Bank. He had observed the Testator walking without any support at the end of 2020. He was just taking a few steps. He thought there was a cane. Two nurses, Anil and Simoth, were close by attending to him all the time. They would exchange pleasantries. They were along the line of “Yes, how's your family? Markets are doing fine.”²⁵⁰

629. I am unable to rely upon the evidence of this witness so far as it relates to his meeting with the Testator in 2018. His factual observations of the Testator in 2020 may be accepted albeit they do not support an inference of a general unassisted ability to communicate on the part of the Testator. There is, however, a degree of consistency with the evidence of the next witness, Mr Babariya, in that regard.

First Witness Statement of Badal Mahendrakumar Babariya dated 3 October 2024

630. Mr Babariya is one of the witnesses to the Disputed Will. He had known the Testator for more than 20 years and they were close friends in Dubai. He stated that he was never aware of any coercion or pressure applied against the Testator by anyone in his presence, nor did the Testator show any signs of being pressured to enter into his last will. He said that he and the Testator had engaged in many conversations and personal gatherings where he was able to personally interact with him without any apparent limitation to his mental acuity.

631. Mr Babariya said he was a personal witness during the signing of the Will before an authorised Will and Probate Registry DIFC Court Officer on 16 February 2021. At no time did the Testator appear mentally unwell or unable to communicate with the Will and Probate Registry DIFC Court Clerk. He then made some assertions by way of opinion as to the Testator's mental state. Those assertions, being matters of opinion, I do not have regard to them.

Second Witness Statement of Badal Mahendrakumar Babariya dated 4 September 2025

632. This Second Statement was at least in part repetitive of what appeared in the First Witness Statement. Mr Babariya visited the Testator after his stroke while he was still in the ICU in hospital where he had been for about a month. He visited the Testator quite a few times. Mostly the Testator was sleeping. On one occasion Mr Babariya said “Hello Kedar ji, Badal here.” The Testator responded by holding his hand tightly. He visited the Testator regularly between his move from the hospital to Emirates Hills and the end of 2017. He said that the Testator became emotional during his visits and sometimes cried.

633. Mr Babariya observed a gradual improvement in the Testator's speech following the removal of the PEG Tube from his throat in 2018. After his visit to Chicago he became better at speaking and seemed more comfortable. After his visit to Austria he was able to walk with minimal support.

634. In 2018, Mr Babariya built a special chair for the Testator. It was specifically designed for his body measurements and the height of the seat and the armrests, as well as the size of the seat, were made specifically for him. This chair used medicated foam.

635. Mr Babariya said he saw the Testator about three times a month after his stroke. He remembered playing board games with him, his friends and family. In the last quarter of 2019 he was building a home for the Testator in the Dubai Hills. The Testator used to visit the site often with family members to see the progress of the villa. At one stage, around the end of 2020, the Testator expressed concern about the speed of the project. Mr Babariya said to him “It will take around three or four months to finish this work”. The Testator replied “No, looking at this, it will take six to eight months to finish”. He referred to the commitment of the family members.

636. As to the execution of the Will, he remembered that on the day the Will was registered the Testator was his usual self, speaking at his normal pace and responding well to questions asked of him. He was also correctly following instructions. During the registration he observed the Testator clearly responding to confirmations sought by the Wills Registration Officer.

Third Witness Statement of Badal Mahendrakumar Babariya dated 6 October 2025

637. In his Third Witness Statement Mr Babariya referred to the Claimant's assertion in his First Witness Statement of 13 November 2024 at paragraph 12, that the property at J8-Emirates Hills was “meant to be an investment asset as part of [the Testator's] real estate business and [the Testator] intended to sell it on”. Mr Babariya said he was involved in the development of the property. It was his understanding that it was intended to be a family home for the Defendant and Nidhi and their children, rather than an investment property. He remembered the Testator saying to him that the property would be used by the Defendant and his wife as their primary place of residence. At the time he took over the project he dealt with the Defendant and Nidhi who made various suggestions about the construction and design of the villa. Further, the Testator instructed him to keep the left side of the villa for himself and Asha as a provision, as at that point in time it was not his intention to stay in the villa. That, however, was where he moved after being discharged from hospital in November 2017.

Cross-examination of Badal Mahendrakumar Babariya

638. Mr Babariya was cross-examined about his recollection of the state of the Testator after his stroke in January 2018.

639. He was referred to the evidence of Mary Klien that in June 2020 the Testator's speech was minimal. He responded that after the stroke, for probably one and a half years, the Testator was speaking very small words but gradually it turned into a few more words and then sentences. Gradually it was getting better and better.²⁵¹

640. His interaction with the Testator was on a weekly basis. Whenever Mr Babariya entered the Testator's room he would always say some words, recognise him “down the line he was talking properly with me even regarding my project also”. Asked about the Testator's speech after his return from Chicago, Mr Babariya said that he did not remember exact months or years but he was getting better and better — other than the speaking — was understanding more and on context and replying back.²⁵²

641. Clinical notes from Austria were shown to him, including a reference to his risk of falling. He said that after Austria there was always one person behind him but that the Testator was trying very hard to walk by himself. When Mr Babariya visited home the Testator would mainly walk from his bedroom into the dining room. Asked about board games, he said the Testator did not require any help, he was playing by himself. Asked by the Court whether he got physical assistance in terms of moving something on the board or throwing dice, Mr Babariya said that the Testator was doing it by himself.²⁵³

642. Mr Babariya was asked about his testimony that the Testator had expressed concern about the speed of the villa project. He had told the Testator the project would take three or four months. The Testator himself however replied “considering my past experience with the work, no Badal, it is eight to nine months”. He said something like that.²⁵⁴ At the end of 2020 he was talking in small sentences, small words and extended words.

643. Asked about the Disputed Will, Mr Babariya remembered the online meeting during which the two wills were signed. He was at his home because of COVID.²⁵⁵ It was put to him that the Testator had only said the word “no” once in answer to the question “do you have any questions” and that he had repeated that word again when prompted to speak more loudly. Mr Babariya did not remember the particular word, but he thought that the Testator and Asha were going through the necessary procedure required by the lady who was asking on the video.

644. Asked about his Witness Statement evidence that the Testator was his usual self, speaking at his normal pace and responding well to questions asked of him, Mr Babariya said:

645. Mr Babariya denied the proposition put to him in cross-examination that the Testator was disengaged from what was going on. He said:

646. Asked if he knew why no medical opinion had been obtained at the time the Will was executed, he said that before the Will he had met the Testator several times, played games with him and was not aware that when someone was signing a will it was necessary to take a medical opinion “[h]e was according to me, perfectly fine.”

647. I accept Mr Babariya's evidence about the Testator's ability to walk short distances. I accept also that the Testator had participated in board games. I accept that at the end of 2020 he could communicate in small sentences and words. His evidence against the alleged disengagement of the Testator from what was going on when the Will was executed was observational and can be tested by reference to the video of that event, a significant portion of which was taken up with Mr Babariya's difficulties in putting his signature on the Will as a witness. As appears from his responses in cross-examination at that time of the making of the Will the Testator's verbal communication was limited to what Mr Babariya called short sentences and small words.

First Witness Statement of Dinesh Giani dated 3 October 2024

648. Mr Giani is the Chief Financial Officer of KG International FZCO, a position he has held for the last six years. As part of that position he acted as a Financial Advisor to the Gupta Family. He said he was present during many meetings until 2021 with the Testator. He expressed an opinion as to the sound mental wellbeing and capacity of the Testator during the preparation and execution of the Disputed Will.

649. His opinion is not evidence of the fact, but it may be taken as a statement that he did not observe the relevant impairment. He said he would not have carried out or undertaken any instructions on the part of the Testator if he had been unsure of his mental capacity to understand the instructions he was giving as it related to financial matters, transfers and undertakings.

650. He made repeated assertions in his First Witness Statement as to the soundness of the Testator's mind. Those are conclusionary statements not referenced to particular factual observations.

Second Witness Statement of Dinesh Giani undated

651. This Statement related to the Defendant's application for security for costs and is not material for present purposes.

Third Witness Statement of Dinesh Giani dated 11 September 2025

652. In this Statement, Mr Giani described meetings with the Testator prior to 2020. Their first meeting was in September 2018 on the Testator's birthday. In 2019 he met the Testator on two or three occasions in the fourth quarter. One on the Testator's birthday, another was the Diwali celebration in the KG International office in October 2019. Their interaction was limited to an exchange of pleasantries. He described the Testator's speech as “not very clear” and noted that he was using a wheelchair.

653. Mr Giani then described meetings with the Testator in 2020 and afterwards. Between June 2020 and November 2021 he saw the Testator much more regularly. In that period the Testator came to the KG International office very often — that is between two and four days a week.

654. During this period Mr Giani held meetings with the Testator every time he came to the office. Each of them would last between 15 and 90 minutes. The Testator would walk into the room with a walking stick, not using a wheelchair. He had a dedicated personal helper or attendant to assist him. Among the topics they discussed were how the Testator's real estate portfolio was performing. Mr Giani provided him with updates based on information about current market trends and property prices from real estate agents in Dubai. They also discussed whether the Testator should sell any of his investment properties and, if so, at what prices. At one stage he discussed with the Testator the sale of a unit in Dubai Hills. He mentioned the price of AED 3.1 to 3.2 million. The Testator approved that valuation and told him to proceed with the transaction.

655. They also discussed the progress of legal proceedings in India. The Testator was involved in civil and criminal proceedings in which he was pursuing recovery of outstanding sums due to him.

656. The Testator was at one point required to give an online statement to an Inspector of the Economic Offence Wing in Delhi. Consistently with his belief as to the Testator's capacity, he had on 16 August 2020, emailed the Inspector to confirm his client's readiness to testify as and when required. The emails reflected his understanding and belief then of the Testator's capacity. During their meetings, the Testator's condition seemed to have improved from earlier occasions when Mr Giani had met him before 2020. He could eat and drink on his own. His speech, while occasionally jumbled, was much clearer. From the second half of 2020 onwards he did not require a wheelchair. He could walk independently with a temporary stick and he needed only limited assistance from an attendant. He observed the Testator writing with his left hand, writing letters and signing documents relating to his banking arrangements.

657. In relation to the 2021 DIFC Will, he was asked by the Defendant to make arrangements for the registration of a new will for the Testator and his wife. He called Dixit Jain and requested him to make the Defendant the 100% beneficiary on both wills. This was a mistake. It was corrected by Mr Jain. He referred to the Declaration signed by the Testator on 6 January 2021. Mr Giani asserted that the Declaration was correct to the best of his understanding. The Testator had received no legal advice on the will which he was registering. Nor did he have any advice or input from any third party.

658. When the Will was executed Mr Giani was seated next to the Testator who arrived shortly before the video call. An Officer from the DIFC attended online. The Officer asked the Testator about the contents of the draft will and the Testator provided his confirmation. He signed the Will followed by Mr Giani and Mr Babariya.

659. Mr Giani was unaware of any prior wills.

Fourth Witness Statement of Dinesh Giani dated 9 October 2025

660. In this statement Mr Giani referred to the Claimant's assertion in his First Witness Statement that he had only discovered during these proceedings that the India Power of Attorney had been revoked. Mr Giani said that was false. On 15 April 2022 he had received a notice from the lawyers then instructed by the Claimant referring to the “Deed of Revocation” being “fraudulently executed”. The letter was addressed to Asha, Rohit and Nidhi Gupta, to Vice-Consuls of the Consul General of India in Dubai, himself and Tanuj Rahlani, Relationship Manager at the ICICI Bank, Gurgaon. On this basis it was said it could not be the case that the Claimant only learned about the revocation of the Indian Power of Attorney after the commencement of these proceedings.

Cross-examination of Mr Giani

661. Mr Giani confirmed in cross-examination his Witness Statement evidence that when he met the Testator for the second time at a birthday celebration in September 2019 and again at a Diwali celebration in the following month that their interaction was limited to an exchange of pleasantries, that the Testator's speech was not very clear and that he was using a wheelchair.²⁵⁷

662. On a request by an Indian Police Officer, Inspector Kumar, for an interview with the Testator in relation to the investigation in India concerning Indian litigation, Mr Giani sent an email including a request that he be allowed to “aid and assist [the Testator] during the video conference and convey his answers to the queries and questions posed by you.” This was said to be because the Testator “can only provide short answers to questions and cannot strain himself in speaking too loudly into a microphone.”²⁵⁸ Cross-examined on this email, Mr Giani said that at the time the Testator “was not in a position to form” sentences of eight to ten words and could only “say three, four, five words maybe maximum”.²⁵⁹ This cross-examination was relied upon by the Claimant as clearly indicating, along with other evidence, that the Testator remained a severely disabled man into the second half of 2020 who required considerable assistance from others who continued to take decisions on his behalf.

663. In relation to his evidence that from June 2020 he began having meetings with the Testator in the KG International offices between two and four times a week, Mr Giani said in cross-examination that the Testator was not speaking in full sentences at these alleged meetings, that “it was more me briefing him” and that the Testator would give ‘yes' or ‘no' answers and might say “three words or four words”.²⁶⁰ Mr Giani said in cross-examination that he used to seek the Testator's opinion whether they should keep a particular property or sell another. He responded with ‘yes' or ‘no' answers. When asked whether that continued with all of the meetings that Mr Giani had with the Testator into 2021, he replied “Um – so that was most of the times, but sometimes he used to say like three words, or four words also I have heard from him.”

664. In relation to the Declaration, he agreed in cross-examination that he had typed in the Testator's name and the date at the bottom of the document. He agreed that neither the Testator nor Asha had received any legal advice about the Will.

665. As to the statement in the Declaration “I confirm that I have drafted the Will myself with no input or advice from any third party”, he said that that was not his draft, it was what had been received from the DIFC. It was put to him by the Court that the statement was not correct. He said:

666. In answer to a further question from the Court, he said:

667. Asked whether he had explained the document to the Testator before he signed it, he responded that he had “briefed him”. He did not read the document out word for word. Nor did he have the Testator read the document for himself.

668. He said it was his practice if taking a document for the Testator or even the Defendant to sign, he would brief them on the document, they would not read it word for word. He continued to insist under cross-examination that the Declaration was not false because “formulating the contents of the will is what it [sic] intended to be drafting in this document”.

669. He did not feel it was necessary to have a registered Will Draftsman visit the Testator. He denied the suggestion in cross-examination that the reason he did not do that was because it would have been obvious to a registered Will Draftsman that the Testator did not have capacity to give instructions in relation to a new Will.²⁶³

670. As to his involvement as a witness, he had originally said in his First Witness Statement that he was asked by the Testator to fulfil that function. That was amended to a statement that he offered to be a witness. When cross-examined about the execution of the Will he remembered the Authorised Officer explaining the contents as two wills were being recorded and executed that day. She asked about the contents of the Will and to his memory the Testator confirmed.

671. Challenged on the extent of the Testator's participation in the process, he said that he clearly remembered that there was a woman who was asking questions and explaining the contents of the Will and that the Testator provided his confirmation.

672. He said that the Testator had arrived five or ten minutes before the video meeting and that he, Mr Giani, briefed the Testator and Asha about the wills and told them that the execution of the Will was going to happen.²⁶⁴ He agreed that he had not mentioned the five or ten minute briefing meeting anywhere in his four Witness Statements.²⁶⁵

673. He was also cross-examined about his involvement in responses to an inquiry about the Testator's tax return for the year in which he had suffered the stroke. In this connection he communicated with Arnil Khatri, an accountant who dealt with some of the Testator's tax affairs in India. In an email to Mr Khatri dated 5 April 2021, he explained the Testator's health situation by reference to the stroke he had suffered in September 2017. He agreed that he had been highlighting that there had been obvious difficulties in compiling all the necessary documentation for the filing of the Indian tax return for that year.²⁶⁶ It was put to him that at the time of his email to Mr Khatri, if the Testator's condition had improved he would have been able to deal with the tax investigation himself. The answer was that Mr Giani was managing this and would not bother the Testator with these things.²⁶⁷ It was his responsibility to do all of that.

674. In relation to the Claimant's request for a copy of the death certificate, he denied that the Defendant had asked him to lie about not having the death certificate. The Defendant had told him not to provide a copy of the death certificate or any other document to the Claimant because he was threatening to “go legal”.

675. On important points Mr Giani's evidence reflected an affiliation with the Defendant's camp. He did, however, make concessions in cross-examination particularly in relation to conduct of business meetings he had with the Testator and the nature of the exchanges at those business meetings. His justification of the patently false Declaration may have reflected an understanding of the concept of ‘drafting' a will of which he may have convinced himself. It was, however, quite implausible.

676. The Claimant sought to stigmatise Mr Giani's evidence as that of “a man who is prepared to do almost anything for his boss”. Since joining KG International in 2018, he had since then always worked directly for the Defendant, with whom he had spoken almost every day. He also did personal work for the family. He was plainly the Defendant's “right hand man”.

677. The Claimant contended that there was evidence in Mr Giani's Witness Statements that was wrong and misleading:

678. The Defendant by contrast characterised Mr Giani as “a scrupulous and honest witness”. It was submitted that his evidence would be of most assistance to the Court in relation to the Testator's capacity to understand his financial and business matters from June 2020. Mr Giani was clear that the Testator would walk into his KG International office — “maybe a good 20, 25 steps … with the help of a stick”²⁶⁸ and with Anil behind him. His evidence was also said to assist in understanding how the Disputed Will came to be drafted. It was likely that he received oral instructions to draft wills for the Testator and Asha from the Defendant. In the first draft there was an error. As to the Declarations signed by the Testator and Asha regarding the wills, he had explained that he thought they had drafted the Will “because they understood the contents, the choice of beneficiary, the choice of substitute beneficiary and the choice of executor”.

679. I accept Mr Giani's evidence in relation to the execution of the Will in so far as he said that he gave an explanation of its contents. I accept that the Testator had been told about the contents of the draft Will and that at the time of its execution he confirmed his understanding of it by answering in the negative when asked if he had any questions following the explanation of the Willl by the Court Officer.

Witness Statement of Mary Klien dated 9 September 2025

680. Mary Klien is Head of Speech and Language Services at the Developing Child Centre in Dubai. She is licensed to practice in the US as a Speech and Language Pathologist and as a Speech and Language Therapist in Dubai.

681. Between 25 June 2020 and 8 July 2021, she provided speech and language therapy to the Testator. They had between one and three sessions a week. Each lasted an hour. All were conducted online via Zoom so she never met the Testator in person. Her services were arranged through Nidhi Gupta.

682. When she first began therapy with the Testator his speech was minimal. He used simple greetings like “Hi” and “Bye”. For the most part he would respond to questions or statements with single word productions. In the medical reports which she saw, he was diagnosed with dysarthria, a speech sound disorder which occurs as a result of neurological injury of the motor speech system. It is characterised by diminished articulation of speech sounds. He was also diagnosed with paraphasia — speech errors were sounds or syllables are substituted, switched or rearranged, resulting in a word that sounds similar to the intended word but is inaccurate.

683. Ms Klien said that with regard to his speech, there were consistent improvements over time. She worked on maximising lung volume for structured and spontaneous speech tasks and facilitating the speed, strength and range of motion of the articulators to improve speech intelligibility and to facilitate conversational speech.

684. According to Ms Klien, the Testator demonstrated the ability to follow through a variety of tasks that were requested. Occasionally they worked on auditory and reading comprehension tasks. One of those involved completion of paragraphs. The Testator was shown on screen paragraphs containing intermittent blanks where words had to be formulated. He was able to generate the appropriate word for each blank so that the paragraphs were logical and made sense. He also successfully gave appropriate responses to a reading comprehension exercise focused on understanding short paragraphs that were six to seven sentences in length.

685. During their sessions the Testator developed the ability to verbalise five to seven word sentences with articulatory accuracy on a single breath cycle, which was a significant improvement. Every few sessions the length and complexity of the tasks requested increased.

686. It may be observed that the improvement in speech ability is consistent with an underlying cognitive ability to understand the instructions that had to be followed to improve the mechanical process of speaking.

687. Ms Klien was not cross-examined. I accept her evidence. It is of some importance as providing support for a degree of improvement in the Testator's communication in 2020–2021.

First Witness Statement of Sanjay Jitendrakumar Shah dated 3 October 2024

688. Mr Shah has personally known the Testator since 1985. He and Mr Shah's father were close personal friends since 1976. Mr Shah was assisted by the Testator to come to Dubai in 1997 where they established a business partnership and company in 1999, which is operating to this day. He was a witness of the 2016 Will.

689. He asserted that throughout their close personal relationship he consistently found the Testator to be mentally stable. He interacted with him on a weekly basis regarding personal matters up until his passing in December 2021.

690. He was aware of the claims that after his stroke the Testator was mentally unwell or unable to understand his surroundings or wishes. Based on his personal experience, having visited the Testator on a weekly basis following the stroke and continuing to receive his advice and mentorship, these claims did not align with his observations that the Testator was of sound mind.

Second Witness Statement of Sanjay Shah dated 8 September 2025

691. This was in part repetitive of the first, but with more elaboration. It contained some observations about the relationship between the Testator and Asha and family. His interaction with the Claimant was minimal although he had met him a few times. He referred to conversations with the Testator about the time of the 2016 Will that he felt he had already given a lot to both of his sons. He wanted to protect Asha. His intention was ultimately that all his Indian assets and liabilities were to go to the Claimant and the Dubai assets and liabilities to go to the Defendant.

692. Post the 2017 stroke and rehabilitation programs, he noticed, particularly after the Chicago session, meaningful improvements in the Testator's condition. His mobility and speech were better. By 2019 he was able to walk on his own with the aid of a walking stick and only minimal assistance.

693. Throughout 2019 as the Testator's speech improved they spoke about business matters. Mr Shah used to brief him on what was happening in the business and take advice where he felt stuck. He gave as one example the rise of steel prices in China in 2019 and asked the Testator if they should overstock or not. The Testator suggested that they should not buy too aggressively but rather start selling stock more at a higher price and wait for price stability before making a larger bet. On another occasion when Mr Shah was concerned about a build-up of slow-moving stock and was thinking of liquidating at a loss, the Testator agreed with this strategy. Mr Shah also sought personal advice from the Testator. In September 2020 he had to decide whether to move his home from the Dubai Marina to the Dubai Hills. The Testator encouraged him to move to the Dubai Hills saying that it was a better investment and a good community. He acted on that advice.

694. Mr Shah also played cards, board games and Ludo with the Testator which the Testator could win without any assistance. They sang together because his memory was good for older Hindi songs. While initially they met at the Emirates Hills residence, they met at other locations from 2019 onwards as the Testator's recovery progressed.

695. There was reference to the support which the Testator received from the Defendant and Nidhi and their children and from Asha.

696. Mr Shah was not involved in the preparation of the 2021 Will. He was asked by the Defendant to be a witness but was unavailable on the day because of personal commitments.

Cross-examination of Sanjay Shah

697. Asked if the Testator was “a very different man after his stroke …”, Mr Shah said it was “quite natural that after a stroke, a person would become a bit different”.²⁶⁹ He was cross-examined on observations made in clinical notes during the Testator's rehabilitation stay in Austria in 2019. He agreed that in 2019 through to the time of his death the Testator “used to keep a wheelchair with him whenever required … For safety anchor.”²⁷⁰ He maintained his evidence-in-chief however that the Testator was able to walk on his own with a walking stick with minimal assistance.

698. Mr Shah disagreed emphatically with the suggestion that in a video recorded visit to his home in July 2021, the Testator “was not aware of what was going on around him”. He characterised that statement as “a lie”.

699. He agreed that the Testator used to speak “in broken words”.

700. Challenged about an account he gave of discussions between himself and the Testator concerning steel prices, he said:

And asked if they should purchase new stock, the Testator would answer “yes” or “no” or “[g]o ahead and sell it”.²⁷¹

701. It was put to Mr Shah in cross-examination that his evidence was untrue and that he had been asked to provide it by the Defendant. He said he had nothing to do with the Defendant.²⁷²

702. In relation to their discussions about whether he should buy a home in the Dubai Hills — the Testator's responses were “yes” or “no”. He was able to speak a few words but not longer words”.²⁷³

703. Mr Shah said that when he played Ludo with the Testator, the Testator could move the pieces on the board game himself.²⁷⁴ He agreed that when they went out for coffee one of the Testator's nurses was there for safety and normally another member of the family would come along.²⁷⁵

704. The Claimant in Closing Submissions asserted that Mr Shah was not an independent witness. He was a director of SNK Rolling Bearings Ltd, previously a joint partnership with the Testator. Asha is now a partner of that business.²⁷⁶

705. Mr Shah's testimony was presented through an interpreter. That brings with it the difficulties in communication that are inherent to interpreted testimony. Nevertheless, I accept Mr Shah's evidence that it was possible for him in 2019 and beyond to conduct conversations with the Testator with the use of leading questions to which the Testator would reply “yes” or “no” or with other short combinations of words. I also accept, because it is consistent with other evidence, that the Testator did participate in Ludo with the witness, albeit it seems likely he needed assistance with the physical movement of game pieces.

First Witness Statement of Shiva Prasad Kaphle dated 11 September 2025

706. Mr Kaphle joined KG International as a Driver in September 2018 and was responsible for driving the Testator. This involved taking him to his medical appointments and to meet various people for coffee or lunch and for other meetings and site visits. He was also responsible for picking up the Testator's two attendants Anil Alias and Simoth Sasi for their daily shifts. The name he had for the Testator was ‘Baba'.

707. According to Mr Kaphle from the time he joined KG International until the Testator's death, the Testator's overall health condition improved. At first he was in a wheelchair but began to walk again, to exercise better, to go to the office more often and to visit friends and business associates for coffee. He saw him every day. He was always greeted and asked about his wellbeing. In the evening he always said goodbye when Shiva left and finished his duties for the day.

708. The Testator had some difficulties with walking and some eye sight issues but Mr Kaphle found him mentally sound and alert. He could remember many aspects of his day-to-day life, including his daily timetable and appointments. He knew the days on which he would go to the rehabilitation centre, the times of his doctor's appointments and the time he was scheduled to visit the office. There were occasions when Mr Kaphle would forget, but the Testator would remember and remind him.

709. The Testator liked to make his own decisions. He fixed his timetable for visits to the rehabilitation centre and his doctor's appointments with Nidhi. He also liked to be punctual.

710. In the last quarter of 2019, the Defendant and the Testator were involved in making a new home for the Testator in the Dubai Hills. Mr Kaphle took him on site visits several times between 2019 and 2021. Even though it was hot and uncomfortable, the Testator appeared to be interested and watched the development with great attention.

711. Sometimes the Testator would specifically ask to go to the office of Sanjay Shah or to his own office in downtown Dubai and he would be taken there. He also took the Testator to the offices of KG International on many occasions when he met employees and staff members. That practice started in the middle of 2020, at which time he was walking on his own.

712. Mr Kaphle remembered the Testator as being aware of, and interested in, the activities of his family members. He would know if Asha was at home or had gone out and even where she had gone.

Cross-examination of Shiva Prasad Kaphle

713. Mr Kaphle remembered the Testator being in a wheelchair when he began his employment. When he returned from Chicago he used to walk with a stick.²⁷⁷ It was put to him that the Testator still used a wheelchair. Mr Kaphle responded “No he tried to use a stick for whenever he had to walk. And when he had to sit, only at that time we used to have him sit in the wheelchair.”

714. Mr Kaphle said that when he commenced his employment, the Testator only used a wheelchair but that later a railing was installed on the steps near the main door to the villa. He needed to use that railing when he came down. Mr Kaphle used to bring the stick for the Testator and he used to walk using that stick.²⁷⁸

715. One of his carers, Anil or Simoth, would go with him on visits to the doctor or to the centre where he did exercises. A nurse would always accompany him from the back. It was put to Mr Kaphle that at the end of 2020 the Testator needed a lot of help from other people. Mr Kaphle said “No he did not require much help. He did not require many people to help. Like he would go to the doctor, the hospital, the centre, the office.”²⁷⁹

716. Mr Kaphle was a credible witness and I accept his evidence including his observations of the Testator's ability to walk with a stick at the end of 2020.

General conclusions concerning the evidence of the lay witnesses

717. It is a truism of some antiquity that, in assessing testamentary capacity, the opinion of those who have witnessed the Testator “is usually for various reasons of little weight”²⁸⁰ And while the opinion of attesting witnesses that the Testator was competent are not without some weight the Court must judge from the facts they state and not their opinions²⁸¹ These propositions are not controversial and reflect the approach I have taken to the testimony of the various non-expert witnesses called by both parties.

718. Non-medical observations by way of opinion about the Testator's condition are disregarded. Observations about what he was seen to do and be able to do are evidence of the facts and can be weighed albeit the credibility of each witness may affect the weight to be given to his or her uncorroborated observations.

719. Evidence from lay witnesses about the Testator's condition over the years following his stroke seemed to correlate, to some degree, with the family camp with which the witnesses were associated.

720. The factual observations of witnesses about the physical and communicative behaviour of the Testator differ in their significance according to the period covered by the observations — from shortly after the stroke to the date of execution of the Disputed Will. The factual observations in this case may be considered against clinical notes about the condition of the Testator from time to time. Those notes, of course, also have to be treated with some caution. They reflected evaluative judgments made according to processes for the most part undisclosed and by persons observing the Testator at particular points in time. They do not necessarily reflect a variable trajectory of post-stroke recovery over a period of some years.

721. A factual baseline was established by a number of propositions upon which the medical witnesses, Professor Burns and Dr Arjundas agreed and which I accept:

722. Their major point of disagreement was on the level of improvement of the Testator's cognitive capacity and executive function following his stroke. This requires consideration of my findings in relation to the evidence of lay witnesses.

723. A summary of my findings already made concerning the testimony of the various lay witnesses follows:

724. Where I have accepted the evidence of lay witnesses, that acceptance is in most cases qualified by recognition of the human tendency of witnesses involved in a family dispute to construct, albeit not dishonestly, narratives reflecting their particular perspectives and sympathies. Their evidence is therefore to be considered alongside the other evidence to which reference has been made in this judgment.

725. On my view of the lay evidence, it is probable that at the time he executed the Disputed Will, the Testator's observed behaviours, limited as they were by his physical disabilities including communication limitations, were consistent with the claim that he had the capacity to engage in a limited way in business discussions and to some degree in family activities, particularly some board games, which he could not have done had he lacked the level of cognitive capacity necessary to support that level of intellectual engagement.

The Testator's Letters

726. There were a number of handwritten letters in evidence said to have been written by the Testator in the last seven months or so of his life which were disclosed by the Defendant in these proceedings.²⁸²

727. The handwriting on the letters is clear but consistent with physical difficulty in writing.

728. One letter congratulates his wife on her anniversary. It included the following text:

729. A letter to Karan was in the following terms:

730. Another letter to his wife, which appears to be dated 24 November 2021 was in the following terms:

731. A letter to the Defendant was in the following terms:

732. In what appears to be a note dated 6 October 2021, the Testator wrote:

733. A letter dated September 2021 to the Defendant showed an awareness of the Defendant's health condition. It was in the following terms:

734. These letters, while to some extent bearing repetition and obvious difficulties with the handwriting, do disclose an awareness and consciousness of family and friends and their circumstances.

The video evidence of the execution of the Will

735. There was a video recording of the Testator and Asha signing their 2021 DIFC Wills. The recording lasted about 28 minutes. The Defendant in his Closing Submissions characterised the sequence shown in that video recording as follows:

736. It was acknowledged by the Defendant that the video did not show the Testator clearly. However, it was submitted that the little that could be discerned from the video cohered with the Defendant's case. The Testator was not distracted or disengaged throughout the 28 minutes. Only once was he asked a direct question, which he answered without prompting. He was also able to hold up his Emirates ID without being prompted.

737. The Claimant referred to the same recording and contended that except for a few very brief moments it showed the Testator sitting passively throughout and not engaging with the process in any way. It was as though the process were happening around him.

738. The recording was said to show clearly that Mr Giani handled the two electronic devices through which his and the Testator's signatures were applied to the Disputed Will. When the time came for the Testator to apply his signature, Mr Giani initially held the device for him and then passed it to Asha who held it for the Testator.

739. I have viewed the video recording. Much of the time of the recording was taken up with the witness Badal Babariya trying to log in to apply his signature to the Will.

740. The Court Officer explained the principal operative provisions in simple language. In my opinion she conveyed the important substance of the Will to the Testator — namely, that he was leaving his entire estate to Asha, that Rohit was the substitute beneficiary and the executor of the Will.

741. The Testator answered “No” when asked if he had any questions and that answer appeared to be unprompted. So far as it was possible to see on the video, he sat up and had his eyes open throughout, including the rather extended process of securing Badal Babariya's witness signature. When all those present were asked at the end of the process if they had any questions he shook his head, again unprompted.

742. The Testator's demeanor and responses were not indicative of a lack of understanding of the process. The video is supportive of a conclusion that the Will as explained to the Testator was comprehensible and that he comprehended it. As to the Claimant's characterisation of his posture as “sitting passively throughout and not engaging with the process in any way”, it is fair to say that the extended and somewhat tedious process of getting Mr Babariya's signature was one which required patience and did not require any engagement on the part of the other attendees. The fact that the device by which his signature was applied was held for him may reflect his physical disabilities. It does not reflect a lack of understanding of the process.

743. Of course, the video evidence of the execution of the Will has to be considered in the context of the other evidence to which reference has been made in these Reasons, specifically the evidence of the lay witnesses where that has been accepted and the evidence of the handwritten letters.

744. It is necessary now to turn to the expert medical evidence called by each party.

Expert evidence going to testamentary capacity

745. The Parties relied upon the expert testimony of two medical practitioners with substantial qualifications in areas of medicine related to the effects of stroke upon cognitive capacity relevant to testamentary capacity.

Claimant's witness: Professor Alistair Burns

746. Professor Burns is an Emeritus Professor of Old Age Psychiatry at the University of Manchester, a position he has held since July 2023. He has a distinguished record in the field. His considerable professional and academic record means that he is qualified to give expert opinion evidence on the cognitive capacities of elderly post-stroke patients relevant to the determination of their testamentary capacity.

747. Professor Burns was asked by the Claimant's solicitors to consider whether the Testator:

748. He was asked to explain two specific entries in the medical notes — the “GCS” score and the “FIM” score. He had also been asked to “…specifically consider the likelihood and evidence of recovery in the period after the date of the Injury and up to the date of the execution of the 2021 DIFC Will.”²⁹¹

749. Professor Burns was instructed that the test which he should apply in assessing the Testator's testamentary capacity at the time of the will in question is that set out in Banks v Goodfellow [1870] 5 LR QB 549. As to that, it may be observed immediately that the question of testamentary incapacity involves a legal conclusion based on factual findings, albeit those factual findings may reflect opinion evidence by qualified experts. That ultimate legal conclusion is not a matter for the expert witnesses.

750. Professor Burns did not see the Testator, but formed his opinion on the basis of documentary material provided by his Instructing Solicitor and audio and video recordings of the Testator dated 28 July 2020 and 16 February 2021 respectively. He was also provided with a medical report of a Fluoroscopic Swallow Study dated 3 July 2019.

751. Professor Burns set out in a table a summary of salient medical notes taken in relation to the Testator. It is convenient to reproduce that summary below:²⁹²

752. Professor Burns said, by reference to the medical history, that the Testator had a significant stroke affecting his right middle cerebral artery and the thalamus.

753. Professor Burns discussed the effects of stroke. The most common blood vessel in the brain affected by stroke is the middle cerebral artery, which is the largest branch of the main arteries of blood supply to the brain. The side on which the blood vessels are damaged results in symptoms and signs on the other side of the body. In right-handed people, the left side of the brain is dominant. He presumed that the Testator, like 90% of the population, was right-handed. He could not find any reference in the medical notes to that effect.

754. A stroke involving the middle cerebral artery can cause physical paralysis (hemiplegia) and sensory loss in the legs, arms and face. A dominant left-sided, hemisphere stroke results in language disturbance. That is to say, the result is either difficulty in understanding language or expressing it or a combination of both.²⁹³

755. A stroke to the thalamus can cause a number of different symptoms including memory impairment, executive dysfunction, decreased alertness, defective information processing and sleep/wake cycle dysfunction.

756. Professor Burns explained the concept of executive function, which comprises three primary components:

757. Professor Burns said that, in the context of testamentary capacity, executive function is critical to effective planning, reasoning, problem-solving and multitasking, which underpins sound judgment. Damage to the thalamus and the frontal lobe can affect executive function.²⁹⁴

758. A widely used tool in neurological assessment of patients with acute brain injury and impaired consciousness is the Glasgow Coma Scale. There are two aspects relating to orientation and confusion. The Testator scored 7 out of 15 on the Scale which, according to Professor Burns, indicated severe impairment and the presence of coma. Without individual scores on the three categories, it was difficult to assess the relative contributions of confusion and orientation but a score of 7 indicated very severe impairment, likely across the three domains. The components of the Glasgow Coma Scale and the score allocated to each of those components were set out in a table incorporated in paragraph 10.12 of Professor Burns' Report. A copy of the Scale is reproduced below.²⁹⁵

759. Professor Burns then discussed the Functional Independence Measure which he called “a simple descriptive measure” developed to assess change over a number of domains.

760. The measure assesses 18 items: 13 motor tasks and 5 cognitive tasks considered basic activities of daily living. These are rated according to the degree of assistance needed. The ratings are maximum, moderate or minimum.

761. The description of the Testator suggested that during his admission there was significant improvement in his eating, some improvement (from maximum assistance needed to moderate assistance needed) in his comprehension and social interaction, but no change in expression, problem-solving and memory (for each of which he needed maximum assistance). Professor Burns noted that when the Testator was admitted for rehabilitation nearly two years after the stroke, his cognition was clearly still impaired. It was recorded that he needed “maximum” assistance with problem-solving, memory and expression of language. There was no real improvement during his admission although there was some improvement in social interaction and comprehension. He had not been given any cognitive testing.²⁹⁶

762. Professor Burns referred to the video and recordings with which he had been supplied. He expressed his caution about drawing conclusions from such recordings for four reasons:

763. He made the point that these were general observations and not specific comments on the particular recordings with which he had been provided.

764. In relation to the video evidence, he observed that:

765. Professor Burns then gave his opinion with reference to each of the four limbs of the Banks criteria for testamentary incapacity. He concluded as follows:

766. On the specific question about recovery from damage caused by a stroke, Professor Burns said that the stroke was clearly a very severe one which caused significant physical symptoms. It necessitated a tracheostomy, mechanical ventilation and the insertion of a PEG.

767. Recovery after a stroke tended to occur in the first few months. The Testator did seem to improve and was described as “stable” on discharge. However, when admitted to the Shirley Ryan AbilityLab, his cognition was impaired. It was difficult to see how there was anything other than marginal improvement in his symptoms. It was unlikely that a return to full cognitive abilities would have occurred having regard to the damage to the thalamus and frontal lobe in particular.²⁹⁸

768. Professor Burns then set out the three ways in which cognitive impairment could affect a person's mental state and therefore testamentary capacity:

769. Professor Burns referred to witness statements filed on behalf of both the Claimant and the Defendant with which he had been provided by his Instructing Solicitor. He summarised them and focused on their descriptions of the Testator's health. It is not necessary to refer to the detail of those summaries here. He concluded, however, that the witness statements if accepted by the Court painted what he called “a slightly different picture of Mr Gupta”. Some suggested that his cognition remained poor since the stroke and that any recovery was marginal. Others suggested that there was a significant recovery in his mobility and cognition. Some said that he was mentally sound after the stroke. Professor Burns observed that recovery and mobility and cognition can take place after a stroke and that there did seem to have been an improvement in the Testator's condition since the time that he was extremely unwell. He acknowledged that it was for the Court to determine the relative weight to give to these different views of the Testator's recovery.

770. On the question of vulnerability to influence, he observed that the Testator was completely dependent on those around him. The videos suggested that while he could respond to direct questions, his ability to form and express his own opinions was significantly impaired.

771. He referred to a published paper dealing with factors potentially contributing to undue influence. Some of the factors associated with undue influence were outlined in a table which he set out in his Report and which is reproduced below:³⁰⁰

772. As to the range of medical opinion, Professor Burns observed that most clinicians would agree that the Testator had had a severe stroke affecting his cognitive function. Some might say that the lack of cognitive testing meant that it was not possible to state definitively the degree of that impairment. They might also say that the descriptions on the Functional Independence Measure are insufficient to draw a conclusion about testamentary capacity.³⁰¹

773. In a summary at the commencement of his Report, Professor Burns said that in his opinion and on the balance of probabilities, the Testator lacked testamentary capacity when he signed his Will on 16 February 2021. He may also have lacked knowledge and approval but that would be a matter for the Court to determine.

774. Professor Burns was also of opinion that from the time of his stroke the Testator would have been vulnerable to influence.

Defendant's Expert: Dr Deepak Arjundas

775. Dr Arjundas is a Consultant Neurologist at Mercury Hospital, Chennai. His qualifications and experience indicate that he can be regarded as an expert for the purpose of giving expert opinion evidence relevant to the Testator's testamentary capacity at the time that he executed the Will the subject of these proceedings. The Defendant's solicitors instructed him to assess whether the deceased met the legal requirements for testamentary capacity at the time he signed the 2021 DIFC Will. They set out the test in Banks.

776. Dr Arjundas referred to his recollections of his interactions with the Testator as recorded in a Witness Statement dated 11 September 2025. He referred also to medical records supplied and his own clinical observations based on those records. In summary, after detailed review of acute hospital records from Saudi German Hospital (2017-2019), rehabilitation documentation from Shirley Ryan AbilityLab (2019) and Longitudinal Laboratory/Pathology Data (2017-2021), in his opinion, on the balance of probabilities, the Testator retained the necessary testamentary capacity on 16 February 2021. The medical documentation was said to indicate severe acute neurological injury in 2017 with persistent physical disability (right hemiplegia) and ongoing attention and some cognitive deficit. However there was no contemporaneous evidence in the reviewed records to indicate global or progressive cognitive decline, psychosis, or delusional disorder that would have rendered him incapable of understanding the nature and effect of a will, the extent of his property, or the persons with claims against his estate as of that date.

777. Dr Arjundas offered what he described as “important caveats on his opinion”:

778. The documents reviewed for preparation of Dr Arjundas' Report included Witness Statements filed in support of the Claimant's and Defendant's cases. Medical reports from the Saudi German Hospital and Shirley Ryan AbilityLab (Chicago), laboratory and pathology reports and additional hospital test results and progress notes up to December 2021 were included in the materials supplied and reviewed. He also referred to photographs of the Testator disclosed by way of standard production and miscellaneous videos of him, also disclosed by way of standard production. He referred to handwritten notes and letters signed by the Testator.

779. Dr Arjundas referred to what he called the clinical chronology by reference to selected relevant events. Briefly they were:

780. Dr Arjundas then referred to the principal neurological and neurobehavioral findings recorded across the acute and rehabilitation records. These included:

781. Dr Arjundas then undertook an evidence-based interpretation by reference to what he called cognitive domains. These appeared under the following headings:

782. Dr Arjundas opined that this material was consistent with the Testator having generally good orientation, attention and concentration, short and long-term memory, language and communication and executive function, as well as being consistent with the proposition that he was free from psychosis or other delusions. He qualified his observation by stating that the value of each of those items for the purposes of conducting a capacity assessment was necessarily limited because of the limited information available about the context in which they were produced. Nevertheless, they cohered with his analysis.

783. Dr Arjundas then addressed the necessary conditions of testamentary capacity set out in the decision in Banks. Bearing in mind the limitations of the role of an expert witness in relation to the ultimate finding which is a matter for the Court, it is appropriate to have regard to his relevant opinions on the following factual criteria:

784. Dr Arjundas rightly set out the limitations on his opinion which he identified and which were referred to in the Summary of his opinion set out above.

Addendum Medical Report by Professor Alistair Burns dated 21 November 2025

785. Professor Burns referred to Dr Arjundas' Report of 31 October 2025. He noted that Dr Arjundas listed stroke as one of his special interests but did not list any special expertise or experience in the assessment of testamentary capacity. He also noted that Dr Arjundas had not described each of the medical reports that he had reviewed, but Professor Burns understood that broadly speaking they had seen the same medical evidence. He acknowledged that Dr Arjundas had an advantage over him, that he saw the Testator during his life and Professor Burns had not.

786. Professor Burns then set out in a table their respective opinions on issues related to the question of testamentary capacity. That Table appears below:³⁰²

Supplemental Expert Report of Dr Arjundas dated 19 November 2025

787. Dr Arjundas set out points upon which he and Professor Burns agreed:

He acknowledged that where their opinions diverged was on the degree of cognitive recovery and whether the residual deficits equated to legal incapacity as defined under Banks.

788. Dr Arjundas pointed to Professor Burns' reliance on 2019 FIM and O-Log 13/30 scores for his conclusion that recovery beyond marginal improvement was unlikely. Dr Arjundas said that while these tests demonstrate impairment during structured rehabilitation it was methodologically unsound to extrapolate the 2019 scores to 2021 without evidence of continued decline. Subsequent witness and therapeutic evidence, especially the speech-language therapy reports of Ms Mary Klien (2020-2021) showed measurable improvement in expressive speech, comprehension and attention. They were contemporaneous and indicated a dynamic recovery trajectory, not a static impairment.

789. On the matter of executive function and decision-making, Professor Burns had emphasised theoretical impairment of the frontal lobe/thalamic circuitry, suggesting resultant executive dysfunction sufficient to vitiate capacity. According to Dr Arjundas however, in practice the clinical evidence — documented improvement in task initiation, communication and scheduling — showed preserved goal-directed behaviour. Executive impairment was mild-to-moderate, not global. Referring to Banks he asserted that moderate deficits do not amount to incapacity where understanding and reasoning about a simple will remain intact.

790. On the interpretation of video evidence, he observed that Professor Burns relied on video footage of the Will signing and described the Testator as “passive”: and “not engaged”. Dr Arjundas had viewed the same record. He observed that the Testator was physically limited but showed appropriate affect and followed the notary's instructions. His limited speech reflected motor speech impairment, not lack of comprehension.

791. He also commented that physical frailty should not be conflated with mental incapacity. In his clinical experience stroke survivors with expressive dysphasia often communicated their intent through brief or prompted responses while retaining full understanding.

792. He referred to Professor Burns' opinion that the Testator could not grasp “the extent of his property” because of the complexity of the KG Group. Dr Arjundas understood the Banks standard as requiring only general awareness, not knowledge of all the details of the extent of the property. From many of the Witness Statements, the Testator seemed to have retained such general awareness as numerous witness statements referred to his daily attendance in office to discuss his real estate matters which indicated more than a basic understanding of his assets. The Disputed Will itself, was a short single-beneficial instrument requiring limited cognitive demand to comprehend.

793. On the matter of influence, he agreed that any dependent adult can be vulnerable. However, the facts upon which Professor Burns had relied only indicated that someone in the Testator's position was more likely to be susceptible to undue influence. It did not follow that he was in fact subject to undue influence. There was no evidence in the record or witness statements of coercion, undue pressure or distorted thinking, each of which may have made the Testator more vulnerable to undue influence. This evidence, it might be observed, goes beyond Dr Arjundas' clinical experience.

794. Dr Arjundas then commented on the evidence of things done which may have made the Testator more vulnerable to undue influence, which also appears to be a matter beyond his clinical expertise. He pointed to evidence that the Testator was not unduly influenced by others when he made the 2021 DIFC Will. He referred to his numerous professional interactions with lawyers, accountants and therapists where he expressed consistent preferences, opinions and tastes. Dr Arjundas referred to Witness Statements mentioning that the Testator was highly disciplined and could not be pushed to do something he did not want to do, such as eat food he did not like or do therapies when he did not feel up to it. This suggested that the Testator was robust in expressing his views and preferences.

795. Again, this tends to be on the boundary of clinical expertise and comment on the inferences to be drawn from the evidence.

796. Dr Arjundas then set out what he called ‘Points of Clarification on Specific Data' contrasting Professor Burn's interpretation and his clarification by reference to the medical records.

797. Having reviewed Professor Burns' Report, he maintained his earlier conclusion that the Testator possessed testamentary capacity on 16 February 2021.

Expert Joint Statement dated 23 January 2026

798. A Joint Statement by Professor Burns and Dr Arjundas was filed on 23 January 2026. That set out the points of agreement and points of difference between them, which is reflected in the Supplemental Expert Reports that each prepared. They discussed their joint statement via a Zoom video conference on 13 January 2026 and a follow-up telephone call on 19 January 2026. They then exchanged drafts of the Report until both were satisfied that it accurately represented their respective opinions. It is convenient to reproduce the matters on which they agreed and the matters on which they did not agree as follows:

Cross-examination of Professor Burns

799. At the outset of his cross-examination, Professor Burns accepted that his speciality was “with older people particularly with individuals with memory problems and dementia”.³⁰³ Much of his experience related specifically to dementia. He added that this included looking at people suffering from dementia as a result of cerebral vascular disease and strokes. By dementia he meant chronic, progressive, degenerative diseases of the brain, including the cognitive impairment that can result from an acute stroke can develop into dementia in time.

800. In relation to the issue of cognitive capacity for the purposes of the execution of the Disputed Will, Professor Burns made no judgment about the complexity of the estate. However, he accepted the concept of testamentary capacity did not involve a one-size fits all cognitive capability. He said:

801. A decision by a testator to leave everything to his wife — if not influenced by any loss of memory — would be relatively straightforward as against a decision to leave a number of things to a number of people.³⁰⁵

802. There was discussion of various clinical tests which had been undertaken in Austria and Chicago. The Functional Independent Measure (“FIM”) was not a test with which Professor Burns had been familiar. He characterised it, based upon its description on the Shirley Ryan Clinic website as “a general impression taking into account all the information”.³⁰⁶ He added that measures of communication and social cognition could have a cultural element to them.³⁰⁷ Some of the measures used in the FIM would reflect cognition.³⁰⁸

803. There was some discussion of a Short Cognitive Performance test, designated SKT, which was said in Professor Burns' evidence to “suggest significant difficulties with several aspects of cognition”.³⁰⁹ These were “essential memory deficits”.³¹⁰ A mini mental state executive (“MMSE”) test reported a limited selection of test procedures due to the language barrier³¹¹ and “reduced concentration endurance with rapid cerebral fatigability and psychomotor slowing.”³¹² Professor Burns observed that fatigue is common in people who have had a stroke or cognitive impairment due to vascular disease. He accepted that the description of the Testator as “cooperative, sociable and friendly” implied “a level of meaningful communication”.³¹³

804. OptimaMed notes from Austria included observations relevant to the Testator's capacity to execute a will.³¹⁴ Specifically his understanding of and compliance with instructions such as “chin down to your breast” and “cough please” and “swallow again”.³¹⁵

805. Professor Burns was referred to the evidence of Mary Klien. He accepted that the ability to verbalise and to follow what a speech therapist was doing during a therapy session, could be of relevance to an assessment of cognitive capacity.³¹⁶

806. Professor Burns was cross-examined on observations of the Testator's behaviours by various lay witnesses. Any conclusions to be drawn from those witnesses depended upon whether their evidence was accepted by the Court. He made the point, in relation to board games, that memory of how to play some games would persist if the ability to play them dated back a long time.³¹⁷ The same was true of songs.

807. If Asha's evidence about the Testator's ability to walk with little or no assistance, brush his teeth, write legibly, eat by himself and perform routine activities independently were accepted, that would have implications of physical improvement and some improvement in memory.³¹⁸

808. He was referred to the First Witness Statement of Nidhi Gupta and the Testator's recognition of photographs from an old class at boarding school. Professor Burns said that this would be relevant to long term memory. The statement that he started to write more were accepted, that would be more recent. Doing something like sending letters would be an indication of his current function.³¹⁹

809. As to his described ability to play Monopoly by risk taking and choosing to build on higher value properties — this evidence if accepted by the Court, would show that he was able to play effectively. Clearly he was a very successful businessman and it could be that those skills that he had built up over years were reflected in how he played the game. It would suggest some cognitive flexibility.

810. Mr Babariya's evidence about the Testator's view of the likely time to complete a building could relate to previous knowledge and experience, but if something new and different that would relate to his current abilities.

811. As to Mr Giani's evidence that the Testator could walk independently with a walking stick, it would be a measure of his abilities at the time.³²⁰

812. Sanjay Shah's evidence, if accepted, would suggest that the Testator was capable of thinking about the effect of rising steel prices in China on input costs. As to the driver, Shiva Prasad's evidence about the Testator's awareness when people were late or the time that he needed to go and get a haircut, that if accepted by the Court, would suggest that he was able to have a good memory of day-to-day events. The ability to use a calendar and to be reminded of them would suggest that he was able to recall things.

813. In re-examination Professor Burns was referred to a letter written by the Testator to the Defendant dated 16 September 2021. He said that if accepted by the Court, it looked as though it had been written using the Testator's left hand. If the statement were accepted, he had learnt to write with his left hand. The letter seemed to be a statement of generalities.³²¹

Cross-examination of Dr Arjundas

814. Dr Arjundas was cross-examined at some length. He accepted that he had never formally treated the Testator as a patient. He said however that he had few patients who had done as well as the Testator. He used the term “miraculous recovery”.³²² Dr Arjundas said he understood his duty to the Court as an expert witness and that his role as an expert witness was to provide his professional opinion even if his answer might be unhelpful to the Defendant's case.³²³

815. Dr Arjundas had not given evidence in court previously. He was a stroke neurologist. Stroke neurologists did not do “legal neurology in our stroke setting”.³²⁴

816. Dr Arjundas was referred to the criteria of testamentary capacity in Banks.

817. He denied that the Testator was suffering from a disorder of the mind. The Testator's brain had suffered infarcts.³²⁵ He distinguished between a disorder of the mind where the brain cells were not affected and which could produce delusions from a cognitive disorder where cells had been affected with consequences for memory.³²⁶ Dr Arjundas was referred to clinical notes from the Austrian clinic in February 2019 assessing the Testator as “barely able to describe his medical history”. He pointed out that the Testator was not comfortable with the English language and that after a left-sided stroke, the language function can be affected. The language learned in childhood recovers quicker than the English language learnt later.³²⁷ Dr Arjundas agreed that the Testator had done his business in English and observed that when he examined him and gave an instruction in English, e.g. to lower his hand, the Testator complied. The Testator was, however, more comfortable with Hindi.³²⁸

818. Dr Arjundas was referred to notes about the need to give the Testator verbal cueing or guidance to initiate an action — e.g. to remove his T-shirt or untie his shoelaces.³²⁹ Dr Arjundas agreed that the need for verbal cueing was indicative of executive dysfunction.³³⁰ He spoke, however, of neuronal plasticity whereby one part of the brain could take over a function of a damaged part.³³¹ A left thalamus infarct did not mean the patient would be permanently aphasic.

819. Dr Arjundas agreed that the report of an MRI carried out in 2019 at the Shirley Ryan Chicago facility had suggested “quite extensive changes in the brain on both sides”. The report recorded “Wallerian degeneration in the left thalamus”. That however controls the face. It had nothing to do with executive function.³³² Dr Arjundas was shown results of an MRI scan conducted on 24 April 2021. Those results showed a recent bleeding stroke on the right rear side of the brain and chronic bilateral infarcts. He said that the term “chronic” meant long-standing and did not mean “permanent”.³³³

820. Asked if the 2021 MRI showed a brain in worse condition than the MRI carried out in 2019, he distinguished between an episode (in this case a posterior circulation stroke) to the back of the brain and a worsening “in the same territory”.³³⁴

821. On the 2019 note from the Chicago clinic and a Special Language Pathology Evaluation he was referred to the comment “not oriented in place, not oriented to time”.³³⁵ Assuming that record to be correct, he agreed it was evidence of reduced orientation.³³⁶

822. Asked whether the cognitive impairment recorded in the Chicago notes would have impaired the Testator's ability to make decisions about legal and financial matters, he said that it depended upon “how much understanding is given to this particular patient or the period of time. Not just when interviewed.³³⁷

823. The Shirley Ryan clinic notes were accepted as asserting that the Testator had an ongoing moderate-severe cognitive problem. Dr Arjundas said the statement asserted ongoing decline — which would mean an ongoing disease. But the Testator had had a stroke not a disease.³³⁸

824. Dr Arjundas disagreed with the proposition that references in the 2019 notes, to the passage of two years since the stroke, meant that it supported the proposition that it would be more difficult for the Testator to make progress.³³⁹ Dr Arjundas was referred to the Witness Statements of Pooja Gupta³⁴⁰ and Kunal Gupta,³⁴¹ which were said to indicate that the Testator did not have full knowledge of his family and basic personal history.³⁴² He agreed that those statements presented a different picture of the Testator's ability to recognise his family than that presented in Witness Statements he had seen. He agreed that he could not express an opinion about the state of the Testator's memory in 2020 to 2021.

825. Dr Arjundas agreed that assuming those Witnesses' Statements to be correct, they would affect his assessment.³⁴³ He disagreed that the grandchildren's statements would be consistent with a cognitive impairment sufficient to deprive the Testator of testamentary capacity.³⁴⁴

826. In re-examination he was referred to Mary Klien's statement and said:

General conclusions based on the expert evidence

827. Both medical witnesses gave evidence which was of assistance to the Court. Its application in the present case depended upon facts which must necessarily be found by the Court. Professor Burns had the advantage that he was independent of the parties, but the disadvantage that he had not seen the Testator during his life. His opinions were dependent upon:

828. An important feature of Professor Burns' evidence was his acceptance that the relevant degree of cognitive capacity in assessing testamentary capacity was not a fixed standard, but would depend upon the nature of the complexity of the testamentary instrument. In this case, as appears from the evidence, the testamentary disposition was a simple one — all of the Testator's assets to Asha, with the Defendant as a substitute beneficiary in the event that she did not survive the Testator — which, barring accidents, would have appeared at the time an unlikely outcome.

829. Dr Arjundas had the advantage of having observed the Testator in 2018 and specific experience related to stroke patients. While it may be said that he was not an independent expert — having had an association with the Testator's family, I accept that his evidence was honestly given to the best of his ability. The limitations on the use that can be put to his evidence to the extent that it was based upon Witness Statements, is similar to the limitations applicable to Professor Burns' evidence.

830. I find on the evidence of the medical witnesses that, at the very least, they leave open the possibility that the Testator had the cognitive capacity necessary to understand the essential terms of the Disputed Will and the general nature of the estate of which he was disposing. The degree of cognitive capacity in issue for the purposes of assessing that understanding depends upon the complexity of its terms and of the estate

Testamentary capacity — conclusions

831. I accept that the Claimant has raised a question about the testamentary capacity of the Testator sufficient to require the Defendant to establish, on the balance of probabilities, that the Testator did not lack testamentary capacity when he executed the Disputed Will.

832. The first of the criteria set out in Banks is that the testator understood the nature of the act and its effects.

833. Having regard to the conclusions I have reached about the Testator's cognitive capacity at the time he executed the Will, I am satisfied that he understood the nature of the act and its effects. It was not a complex disposition. It was a disposition to Asha, with his son, the Defendant, as substitute. It was the whole of the estate that he disposed of. It was not a complex estate and even if it had been on some basis able to be characterised as complex, that complexity was not a factor related to his cognitive capacity to know that he was disposing of it all to Asha.

834. No doubt the disposition reflected a change in intention from that he had expressed some years earlier to divide the estate between his two sons. Even if he was not fully aware of the family tensions, Asha was the person whom he would have trusted to manage the estate in the interests of the family. The Defendant, having clearly been involved in the management of the Testator's care and affairs, would have fallen into the same category.

835. These findings cannot be made with absolute certainty given the frailties of human memory reinforced by partisan perspectives. These are nevertheless findings which I am able to make on the balance of probabilities.

836. I find also that the Testator had a sufficient understanding of the extent of the property of which he was disposing. It was all of his property — a relatively simple proposition.

837. As to his appreciation of the “claims to which he ought to give effect”, none had a greater claim than Asha. The subsidiary interests of the Claimant and the Defendant did not have to be weighed in the balance against hers. The nomination of the Defendant as substitute beneficiary was of little significance if, as must have seemed likely at the time, and turned out to be the case, Asha would survive him. There was a rational basis for nomination of the Defendant as a substitute beneficiary. He had had the management of the estate and the Claimant had been given much.

838. I reach that conclusion having regard to the findings I have made based on the evidence of the lay witnesses, documentary evidence, the evidence of the two medical witnesses which left open the conclusion which I have drawn. Despite his physical and speech limitations, the Testator had demonstrated sufficient cognitive capacity in various ways to indicate that it was probable that he comprehended what he was doing when he made this simple Will.

839. In my opinion the Testator did not lack testamentary capacity at the time of the execution of the Disputed Will.

Want of knowledge and approval

840. The legal principles related to want of knowledge and approval sufficient to invalidate a will have been set out earlier in these Reasons. There is a distinction that was made by Lewison LJ in Simon v Byford [2014] EWCA (Civ) 280 at [47] between the capacity to make a will and knowledge and approval of its contents in the following terms:

841. The Claimant submitted that there was no stage at which anybody independent met with the Testator to take his instructions to form a view as to his understanding of a draft will, to confirm that it reflected his wishes or to consider whether he should be medically examined in view of his age and disability. He also pointed to the fact that even after the Service made clear that the Will needed to have been drafted either by the Testator or by a registered Wills Draftsman, the Defendant and Mr Giani pressed ahead without instructing a registered Wills Draftsman and arranged for a false declaration to be signed by the Testator and by Asha. The Claimant relied, inter alia, upon evidence that the Testator did not understand the Declaration of 6 January 2021 when he was asked to sign it. This was said to show that even if he did have capacity at the time, he was unable to read and understand documents properly himself.

842. Although there is a distinction to be drawn between testamentary capacity and knowledge and approval of the contents, the findings I have already made with respect to testamentary capacity indicate that sufficient unto the day, the Testator did understand the simple disposition of all of his estate to Asha and to the Defendant as a substitute beneficiary. The substance of the Will was explained to him. At the time of the execution of the Will, asked whether he had any questions following that explanation, he said “no”.

843. Having said that, the process which led to the execution of the Will was entirely unsatisfactory. The Testator should have had direct access to legal advice. It would have been appropriate, as a matter of prudence, for a medical practitioner to have examined him at the time of the execution of the Will. These deficiencies and the untidy process which led to the execution of the Will do not mandate a conclusion that the Testator lacked knowledge and approval of the Will. That conclusion is made easier by the simplicity of the disposition and the fact that he was leaving everything to Asha.

844. In his Closing Submissions the Defendant submitted that the Testator's first priority was to care for Asha and that both wished that the substitute beneficiary be the Defendant because of the way in which his family had cared for the Testator after his stroke.

845. The Defendant pointed to a number of matters supportive of knowledge and approval of the contents of the Will on the part of the Testator.

846. Before the wills were signed, the Defendant had told the Testator and Asha about their contents. Asha said in cross-examination that the Defendant had explained the contents in Hindi even though both she and the Testator were able to understand English. He told them everything that was in the Will. She understood that the Claimant was not mentioned anywhere in the Will.

847. Immediately before the wills were signed, Mr Giani briefed the Testator and Asha about the registration process.

848. In relation to the decision not to name the Claimant as a substitute beneficiary, the Defendant submitted that before he suffered his stroke, the Testator had purchased for the Claimant's family apartments in Miami worth approximately USD 4.4 million. After the stroke Asha had transferred to the Claimant sums totalling INR 254,250,000, which, at the date of her Witness Statement, was approximately USD 3.75 million.

849. The Defendant referred to the Claimant's emphasis in cross-examination on the Testator's pre-stroke intention to leave his Indian assets to the Claimant and his Dubai assets to the Defendant. He submitted that at the time they made their 2021 DIFC Wills, it was reasonable for both the Testator and Asha to believe that the Testator, in light of his poor health, would be the first to pass away and therefore his estate in all probability would first pass to Asha. It would then be open to Asha to give assets to the Claimant, whether as an inter vivos gift or by a fresh will should she wish to do so.

850. The Defendant also submitted that even if Asha did not make a fresh will and the whole estate ultimately passed to the Defendant, there appeared to have been an expectation that the Defendant would deal with the assets in such a way that the Claimant would benefit. When Asha was asked about the Testator's pre-stroke desire for the India assets to go to the Claimant and the Dubai assets to the Defendant, she said “…there was no specific talk during that time that we will give … India to Nitin in 20, or at any time. They can get these things after our death.”³⁴⁶ The Defendant pointed out that as the Deed of Family Settlement showed, both sides of the family were willing to deal with the estate in a way that was different to the 2021 DIFC Wills.

851. These contextual factors reinforce the proposition based on the findings I have already made, that at the time he agreed to the execution of the Disputed Will, the Testator had the requisite knowledge and approval of its contents.

Undue influence

852. The legal principles relating to the contention of undue influence have been set out earlier in these Reasons. There is no presumption of undue influence. Whether it has procured the execution of a will is a question of fact. The burden of proving undue influence lies on the person who asserts it. The applicable meaning of undue influence is influence exercised either by coercion, in the sense that the Testator's will must be overborne, or by fraud. Coercion is used in the sense of “pressure that overpowers the volition without convincing the testator's judgment”. The criteria for assessing undue influence in this case were not in dispute.

853. The Claimant, in his Closing Submissions, posed the rhetorical question: What explanation is there for the Disputed Will? Or put another way: What hypothesis is the Disputed Will consistent with — assuming that contrary to the Claimant's case, the Testator had testamentary capacity to make it and knew and approved its contents.

854. The Claimant submitted that following the stroke the Testator was and remained a highly dependent and vulnerable man for the rest of his life. The evidence was also said to clearly show that following the stroke the Defendant and Asha took over control of the Testator's assets, including his Indian assets. It was also clear that they made decisions about the Testator's living arrangements and about who should visit him and that communication with the Testator had to go through them. Examples were offered by reference to the evidence. The suggestion was that they were controlling access to the Testator by other family members. Against that background it was said that the answer to the question — what hypothesis is the Disputed Will consistent with? — could not be that the Testator had turned against the Claimant and decided to disinherit him. Asha had made clear that was not the case.

855. The answer, it was submitted, must be that the Defendant had decided that the Claimant should not inherit. This was consistent with the Defendant's admitted perception that the Claimant and his family had already received enough. The Disputed Will was said not to represent the Testator's freely formed testamentary wishes. He had capacity to make it and knew and approved its contents, he executed it because he was given no choice but to do so in the same way as the false Declaration.

856. In his Closing Submissions, the Defendant referred to the Amended Particulars of Claim in which it was alleged that the Testator was “under the influence of the Defendant and his wife and Mrs A Gupta at the time and was coerced into executing the 2021 DIFC Will”. In the Claimant's Third Witness Statement, he claimed that “every action taken by Rohit and Mum was deliberate and every barrier placed between Dad and me was part of a plan to control his life, his voice and ultimately his estate”. By the time he came to give evidence however, the Claimant had conceded that the standard of the Testator's medical and physical care was excellent even if emotionally it was “probably not”.³⁴⁷ Undue influence, it was said, must be seen in the context of an unremarkable will by which the Testator gave his residuary estate in the first instance to Asha and in the second instance to the son who had cared for him and managed his estate for three years.

857. It may be accepted that the Testator was vulnerable and susceptible to undue influence as the medical experts agreed.

858. The terms of the Disputed Will, however, are entirely consistent with a hypothesis that it was made for the purposes already set out and whether or not he was persuaded that that was a good thing to do, I am not satisfied that he was coerced into executing the Disputed Will. This ground of attack on the validity of the Will fails.

Orders

859. For the preceding Reasons, the claim is dismissed. The Claimant will pay the Defendant's costs of the claim to be assessed by the Registrar if not agreed. As to the costs of the Defendant's unsuccessful Application for Security for Costs, there will be no order.