The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his children. The judge had held the will invalidly executed.
Held: The appeal succeeded. The decision that the will had not been duly executed was overturned on the basis that, where the will containing an attestation clause was regularly signed by the deceased at its foot, and by two witnesses, the strongest evidence was needed to reject the presumption of due execution.
The will appeared to be an extraordinary one in the light of the deceased’s expressed feelings about his wife. The judge had given great weight to the evidence of one witness, but had found her evidence incorrect in its most singular aspect when saying that the testator had signed the will first. She had also later talked about the will and said she witnessed it, though her evidence at court was that she had not known she was witnessing the will. Given the deceased’s insistence on the correct formalities, it was not credible that he did not have the will properly executed. In view of the identified errors in the evidence of the witnesses, the finding that the will was not executed and could not stand. Additional computer evidence tended to undermine the basis of the judge’s conclusions as to how it was drawn. An appellate court can be less cautious about interfering with a judge’s finding on a fact about which no direct evidence was given: the judge’s decision that the deceased did not know or approve the contents of the Will was contrary to all probability and beyond belief: it is plainly wrong. The appeal was allowed.
In overturning the factual findings Peter Gibson LJ said: ‘Before we go to the three issues, we must say a few words about the appropriate approach of the court to the issues so far as they are appeals on fact. As Mrs Talbot Rice rightly reminded us, an appellate court is severely handicapped in judging the credibility of oral evidence, even though transcripts are provided, because it has not heard and seen the witnesses giving evidence nor observed their demeanour. She has referred us to statements in Benmax v Austin Motor Co Ltd  1 All ER 326,  AC 370 which made it clear how very difficult it is for an appellate court to interfere with a finding of primary fact founded on the credibility of a witness. Although that case suggests that it may be easier for an appellate court to interfere with an inference drawn from primary facts, that must now be read subject to the cautionary words of Lord Hoffmann in Biogen Inc v Medeva plc (1997) 38 BMLR 149 that specific findings of fact are inherently an incomplete statement of the impression made on the trial judge by the primary evidence and that such findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. It is accordingly necessary for this court to treat the judge’s findings with appropriate respect. It must be very slow indeed to interfere with any such findings. That, however, does not mean that an appeal on fact can never succeed. If this court is convinced that the judge was plainly wrong, then it is its duty to interfere.’
Lord Justice Peter Gibson Lord Justice Waller Lord Justice Neuberger
 EWCA Civ 326, Times 24-Mar-2005,  WTLR 587
Wills Act 1837 9
England and Wales
Cited – Hudson v Parker 1844
The court made observations on the meaning of the requirement in the Wills Act 1837 that the witness ‘shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary’. He pointed to the . .
Appeal from – Sherrington v Sherrington ChD 13-Jul-2004
The deceased had divorced and remarried. His children challenged the will made after his second marriage.
Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – Bryan v White 1850
The court considered the proper execution of a will: ”Attest’ means the persons shall be present and see what passes, and shall, when required, bear witness to the facts’. . .
Cited – Re Beadle 1974
Although it is unnecessary that the attesting witnesses know that the document they are signing is a will, it is necessary to show that the attesting witnesses when signing the will intended by their signatures to verify that the testator had signed . .
Cited – Smith and Smith v Smith 1969
The witnesses did not see the attestation clause on a will and although they saw the testatrix write something on the document, they did not see what was being written.
Held: Witnesses to the execution of a will need not know that the document . .
Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Cited – Griffiths v Griffiths 1871
The court considerd the requirements for the proper execution of a will: ‘The statute says that the witness shall attest, and shall subscribe the will; which must mean that he shall put his name to the will as attesting to the fact that he saw the . .
Disapproved – In the Estate of Benjamin, deceased 1934
The intention of a purported witness to the execution of a will is immaterial if the will is in proper form. . .
Cited – Roberts v Phillips 1855
Cited – In the Estate of Bercovitz, deceased; Canning v Enever ChD 1961
The court considered the requirements for a valid execution of a will.
Held: The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. Phillimore J . .
Cited – In the Estate of Bercovitz, deceased; Canning v Enever CA 1962
Upheld – The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. . .
Cited – Wright v Rogers 1869
The survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator.
Held: . .
Cited – Wright v Sanderson 1884
The testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to ‘sign this paper’ which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor . .
Cited – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
Cited – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Cited – Hart v Dabbs ChD 6-Jul-2000
An executor under the will was a legatee and the sole residuary legatee. He was involved in the preparation of the will and organised the process of its execution. There was no professional assistance or involvement of any kind in the will-making . .
Cited – Fulton v Andrew HL 1875
The will was professionally drawn but through agency of the executors, specific legatees and residuary legatees. The Court of Probate directed the case to be tried at the assizes where the judge asked the opinion of the jury on a number of questions . .
See Also – Daliah Dorit Sherrington and others v Sherrington CA 22-Mar-2005
See Also – Daliah Dorit Sherrington and others v Sherrington CA 22-Mar-2005
Cited – Channon and Another v Perkins (A Firm) CA 1-Dec-2005
A will was challenged by the family. The witnesses had said that they did not remember witnessing the deceased sign the will, and would have done. The principle beneficiary appealed refusal of admission to probate of the will.
Held: Neuberger . .
See Also – Sherrington and Another v Sherrington CA 29-Dec-2006
The deceased had after remarriage made a will which excluded from benefit entirely his first wife and children by her. Claims under the 1975 Act were put to one side while the court decided on the validity of the will, but then dismissed. The court . .
Applied – Kentfield v Wright ChD 1-Jul-2010
The claimant disputed her mother’s will which left everything to her brother, challenging its execution. She said that the second witness had not been present when the will was signed.
Held: The will stood. Where a will appeared to be properly . .
Cited – Lim v Thompson ChD 14-Oct-2009
The claimant sought revocation of letters of administration granted to the defendant, asserting the existence of a valid will. The defendant said that the will was not validly executed. Only a copy had been found, and one with only one witness. One . .
Cited – NG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held: . .
Cited – Wilson v Lassman ChD 7-Mar-2017
Claim for revocation of grant of probate on grounds that the will was not validly executed. It had been signed but before the witnesses attended.
Held: The will of the deceased was properly executed and attested in compliance with statute and . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Litigation Practice
Updated: 11 November 2021; Ref: scu.223780