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 now considered a request for permission to appeal the award of costs.
Held: The court had already exercised its discretion on this issue. The costs had totalled nearly andpound;300,000, of which most was spent on preparations for the Inheritance claim. The substantive judgment itself was not being challenged. The judge had erred in his approach and not appreciated the significance of a concession made by the appellants, and incorrectly identified the winners of the action, and the order was adjusted accordingly.
Peter Gibson LJ discussed the issue of the validity of the attestation of the will: Wright v. Sanderson (1884) 9 PD 149 … demonstrates . . the strength of the presumption of due execution when there is an attestation clause and the testator and witnesses sign. In that case 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 did they see the testator sign. One witness said that she did not know what she was signing; the other said that she did not know what she was doing. Although the trial judge, Sir James Hannen P, did not doubt their honesty, he felt that he could not rely on their evidence to rebut the presumption arising from the regularity of the codicil on its face as regards all the formalities of signature and attestation when no suspicion of fraud arose. This court dismissed an appeal to it, the Earl of Selborne LC observing (9 PD at p161), ‘I do not know how many wills, really well executed and duly attested, might not be brought into peril if, upon the sort of evidence which we have here, after a lapse of several years, probate were refused.’
To similar effect was Lord Penzance in Wright v. Rogers (1869) LR 1 PD 678 at p682. In this case 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. Lord Penzance said at p682 that the question was whether the court was able to rely on the witness’s memory. He continued:
‘The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed.
It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has ‘the strongest evidence’, in Lord Penzance’s words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator’s signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness.’
Waller LJ VP, Rix LJ, Moore-Bick LJ
[2006] EWCA Civ 1784
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
See AlsoSherrington 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. . .
See AlsoDaliah Dorit Sherrington and others v Sherrington CA 22-Mar-2005
. .
See AlsoSherrington v Sherrington CA 22-Mar-2005
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 . .
CitedCie Noga d’Importation et d’Exportation SA v Australia and New Zealand Banking Group Ltd 2002
Where one party appeals a judgment on its merits, the respondent is then entitled to seek to support it, even without needing further permission, on further grounds. . .

Cited by:
CitedNG 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: . .
CitedAhluwalia v Singh and Others ChD 6-Sep-2011
The claimant challenged the validity of the will, saying that it had not been validly attested, the two witnesses not being present at the same time despite the attestation clause saying they had been.
Held: The challenge succeeded. . .
CitedWilson 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.
Updated: 16 October 2021; Ref: scu.247626