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 is valid. The court considered the presumption of due execution of a will: ‘where the will contains . . an attestation clause, ‘the strongest evidence’ is required to rebut the presumption of due execution . . the importance and weight to be attached to that presumption is both principled and practical. It reflects, in terms of practicality, the reality that those attesting a will may well be called upon to recollect the circumstances of execution a very long time after attestation has taken place and where memories of facts which are not, to the attesting witnesses, of any particular importance may well have diminished, or disappeared. In terms of principle, it leans in favour of giving effect to the validity of a will, which, in its turn, gives effect to the testator’s intentions, rather than, potentially negating those intentions.’
Here, it was common ground that the attestation clause did not accurately reflect that which occurred. The will was not signed by the deceased in the presence of the attesting witnesses. The will was already signed by the deceased before being provided by the deceased to the attesting witnesses to sign as witnesses and, therefore, that even if the circumstances of their attestation constitute a valid execution of the will it is a different form of due execution to that asserted in the attestation clause. The presumption could not be relied upon.
However, the evidence did establish that the signed will was produced to the witnesses and the signature acknowledged.
Judges:
Bowles M
Citations:
[2017] EWHC 85 (Ch)
Links:
Statutes:
Wills Act 1837 9, Inheritance (Provision for Family and Dependants) Act 1975
Jurisdiction:
England and Wales
Citing:
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 – Kayll v Rawlinson ChD 2010
The parties disputed the validity of a will.
Held: (obiter) David Richards J said that because it was common ground that the terms of the attestation clause did not reflect the manner in which the signing of the will by the testator had been . .
Cited – 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 . .
Cited – Sherrington 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 . .
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 . .
Cited by:
Cited – Wrangle v Brunt and Another ChD 6-Jul-2020
Challenge to purported wills as forgeries.
Held: Though the will was not executed as described in the attestation clause: ‘On the totality of the evidence before me, I am satisfied Dean understood and approved what was in the will when it was . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 09 December 2022; Ref: scu.579955