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: The question was whether the court was able to rely on the witness’ memory: ‘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.’ After referring to Croft -v- Croft Lord Penzance said: ‘Here we have only the evidence of one witness, and we find the signature of the other attached to a full attestation clause. Taking all the circumstances into consideration, I come to the conclusion that the will was well executed, and that I ought not to rely upon a recollection of the witness, seeing that, if he did not himself, in the first instance, affirm the execution of the will, he stood by and assented to his fellow witness making such affirmation.’
Lord Penzance
(1869) LR 1 PD 678
England and Wales
Cited by:
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 – Ahluwalia 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. . .
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
Leading Case
Updated: 02 November 2021; Ref: scu.223797