Factual and Procedural Background
This probate action concerns the validity of competing wills following the death of the decedent on 9 February 2012 at age 92. The Claimants are residuary beneficiaries under a professionally prepared will dated 21 October 1982 (“the 1982 Will”). The Defendant, a beneficiary under a homemade will dated 1 November 1999 (“the 1999 Will”), challenges the Claimants’ entitlement. The 1999 Will’s principal beneficiary was the Defendant’s mother, with other relatives also named. The estate is valued at approximately £1.8 million.
The Claimants seek probate of the 1982 Will and challenge the validity of the 1999 Will on grounds of improper execution and lack of testamentary knowledge and approval. The original 1982 Will cannot be found, raising issues of revocation by destruction. The next of kin reached a confidential agreement with the Claimants and withdrew from proceedings. The Defendant was permitted to participate fully despite the next of kin’s withdrawal. An application under section 116 of the Senior Courts Act 1981 to pass over the named executor in the 1982 Will in favor of the Claimants arises only if the Claimants succeed.
The factual background includes the lifelong friendship between the decedent and the Defendant’s mother, the preparation and storage of the 1982 Wills, and the circumstances surrounding the execution of the 1999 Will at a language school where the Defendant’s mother and witnesses were employed. The 1999 Will was homemade and witnessed by two individuals who later stated they believed they were witnessing the Defendant’s mother’s will, not the decedent’s.
Following the decedent’s death, a search of her residence found copies but not the original 1982 Will. There is evidence of extensive prior searches and loss of important documents. The Defendant and his brother provided evidence of informal testamentary intentions expressed by the decedent. The witnesses to the 1999 Will gave multiple statements over several years, with some inconsistencies and evolving details.
The matter proceeded to trial where the court considered the formal requirements for will execution, the credibility and reliability of witness evidence, the decedent’s testamentary capacity and intentions, and the legal presumptions applicable to lost wills and due execution.
Legal Issues Presented
- Whether the 1999 Will was validly executed in accordance with section 9 of the Wills Act 1837, including whether the testator signed in the presence of two witnesses who attested in her presence.
- Whether the testator had knowledge of and approved the contents of the 1999 Will.
- Whether the 1982 Will was revoked by destruction or lost without revocation.
- Whether an order under section 116 of the Senior Courts Act 1981 should be made to pass over the named executor in favor of the Claimants.
Arguments of the Parties
Claimants' Arguments
- The 1999 Will was not executed in compliance with section 9 of the Wills Act 1837, as the testator did not sign in the presence of two witnesses, and the witnesses attested the will believing they were witnessing a different will.
- The 1999 Will excites the suspicion of the court, placing the burden on the Defendant to prove the testator knew and approved its contents, which they contend he cannot do.
- The 1982 Will was not revoked by destruction but lost, supported by evidence of extensive searches and missing documents.
Defendant's Arguments
- The close lifelong friendship between the testator and the Defendant’s mother supports the validity of the 1999 Will.
- The witnesses’ delayed and inconsistent accounts undermine their reliability; the presumption of due execution should apply.
- The 1999 Will does not excite suspicion, and if it does, the Defendant asserts that the testator knew and approved its contents.
- The Defendant is not concerned with the revocation of the 1982 Will, only with the validity of the 1999 Will.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re Sherrington [2005] EWCA Civ 326 |
Requirement of "strongest evidence" to rebut presumption of due execution where will appears validly executed with attestation clause. |
Guided the court to apply a high evidentiary standard to challenge due execution presumption; the court found the witnesses' evidence sufficient to rebut presumption. |
| Re Channon [2005] EWCA Civ 1808 |
Detailed legal principles on due execution and evidentiary burden; sliding scale of "strongest evidence" depending on circumstances. |
Adopted as leading authority for assessing evidence reliability and burden in contested execution cases. |
| Re Bercovitz [1961] 1 WLR 892 |
Observations on attestation and witness evidence. |
Supported the principle that attestation clauses carry significant evidentiary weight. |
| Re Papillon [2006] EWHC 3419 (Ch) |
Comments on presumption of due execution and witness intention. |
Referenced for legal context but court followed Court of Appeal guidance in Channon. |
| Wright v Rogers (1869) LR 1 PD 678 |
Discussed reliance on witness memory and presumption of due execution. |
Emphasized need for strongest evidence to overcome presumption; applied in assessing witness testimony. |
| Hawes v Burgess [2013] EWCA Civ 94 |
Framework for assessing want of knowledge and approval of will contents. |
Used to analyze whether the 1999 Will excited suspicion and whether that suspicion was dispelled. |
| Gill v Woodall [2011] WTLR 251 |
Caution against two-stage approach in knowledge and approval inquiries. |
Supported holistic evaluation of evidence on knowledge and approval. |
| Welch v Phillips (1836) 1 Moo. P.C 299 |
Presumption that a will last in testator’s possession but not found was destroyed with intent to revoke. |
Considered in assessing whether 1982 Will was revoked by destruction or lost. |
| Sprigge v Sprigge (1865-69) LR 1 P & D 608 |
Presumption of revocation by destruction does not apply where testator was insane at time of destruction. |
Discussed in context of testator’s mental capacity decline before death. |
| Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) |
Judicial observations on fallibility of human memory and reliability of oral testimony. |
Informed the court’s approach to witness memory issues and evaluation of evidence over time. |
| Crerar v Crerar (unreported) |
Approach to determining knowledge and approval by considering totality of evidence. |
Supported the court’s holistic assessment of whether testator knew and approved will contents. |
Court's Reasoning and Analysis
The court began by examining the statutory requirements for valid execution under section 9 of the Wills Act 1837, emphasizing the need for the testator’s signature in the presence of two witnesses who attest in the testator’s presence. The court relied heavily on the authoritative guidance from Re Channon and Re Sherrington, which require the strongest evidence to rebut the presumption of due execution when the will appears valid on its face and contains a full attestation clause.
The court carefully evaluated the evidence of the attesting witnesses, who consistently stated that they believed they were witnessing the Defendant’s mother’s will and that the testator was not present. Despite some inconsistencies and the passage of time affecting their recollection, the court found their core testimony credible and sufficiently strong to rebut the presumption of due execution.
The forensic evidence supported the conclusion that the two wills (the 1999 Will and the Defendant’s mother’s will) were witnessed at the same time, consistent with the witnesses’ accounts. The court also considered the affidavits of the Defendant’s mother but found them unreliable due to their late date, lack of cross-examination, and contradictions with other evidence.
On the issue of knowledge and approval, the court noted the suspicious features of the 1999 Will, including its homemade nature, multiple inks, and lack of evidence that the testator read or was informed of its contents. Nonetheless, considering the longstanding friendship and the testator’s expressed intentions, the court concluded that the testator did know and approve the contents.
Regarding the lost 1982 Will, the court acknowledged the presumption that a will last in the testator’s possession but not found is presumed destroyed with intent to revoke. However, given the evidence of extensive searches, missing important documents, and the testator’s declining mental capacity, the court found it more probable that the 1982 Will was lost rather than revoked by destruction.
Finally, the court addressed the application under section 116 of the Senior Courts Act 1981, noting that the named executor was elderly and infirm and wished to decline executorship, justifying an order to pass over in favor of the Claimants.
Holding and Implications
The court held that the 1999 Will was not validly executed in accordance with section 9 of the Wills Act 1837 and therefore should not be admitted to probate.
Despite this, the court found that the testator did know and approve the contents of the 1999 Will. However, this issue was rendered moot by the failure of proper execution.
The court further held that the 1982 Will was lost rather than revoked by destruction, and accordingly it should be admitted to probate.
An order under section 116 of the Senior Courts Act 1981 will be made to pass over the named executor in favor of the Claimants.
The decision directly affects the parties by admitting the 1982 Will to probate and rejecting the 1999 Will due to execution defects. No new legal precedent was established; the court applied established principles concerning will execution, testamentary knowledge, and lost wills.