Analysis
The claimant sought an order pronouncing against the will of his late father Gerald Wilson (the ‘deceased’) dated 9 October 2010, and revoking the grant of probate obtained by the defendant, as executor and sole beneficiary. The claimant contended that the will was not validly executed in compliance with s9 of the Wills Act 1837 (the ‘1837 Act’).
The will had been written, in manuscript by the deceased on a will form and was purportedly attested by two witnesses, Mr Byrne and Mr McKinley. It contained a proper attestation clause. It was not disputed that the deceased had signed the will, nor that the two witnesses had also signed the will. Nor was it contentious that the deceased had signed his will before presenting it to the witnesses for their signature.
However, evidence produced by one of the attesting witnesses appeared to indicate that the will had not been signed in the presence of the attesting witnesses, and second, that when the first attesting witness signed, the second attesting witness was not present. This evidence was inconsistent with that of Mr McKinley, which stated that he was uncertain as to whether the will had already been signed by the deceased when presented to him, and that he and Mr Byrne had been together when he had witnessed the will.
The issue between the parties was whether, at the point when the deceased acknowledged his signature on the will, he did so in the presence of both witnesses present at the same time, or whether the factual sequence was such that there was never any such acknowledgement to the two witnesses at the time when they were both present with the deceased, as required by the 1837 Act.
Held:
1) Where a will contained an attestation clause, the strongest evidence was required to rebut the presumption of due execution (per Sherrington v Sherrington [2005] EWCA Civ 326 and Channon v Perkins [2005] EWCA Civ 908).
2) However the presumption was not insurmountable. It would not enable a court to affirm that a will was duly executed where the witnesses to the will both swear that the will was not duly executed and there was ‘no evidence the other way’, or whether the attestation clause was demonstrably and admittedly incorrect.
3) As in the present case, it was common ground that the attestation clause did not accurately reflect what had occurred. It was not the case that the will was signed by the deceased in the presence of the attesting witnesses, because the will was already signed by the deceased before being provided to the attesting witnesses to sign.
4) Accordingly, the attestation clause did not give rise to a presumption of due execution. It was therefore the case that due execution had to be established upon the basis of the proof of due execution of the will in the manner in which it is alleged, by those propounding the will, that due execution took place and without the benefit of any presumption in their favour.
5) Mr McKinley’s evidence was that, the will, already signed by the deceased, was passed by the Deceased to Mr McKinley who signed on the bonnet of the deceased’s car. Mr McKinley then passed the will to Mr Byrne and Mr Byrne signed. Accordingly, Mr Byrne and Mr McKinley were together throughout this process.
6) Accordingly, the will was valid.
JUDGMENT MASTER BOWLES: [1] By an amended claim form, dated 2 February 2016, the claimant, Paul Wilson (Mr Wilson) sought an order of the court, pronouncing, in solemn form, against the will of his father, Gerald Altiman Wilson (the deceased), dated and purportedly executed on 9 October 2010, and revoking the grant of probate obtained …Continue reading "Wilson v Lassman [2018] WTLR 1577"