When will the presumption of due execution be rebutted?
Will validity, knowledge & approval – Re Whelen  EWHC 3301
In this case Behrens HHJ had to consider disputed evidence over the signing in 1999 of a Will and whether it had been validly executed or not. He referred to two Court of Appeal decisions on how the presumption of due execution should not be easily rebutted if a Will on its face appears validly executed and has a full attestation clause. However he agreed that there was a sliding scale on the strength of evidence needed. If there was only weak evidence of due attestation then it may be easier to displace the presumption of due execution.
Dorothy Whelen, a widow with no children and no close relatives, died on 9 February 2012 at the age of 92 with an estate worth in the region of £1.8m. She left a professionally drawn up Will dated 21 October 1982 which gave her residuary estate between four charities now known as: the Royal National Institute For Deaf People, the Royal National Institute Of Blind People, Marie Curie Memorial Foundation and the Institute of Cancer Research: The Royal Cancer Hospital.
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There was also a homemade Will alleged to be have been executed by Dorothy on 1 November 1999 which named her lifelong friend Hazel Turner as her principal beneficiary and appointed her as her executor. The charities sought probate of the 1982 Will, challenging the 1999 Will on the grounds of it not being correctly executed in accordance with s9 Wills Act 1837 and that Dorothy had not known and approved its contents. Due to Hazel’s advanced age, poor health and her suffering from severe dementia, the challenge was defended by one of Hazel’s sons, Alan Turner.
The charities claimed that Dorothy had not signed her Will in the presence of two witnesses. The two named witnesses, Mr Hallam and Mrs Tomalin who both worked with Hazel, had instead been asked by Hazel to witness Hazel signing her own Will. Both witnesses were certain that Dorothy wasn’t present when they signed what later turned out to be Dorothy’s Will. Neither of them had ever even met her.
Alan disputed the recollection of the witnesses and invited the court to rely on the presumption of due execution, with the evidence not being strong enough to rebut it. Hazel’s witness statement from before she lost capacity was very clear that as Dorothy’s close friend she had arranged the witnessing of Dorothy’s 1999 Will at her work by two of her colleagues when Dorothy had produced the Will at one of their weekly lunches at her workplace. Dorothy, Mr Hallam and Mrs Tomalin had all been present in the same room together and had watched each other sign Dorothy’s 1999 Will.
The charities alleged that the circumstances of the 1999 Will should arouse the suspicions of the court and that as Alan was propounding the 1999 Will, it would be for him to prove that Dorothy had known and approved its contents, which he would be unable to do. Hazel and her husband had signed homemade Wills using a preprinted form at around the same time as Dorothy’s purported 1999 Will and these were almost identical in wording to Dorothy’s Will. The witnesses to Hazel’s Will were also the same as for Dorothy’s purported 1999 Will.
Dorothy had attended a meeting with a solicitor in February 2000 to appoint the solicitor and Hazel, who was present throughout the meeting, as her attorneys. At that meeting Dorothy said she wanted to make a new Will, but significantly, neither Dorothy nor Hazel mentioned the existence of the 1999 Will. Subsequently, Hazel brought the 1999 Will to the solicitor in June 2000 and he made a copy, with Hazel retaining the original.
Alan did not accept that the court’ suspicions should be aroused, but that if they were, the evidence satisfactorily proved Dorothy’s knowledge and approval of the 1999 Will.
Section 9 of the Wills Act 1837 provides:
“No Will shall be valid unless:
- It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
- It appears that the testator intended by his signature to give effect to the Will; and
- The signature is made or acknowledged by the testator in the presence of two of more witnesses present at the same time; and
- Each witness either
- Attests and signs the Will; or
- Acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of the other witness), but no form of attestation shall be necessary.”
In this case, Behrens HHJ reviewed two Court of Appeal authorities on the effect of s9 as coupled with the presumption of due execution where the Will on its face appears validly executed and has a full attestation clause.
Behrens referred to Neuberger LJ (as he then was) in Re Channon  EWCA Civ 1808 and his reference to Re Sherrington  EWCA Civ 326. In Re Sherrington Gibson LJ had quoted from Wright v Rogers (1869) LR 1 PD 678 that “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.”
In Re Channon when Neuberger LJ had referred to the above quote, he had given two reasons for his agreement that the strongest evidence was necessary to rebut the presumption of due execution where the Will appeared on its face to be validly executed and contain a full attestation clause; one practical and one of policy.
“The practical reason is that oral testimony as to the way in which a document was executed many years ago is not likely to be inherently particularly reliable on, one suspects, most occasions. As anyone who has been involved in contested factual disputes will know, people can, entirely honestly and doing their very best, completely misremember or wholly forget facts and events that took place not very long ago, and the longer ago something may have taken place the less accurate their recollection is likely to be. Wills often are executed many years before they come into their own.
Furthermore, when one is dealing with the recollection of witnesses to a Will, one is, […] often, indeed normally, concerned with the evidence of persons who have no interest in the document that has been executed, and therefore to whom the signing of the Will would not, save in usual circumstances, have been of particular significance.
The principled reason for being reluctant to hold that a Will, properly executed on its face, representing the apparent wishes of the testator, should be set aside on extraneous evidence, is that one is thereby declining to implement the wishes of the testator following his death. That would be unfortunate, especially in a case he has taken care to ensure, as far as he can, that his wishes are given effect in a way which complies with the law.”
Behrens also referred to the helpful comments of Arden LJ from Re Channon as to what the strongest evidence actually was:
“As I see it, there is a sliding scale according to which evidence will constitute the strongest evidence in one case but not in another. What constitutes the “strongest evidence” in any particular case will depend on the totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the hurdle to be crossed to meet the requirement of showing the “strongest evidence”, and the stronger that evidence will need to be.”
Arden LJ continued that similarly, if there was only weak evidence of due attestation then it may be easier to displace the presumption of due execution. ‘Mere suspicion’ has to be put to one side. It will generally be necessary for a trial judge to consider why a witness who signed the attestation clause then says it wasn’t signed in the way stated in the attestation. Lack of recollection alone may not satisfy the court, but evidence from both witnesses that they were not near the place of execution on the particular date would be likely to carry more weight.
Knowledge and approval
The fact that a Will has been properly executed, after being prepared by a solicitor and read over to the testator, raises a very strong presumption of knowledge and approval – Gill v Woodall  EWCA Civ 1430.
But if the court’s suspicions are aroused it is for the propounder of the Will to prove that the Testator knew and approved its contents – Wharton v Bancroft  WTLR 693.
Following the two Court of Appeal decisions in Re Channon and Re Sherrington above, HHJ Behrens said he had to look at the disputed evidence as a whole to see whether there was “the strongest evidence”, bearing in mind the sliding scale Arden LJ mentioned, that the 1999 Will had not been validly executed. He bore in mind that “the fallibility of human memory is a factor to be taken into account in deciding” on the question of valid execution.
Behrens referred to the forensic evidence. A forensic examiner had concluded that due to impressions of Mrs Tomalin’s signature and address from when she signed Dorothy’s Will being on Hazel’s Will, Dorothy’s Will would have been placed directly on top of Hazel’s Will when Mrs Tomalin added her details as a witness to Dorothy’s Will. The use of similar ink for both Mrs Tomalin’s signatures was strong evidence that Mrs Tomalin had witnessed both Hazel’s and Dorothy’s 1999 Wills at the same time. Behrens found that Hazel had been incorrect in her recollection that their Wills had been signed at different times.
Examination of the handwriting and different inks used throughout Dorothy’s 1999 Will led the expert to a conclusion that Dorothy had herself written her own name at the top, appointed Hazel as executor and signed at the bottom, but all the other provisions were written by someone other than Dorothy. Behrens could not make a finding on how many people were involved in the actual writing of Dorothy’s 1999 Will, but did find it more probable than not that the provisions represented her wishes at the time she signed the Will.
He was satisfied that on a number of occasions and to different people, Dorothy had said she would leave her house to Hazel. The provisions of the 1999 Will were understandable given this fact and her close relationship to Hazel and her sons who received small legacies.
Significantly, Behrens found that this case was at the lower end of Arden LJ’s sliding scale. Both Mr Hallam and Mrs Tomalin were unaware of the necessary execution formalities. Despite the general fallibility of memory, he accepted the main parts of Mr Hallam’s and Mrs Tomalin’s evidence. He accepted that they were asked to witness only one Will which they believed was Hazel’s and Dorothy had not been present when they signed her Will as her witnesses.
Behrens held that Dorothy’s Will had not been executed in accordance with s9 and should not therefore be admitted to probate.
Knowledge and approval
Following his finding on validity, Behrens did not have to decide on the issue of knowledge and approval, but did deal with it briefly. The fact the 1999 Will was homemade, prepared by Hazel as principal beneficiary, there was uncertainty over who inserted the bequests and when this had been done, there was no evidence it was read over to Dorothy and it was not properly attested, all aroused the suspicions of the court.
However, he found that Dorothy did know and approve the contents of the 1999 Will. Dorothy had actually signed the Will, on several occasions she had said she would leave her house to Hazel, Hazel was a lifelong and close friend, Dorothy had no close relatives and the terms of the 1999 Will were fairly straightforward and easy to understand, were all factors which led him to this finding.
- Remember that there is a presumption of due execution where a Will on its face appears validly executed and has a full attestation clause.
- Although only the strongest evidence will rebut the presumption of due execution, there is a sliding scale of what evidence will constitute this and this will vary from case to case.
- Look to see how strong the evidence of due attestation is as if there is only weak evidence of due attestation then it may be easier to displace the presumption of due execution.
- If you are present at the execution of a Will, keep detailed notes of the meeting, including details of how the s9 formalities were complied with.
- If you are not present when a Will is executed check the execution looks valid on its face when it is returned to you. Raise any issues you identify straight away with the testator.
- Remember to enclose detailed signing instructions if you send a Will to the client for its execution.
- If the circumstances of the Will could excite the suspicions of the Court, gather as much evidence as possible that the testator knew and approved its contents.
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