Timely reminder : Witnessing a Will

 In Wills

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In these uncertain times practitioners are (rightly) concerned with witnessing of Wills but there are older Wills in existence which can also prove to be problematic. One example of this was recently seen by the author. It involved a potential challenge to a Will. Crucially it involved the witnessing of a Will.

But the first question to be considered was whether the Will was valid. As readers know this involves showing that the person had the ability to make a Will i.e. that the testator was over 18 years of age and that he/she had the necessary testamentary capacity (the Banks v Goodfellow [1870] LR 5QB 549 test) and the necessary testamentary intention.

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The second question is whether the requirements under the Wills Act 1837 section 9 (as amended) were met. Practitioners will recall that these requirements are that the Will 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 or 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 any other witness)’.

If the above is met then the Will is valid.

But even if all the above is met the matter does not end there as the Will may still be challenged. Readers will recall the usual grounds but the author wishes to draw attention to a possibly rare one namely that the Will is challenged on the grounds that the testator’s signature must be made in the ‘presence of two or more witnesses present at the same time’ (s.9 (c )).

If the other side challenges on the above ground then the witnesses (if still alive) will need to be asked about the circumstances surrounding the witnessing of the Will. In the usual case (and memories permitting) witnesses will be happy to divulge this information but what happens if they agree to do the above but adamantly refuse to be involved in any subsequent trial?

The answer is to use Part 34 of the CPR and apply for a witness summons. This means that (if approved) the court can order the witness to attend court and give evidence on a particular date.

The foregoing will appear easy enough but you must consider that if you force someone to come to court, they may be aggrieved and non-cooperative! If they do not attend, they (if the case is heard in the County Court) will be liable to costs incurred as a result of their non-attendance/cooperation.

If the witness has already made a statement but refuses to come to court the statement can still be used but it will lack credibility as the witness is not there to be subject to cross examination.

In conclusion, do not forget that you may need to rely on the witnesses to the Will and be ready to weigh the consequences of applying for a witness summons as a last resort.  In these times those drafting Wills should ensure that all their paperwork on witnessing Wills remotely are up to date and would absolve them from liability as much as possible.

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