Formal occasion

The formalities required to execute a valid will in line with of section 9 of the Wills Act 1837 were explored in a recent interesting High Court decision.

Watts v Watts challenged the validity of Valerie Watts’ will dated 12 January 2011, brought by the deceased’s daughter against the deceased’s son, who was the sole beneficiary. The daughter sought to propound an earlier 1999 will, which split the estate equally between the two of them.

The circumstances of the deceased’s last will were subject to some dispute. It was agreed that she had made an appointment with will draftsmen in early January 2011, but was unable to keep the appointment as she was taken in to hospital. Her sister gave evidence that, at the deceased’s direction, she obtained a prepaid will form, and wrote the deceased’s instructions
by hand.

Whether the deceased intended to disinherit her daughter was of some dispute and, although no claim of undue influence was specifically discussed, the judge did note that both the son and the sister were disinclined to see the daughter inherit anything.

Despite the chronic state of her illness, and the proximity of the execution of her will to her death, there was no suggestion that the deceased did not
have capacity to make a will.

The circumstances of the signing and witnessing of the will were examined in detail by the judge. Section 9 of the Wills Act 1837 of course states 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 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), but no form of attestation shall
  be necessary.

The son claimed that he was merely in the room when the deceased signed the will and had passed her a pen. He stated that he asked a nurse to come in to the room to witness his mother sign a document, but that he did not specifically say it was a will. He rejected the accusation that he had signed the document, whether at his mother’s direction or otherwise.

Valerie’s sister was also in the room, and acted as a witness. She said that she saw her sister sign the will and the nurse acting as second witness. She also disputed that the deceased’s son had signed the
will at all.

The nurse said she did not know the document was a will and that being a witness was against hospital policy. She said that the son had asked her to come
in and see his mother, and that when she went in to the deceased’s room she was asked to witness his signature as his mother’s next of kin. She further stated that she did not hear the deceased say anything while she was in the room nor did she see the sister sign
the document.

The daughter relied on a handwriting expert who found strong positive evidence that the deceased did not sign the signature on the 2011 will. The son’s handwriting expert was referred to as ‘a graphologist with no scientific training’.

As the will had been signed, dated and witnessed, the presumption of due execution applied. The burden therefore fell on the daughter to prove the will was not executed correctly.

The judge found the 2011 will to be invalid, and declared the 1999 will as valid. The son had signed the will and simulated his mother’s signature.

It shows that cases are decided on the strength
of witness evidence, and not on their numbers alone
– an issue that many potential claimants will feel prevents them from pursuing their claim.

Matthew Evans is a partner at Hugh James

He writes the regular vulnerable clients comment in Private Client Adviser