Image of someone writing a will

Due execution of wills

The recent unreported case of Smith V Ganning [2022] provides a useful reminder of the importance of ensuring that wills are validly executed in accordance with the requirements of the Wills Act 1837 (“the Act”).

Background

Alison Ganning died on 20 May 2016.  She had made a homemade will dated 5 April 2016. By that will she left her entire estate to her husband, Michael. Her daughter, Laura, alleged that the will had not been validly executed and that accordingly, her mother had died intestate. As such, Mrs Ganning’s estate would fall to be distributed under the intestacy rules with the result that whilst Michael would still receive the majority of her estate, Laura and her brother, Robert would also be entitled to a share thereof.

Laura alleged the will had not been validly executed because her mother made it in the presence of one witness only.

Michael disagreed and after considerable delays eventually in May 2021 Laura issued proceedings seeking a determination that her mother had died intestate. Michael had by this time obtained a grant of probate in relation to Mrs Ganning’s estate and accordingly, Laura also sought an order that this be revoked.

The Law

Under 9 of the Act no will shall be valid unless:

(a)          it is in writing and signed by the testator, or by some other person in his presence and by his direction; and

(b)          it appears that the testator intended by his signature to give effect to the will; and

(c)           the signature is made or acknowledged by the testator to give effect to the will; and

(d)          each witness either:

(i)            attests ad signed the will; or

(ii)           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 evidence

The will had been signed (or purported to have been signed) by two witnesses, Kathryn Weaver and Dawn Wilson. Laura gave evidence that only Kathryn had been present when her mother signed the will, Dawn having added her signature at a later stage. Laura said that she had not witnessed Mrs Ganning’s signature of the will.

Michael, on the other hand, gave evidence asserting that the will was signed by Mrs Ganning and the two witnesses on the evening of 5 April 2016 at Christie’s hospital where Mrs Ganning was a patient at the time. He contended that he was also present when the will was signed by Mrs Ganning and the two witnesses.

Both witnesses gave evidence at the trial.

At the time of execution of the will Dawn lived next door to the Gannings. She gave evidence that Michael called her and asked her to come to their house to sign the will, which she did in the kitchen of the Gannings’ house.  She could not remember the precise date when she did so but confirmed that when she did only she and Michael were present.  Mrs Ganning was not. She confirmed that when she signed the will she could see Kathryn’s signature had already been added.

As to Kathryn, she gave evidence that Mrs Ganning signed the will in her presence and she then signed the will herself.  At the time Mrs Ganning was in hospital and Kathryn said she signed the will at the hospital during a visit to see Mrs Ganning. She stated that the only persons present at the time were the Gannings and herself. Dawn was not present.  She also confirmed that the space for Dawn’s signature was empty.

The judge’s findings

Whilst there is a presumption of due execution of any will which on its face appears to have been executed in accordance with the provisions of the Act, that presumption can be rebutted where the evidence is such as to demonstrate that the execution was not valid.

In this case, notwithstanding Michael’s evidence, the judge held that she preferred the evidence of the two witnesses. Unlike Michael, they were independent witnesses with no interest in the outcome of the proceedings. The judge considered that there were clear and consistent in their factual testimony about the critical issue of the circumstances in which the will was signed and witnessed and there was no evidence to suggest that they had colluded with one another or indeed, Laura. In light of the clear and unambiguous evidence of the witnesses on the critical issue of execution, the judge was satisfied that the presumption had been successfully rebutted in this case.

Judgment

In the circumstances, the judge found that the will had not been executed in accordance with the formalities of the Act and was therefore void. She pronounced against the 2016 will and made an order revoking the grant of probate and declared that Mrs Ganning had died intestate. She also made an order providing for the appointment of a new personal representative, although the identity of who that person was to be was adjourned to be heard on another date, the court determining that it should not be either Laura or Michael.

Conclusion

Although unreported, this case is a useful reminder of the importance of ensuring that the formalities of the Act are complied with and where they may have not been, that the due execution of the will should be challenged even if, on its face, the will appears to have been validly executed.

What to do if you are a beneficiary and need legal advice

If you are, or would be a beneficiary under a testator’s estate if their last will was held to be invalid and think you may have a claim to challenge the validity of a will which you would like to discuss, please feel free to contact Ally Tow by telephone on 07894 512991 or by email at atow@boyesturner.com

Ally Tow is a Senior Associate at Boyes Turner LLP.

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