The currently unreported case of Smith v Ganning (PT-2021-MAN-000074) is a helpful example of a Will due execution case. Although the trial took place last year, a copy of the transcript has only recently been received and can be found here.
Stephanie Ewan, Associate Solicitor at Myerson, together with Tom Gosling at 23 Essex Street Chambers, acted for the successful claimant, Laura Smith.
Laura’s mother, Alison, allegedly signed a Will shortly before her death leaving her entire estate to her husband, Michael Ganning. Mr Ganning was also appointed as sole executor. The Will was a “homemade Will” and was purportedly witnessed by two people present at the same time in compliance with section 9 of the Wills Act 1837.
Following Alison’s death, Laura was informed that the Will had not been properly witnessed and that it had, instead, been signed in the presence of only one witness (and Mr Ganning). If correct, the Will was invalid and Alison’s estate would pass under the intestacy rules to Mr Ganning, Laura and her brother.
Both witnesses were contacted who confirmed Laura’s understanding of the execution of the Will to be correct. Proceedings were subsequently issued for:
- A declaration that the Will was indeed invalid;
- The Grant of Probate obtained by Mr Ganning be revoked; and
- A new Grant of Letters of Administration be issued.
Mr Ganning, who acted in person, defended the claim throughout by maintaining that the Will had been properly executed.
A two-day trial took place on 10th – 11th March 2022 in the Business & Property Courts in Manchester before HHJ Halliwell.
Both witnesses gave evidence at trial, with one attending in person and another participating via video-link.
One of the witnesses – Kathryne Weaver – gave evidence that she saw the Will being signed by Alison at The Christies together with Mr Ganning. The other witness – Dawn Wilson – confirmed that she signed the Will later in Mr Ganning’s kitchen. Crucially, Alison, Ms Weaver and Ms Wilson were not all present together at the time the Will was signed by Alison.
Another important piece of evidence which weighed against Mr Ganning was a recording of a telephone conversation Laura had made. In this call, he admitted that the witnesses were not present at the same time. The recording was heard in court with Mr Ganning claiming the conversation had been taken out of context and that he had instead been answering another question at the time.
Giving judgment on 11th March 2022, HHJ Halliwell found in Laura’s favour, stating:
“I am satisfied that in the overall context of the evidence as a whole, the evidence of Mrs Wilson and Mss Weaver on the critical issue of execution is more plausible than the evidence of Mr Ganning.
Mr Gosling reminds me that, in the case of a will duly executed on its face, there is a presumption of due execution. He is right to do so. However, in view of the clear and unambiguous testimony of the two witnesses, Mrs Wilson and Miss Weaver, I am satisfied that the presumption has been successfully rebutted in the present case.”
As such, the Will was declared to be invalid and the Grant of Probate revoked. An independent administrator has since been appointed to deal with the estate administration in Mr Ganning’s place.
Probate claims of this nature do not often reach as far as trial but, when they do, there is often some room for doubt. Unusually, this was not the case in the Smith v Ganning matter mainly due to the clear and compelling evidence provided by both witnesses.
The case is a reminder that witnessing a Will is an important role and one which could lead to the witness giving evidence in court should a dispute later arise. This is something that can easily be overlooked by private client practitioners who may not always consider or advise clients on the need for suitable witnesses and the obligations witnessing a Will may entail.
Stephanie is an Associate Solicitor in Myerson’s Contentious Trust and Probate team. She is a member of ACTAPS (the Association of Contentious Trust and Probate Specialists) and was named a “rising star” by the Legal 500 for 3 consecutive years (2021-2023).