In a dispute between two daughters over the validity of their mother’s will, the England and Wales High Court (EWHC) had to re-examine the traditional rule that an available attesting witness must be called to give evidence where a will has been challenged.
In the case, Andrea Ball (the defendant) challenged a will made by her mother Michelle Wilkins (the deceased) in June 2016. The will named the defendant’s sister Corinne Dunstan (the claimant) as executrix and residuary beneficiary of her estate. The defendant alleged that the will should be set aside for want of knowledge and approval, undue influence and fraudulent calumny. The claimant counter-argued that she had never tried to prevent the defendant from seeing the deceased and the will had resulted from a progressive estrangement between the two.
Ultimately, the EWHC accepted the claimant’s version of events and dismissed the defendant’s challenge on all grounds. However, one vital and highly contentious issue remained to be resolved. The will had been executed at the deceased’s home and witnessed by the solicitor who prepared it and a colleague who also attended. However, the claimant did not call either of these as attesting witnesses to the execution of the will. This led the defendant’s counsel to argue that, in the absence of at least one attesting witness, the claimant could not satisfy the statutory and legal requirements of proving the will in solemn form. Citing the 1858 case of Belbin v Skeats, as well as Phipson on Evidence, he said the failure to call an attesting witness was a ‘threshold’ or ‘gateway’ failure. He argued that the claim for pronouncement of probate was thus doomed.
The claimant had given evidence that she did not know such a witness had to be called, and a letter from her solicitors confirmed that she ‘simply forgot’ to call him. However, the defendant’s counsel asserted this was not an adequate reply and that the court should draw an adverse inference from the failure to call either witness, especially the solicitor. As a result of failing to call him, it was alleged, no weight could be placed on his attendance notes.
The EWHC had to address the matter and declined to draw an adverse inference from the solicitor’s non-appearance. ‘The attesting witnesses were both employees of Stephens Scown LLP, a reputable firm of solicitors’, the court said. ‘[The solicitor] is, without more, unlikely to have invented material or lied in his attendance note, and no such allegation is pleaded or was suggested in court. Had that been an allegation, I have no doubt that [the solicitor] would have been called by [the claimant].’ The EWHC duly accepted that the facts set out in the solicitor’s attendance notes were likely to be true.
However, the court noted that it had not had the opportunity of full argument and properly considered authority on whether it was still necessary to require an attesting witness to attend the hearing or require written evidence from one of them before admitting a will to probate in solemn form, when there was no longer a dispute as to due execution and no other claim as to capacity, want of knowledge and approval, or undue influence. ‘It may be arguable that it is not’, the EWHC said.
Noting the antiquity of the alleged rule, the EWHC decided to give an interim judgment approving the will and adjourning the trial until the attesting solicitor could be called to give his evidence and be cross-examined. However, in the event, discussions between the parties resolved the dispute out of court. The claimant issued a new application for probate which was not opposed. A resumption of the hearing was therefore not required.
The position is now that the parties are agreed that the will should be pronounced in solemn form and the claimant shall be granted probate as executrix thereunder (Dunstan v Ball, 2024 EWHC 2105 Ch).
