The High Court has recently handed down a judgement concerning the formalities to be followed when executing a Will
The law concerning the execution of a Will was established almost two hundred years ago and is governed by Section 9 of the Wills Act 1837.
Further guidance has however now been given by the Court's decision in Wilson v Lassman  EWHC 85 (Ch)
The facts of the case are briefly as follows:
Paul Wilson (“the claimant”) did not have a good relationship with his father, Gerald Wilson (“the deceased”). The deceased’s Will failed to provide for the claimant, instead naming the deceased’s neighbour, Malcolm Lassman, as executor and sole beneficiary. The claimant initially sought to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However the statutory time limit for bringing the claim had expired. At the hearing of the claimant’s application for an extension of time to bring his claim the validity of the Will was raised with questions being raised about its execution.
As part of their investigations the claimant’s solicitors had discovered anomalies in the account given by the witnesses to the Will when they were questioned about the method of its execution. The statement of the first witness appeared to indicate that the Will had not been signed in the presence of the attesting witnesses and that the second witness had not been present at the time the first witness signed the Will.
The legal requirements for signing a Will
The statutory requirements of Section 9 of the Wills Act 1837, as amended by Section 17 of the Administration of Justice Act 1982, provides that a Will is invalid unless:
a.) it is in writing, signed by the testator or by some other person in his presence and at his direction;
b.) it appears the testator intended by his signature to give effect to the Will;
c.) the signature is made or acknowledged in the presence of two or more witnesses present at the same time;
d.) each witness either signs or attests the Will or acknowledges his signature in the presence of the testator but not necessarily of any other witness.
Issues in the case
The claimant argued that the Will was invalid due to failure to comply with Section 9(c) of the Wills Act 1837. Written evidence provided by the first witness stated that the second witness arrived by car only after the Will had been signed by the first witness.
Had this been the extent of the evidence available the Will would have been declared to be invalid. However, at the hearing the first witness provided a different account of the execution of the Will. He agreed with the evidence provided by the second witness that both witnesses had been approached at the same time by the deceased and that they had been together when they witnessed the Will.
In light of the disparity between the accounts provided by the witnesses, medical evidence was placed before the Court which confirmed that the first witness suffered memory loss as a result of dementia.
The Court's decision
the court concluded that the first witness initially provided untrue evidence as to the circumstances of the execution of the Will and that this was most likely as a result of his medical condition. The evidence of the second witness was regarded as being unimpeachable and so was relied upon. As a result, the Court
was satisfied that the Will was properly executed and attested and as such was valid.
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