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Case law examples - lack of due execution of a Will

View profile for Jordan Davies
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Case law examples - lack of due execution of a Will

Following on from our last article - How to know if a Will has been executed properly – considering lack of due execution - we are now looking at some case law examples.

Looking at past case law helps us consider real life cases and how the court viewed them.

We must first consider the case of Wright v Rogers [1869] which declares that “the strongest evidence” is required in order to challenge due execution. If sufficient evidence cannot be provided, the presumption of due execution shall remain.

The case of Re Whelan [2015] considers the witnesses and who they are in relation to the terms of the Will and its beneficiaries. Here, the testator left her estate to her long term friend. The Will was witnessed by two of the friend’s employees who had never met the testator. The two employees gave evidence stating that they thought that they were witnessing the friend’s Will, and not the testators Will – as they had never met this person! The signature that they witnessed was the friend signing the document, not the testator, and this therefore resulted in lacking due execution. 

In Channon v Perkins [2006] both of the two witnesses provided evidence stating that they did not sign the Will in the testator’s presence, however, the judge considered their evidence as poor and vague and stated that it was insufficient to evidence lacking due execution. 

In Murrin v Matthews [2006] the claimant was successful in rebutting the presumption of due execution. The two witnesses could not be traced and so the court concluded that there could not be any evidence to support due execution. The outcome of this case is quite unusual. In recent practice, it could be considered very risky to run a case to trial on this basis.

In the case of Burgess v Penny & Anr [2019] the testator has three children. One of the children assisted the testator in drafting and executing the Will. Upon the testator’s death, it transpired that this Will was grossly in favour of the child who assisted in its drafting and execution. The other two children challenged the validity of the Will. In the first instance, it appeared as though there had been due execution. However, upon hearing evidence from one of the witnesses, it transpired that this witness had not seen the testator or the other witness sign the Will, therefore rebutting the presumption of due execution deeming the Will invalid.

Whilst case law is a useful tool, no two cases are ever the same and matters such as this must be dealt with on a case by case basis. If you feel that a Will has not been duly executed, or you are in a position whereby you need to defend the due execution of a Will, please get in touch with our specialist contentious probate solicitors on 0161 696 6178.

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