This case illustrates the need for care when approaching probate claims.
C sought an order, pronouncing, against his late father’s will, and revoking the grant of probate obtained by D as executor and sole beneficiary under the will. C contended that the will was not validly executed contrary to S.9 Wills Act 1837.
The deceased signed his will before presenting it to M and B for their signature. C instructed an enquiry agent, who questioned as to the circumstances in which the will was signed and witnessed. B, indicated, i), that the will had not been signed by the deceased in the presence of the attesting witnesses and, ii), that, at the time when the first attesting witness signed the second attesting witness was not present. M always said both witnesses were present when witnessing the will.
B’s first statement, for C, was dated 15.1.2016. B corrected the position a statement, for D, dated 26.1.2016 and gave further clarification in a third statement. D alleged due execution of the will, and the burden was on him to make good that allegation.
The issue was whether, when the deceased acknowledged his signature on the will, he did so in the presence of both witnesses present at the same time, or whether there was never any such acknowledgement to the 2 witnesses at the time when they were both present with the deceased.
At trial it emerged that the hospital appointment to which B mentioned he had to attend, when seeing the investigator, was an appointment at the memory clinic. Evidence was obtained that B suffered from memory loss arising from dementia. It explained his mistake, and the human desire to cover over his mistake.
The Court accepted the will had been correctly witnessed, rejected C’s challenge and ordered C to pay costs.
Where the will contains, as this will did, an attestation clause, the strong evidence is required to rebut the presumption of due execution (Sherrington v Sherrington  EWCA Civ 326 and Channon v Perkins  EWCA Civ 908). The presumption reflects the reality that those attesting a will may be called upon to recollect the circumstances of execution long after attestation and where memories of facts which are not, to the attesting witnesses, of any particular importance may well have diminished, or disappeared.
Here, as in Kayll v Rawlinson  WTLR 1443, the attestation clause did not accurately reflect events. The deceased signed the will before presenting it to the attesting witnesses to sign. In those circumstances, the attestation clause cannot give rise to a presumption of due execution. The attesting witnesses evidence would, if accepted, establish due execution; it would be a different form of due execution, based upon an acknowledgment by the deceased of his signature on the will, before the 2 witnesses when all 3 were together, rather than upon the witnesses having witnessed the signature of the deceased, as stated in the attestation clause.
The presumption of due execution, arising from an attestation clause can only, be a presumption in accordance with the terms of the attestation clause. Where, it is known and agreed that the attestation clause does not reflect the facts of execution and attestation and where due execution is alleged, on another basis, there can, be no room for the application of the presumption. In those circumstances, due execution must be established, by those propounding the will.
C’s solicitor never met or spoke with B or M, instead reliance was placed on an investigator. One attesting witness was visited on Boxing Day. There was no careful investigation of credibility, which proved to be a failing, as M “was an impressive witness” and his evidence as to the events was “carefully given, reliable and wholly credible.” By not carefully analysing M’s account, there had been a failure to evaluate the strength of his evidence and the likelihood of the court accepting his account over B’s initial account The decision was reached on “the unimpeachable evidence of” M.
C’s questionnaire was scant of investigative detail. It was held that “It does not seem to me that Mr M… can be criticised for not giving answers to questions that were not asked…” The attention to detail is imperative.
Witnesses ought to be given the opportunity to consider and prepare their evidence. C’s approach was criticised: “There was no forewarning of the questions in the questionnaire and, in the case of the statement, no opportunity to consider, at any length, its contents prior to signing.” Furthermore, it is prudent to allow witnesses time to consider documents. The court held that B “was in no mood to read over his answers to the questionnaire and did not, in fact, do so and by the fact that, on the occasion when the statement was signed”, his concern “was to get to his medical appointment and, to that end, ‘to get rid of’ the investigator.”
The costs principles summarized in Kostic v Chaplin and others  EWHC 2909 (Ch) were applied. C would not fall within either ground identified in Spiers v English  P 122 for him, as a losing party, not to pay costs. Carefully evaluation might have led to C not being exposed to a costs order. If the witnesses had been properly proofed and the merits scrutinized after the correcting statement of B was disclosed, C might have avoided costs exposure or limited his exposure.
The case is a warning that parties should not be tempted into fruitless challenges to a will believing that their costs will be defrayed by others, or that they will escape condemnation in costs. Furthermore, even where the circumstances justify an initial investigation, the time may come when that investigation is no longer justified.