The importance of attesting witnesses
Posted on 26th September 2024
Recently two sisters went to the High Court due to a dispute about their mother’s Will.
When someone makes a Will they must sign it and then witnesses must confirm or ‘attest’ they believe the signature is theirs. They must also sign the Will.
Traditionally, when a Will is challenged the attesting witnesses come to court to give evidence. In this case the Court had to re-examine this rule.
Who challenged the Will?
One sister challenged her mother’s Will which made her sister the executor and beneficiary of the estate. She said the Court should set aside the Will because her mother didn’t understand the implications of signing the Will and her sister had undue influence and committed fraud. In response, her sister said she had chosen not to see her mother before her death.
What happened in Court?
The Court accepted the Will and dismissed all the points challenged. However, there was an unresolved issue.
The Will was executed at the mother’s home and witnessed by the solicitor who prepared it, along with a colleague. The sister executing the Will didn’t call either of these attesting witnesses to give their evidence. She said she didn’t know they should attend, and a letter from her solicitor confirmed she ‘simply forgot’ to call him.
Lawyers for the sister challenging the Will claimed this meant the legal requirement to prove a Will is valid hadn’t been met. They argued this was a ‘threshold’ or ‘gateway’ requirement so the Court couldn’t grant probate. They said the failure to call either witness meant the Court couldn’t rely on the notes made by the solicitor.
What happened next?
The Court accepted that the attesting witnesses were both employees of a reputable legal practice. It thought it unlikely the solicitor invented his notes or lied about his attendance and, in fact, this wasn’t suggested. If this had been part of the case, the solicitor would have had to attend the Court.
However, the Court agreed there hadn’t been a properly considered and full argument about attesting witnesses. Was it still a requirement for them to attend Court or provide written evidence before admitting a Will for probate?
As a result, the Court made an interim judgment, approving the Will and adjourning the case until the solicitor could give evidence.
In the end…
The process of disputing a Will is time consuming and frustrating. In the end people often resolve their differences out of court. That’s what happened in this case.
A new application for probate wasn’t opposed and, as a result, there was no need for the solicitor to attend court.
The best way to avoid disputes about Wills is to make sure all your friends and relatives know your intentions in advance. It’s also important to make sure you have proper witnesses when you sign your Will.
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