What Happens When Will Witnesses Change Their Minds

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss what happens when Will witnesses change their mind

Contesting a Will with Willclaim.com – the significance of the Will witnesses

Will witnesses are necessary for the proper “execution” of a Will given the requirements of s.9 of the Wills Act 1837. This can be found via the following link:

Wills Act 1837 (legislation.gov.uk)

S.9 of the Wills Act 1837 provides:

9Signing and attestation of wills

No will shall be valid unless—
(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)it appears that the testator intended by his signature to give effect to the will; and

(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d)each witness either—

(i)attests and signs the will; or

(ii)acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.

For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made on or after 31 January 2020 and on or before 31 January, “presence” includes presence by means of videoconference or other visual transmission.
In other words and in broad terms, the testator’s signature on the Will must be witnessed by two individuals who each then sign it themselves. Our very early blog referred to in the link below provides further and/or additional information:

How to contest a will – the importance of the Wills Act 1837 | Willclaim Solicitors

It is not unusual for an issue to arise many years later about whether in fact this was done. Sometimes the witnesses may simply have forgotten but there can be other more “sinister” causes.

The attestation clause

The problem for the Courts (and thereby for a company such as our own engaged in bringing and/or defending Will disputes) is that any witness who raises this type of doubt about the circumstances in which the Will was signed and/or witnessed, are attacking their own credibility. This is because when the Will is signed and/or witnessed, it will commonly have an “attestation” clause such as the one which follows, certifying that the signing by the testator and the witnesses own signatures have complied with s.9 of the Wills Act 1837:

Attestation – “Signed by [your name] in our joint presence and then by us in theirs”.

In other words they previously certified that everything was in order but now (often many years later) they are casting doubt on this. Naturally, the courts are going to be sceptical and seemingly demand “the strongest [sic – additional] evidence” as proof.

The recent decision of James v Scudamore [2023] EWHC 996 (Ch)
The law in this discrete area was carefully analysed by HHJ Paul Matthews who was the Judge in this case. For a full copy of the decision, the reader can follow the link below:

James v Scudamore & Ors [2023] EWHC 996 (Ch) (03 May 2023) (bailii.org)

One of the issues was the claim by one of the Codicil witnesses that she signed it before the testator. The Judge rejected her evidence but provided a helpful summary of the law in this area which we have copied and pasted below.

110. A more modern case to the same effect is Sherrington v Sherrington [2005] EWCA Civ 326. There, Peter Gibson LJ, giving the judgment of the court (himself, Waller and Neuberger LJJ) said:

“42. It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has ‘the strongest evidence’, in Lord Penzance’s words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator’s signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness.”

111. It may also be noted that, at [67], the Court of Appeal accepted that, where the presumption of due execution applied, it would presume the signature (or acknowledgment of the signature) of the testator and the attestation of the witnesses to have taken place in the correct order.
112. In Channon v Perkins [2005] EWCA Civ 1808, Neuberger LJ (with whom Mummery and Arden LJJ agreed) said:

“7. There is good reason for the requirement that one must have ‘the strongest evidence’ to the effect that a Will has not been executed in accordance with section 9 when, as in this case, it appears from the face of the Will that it has been properly executed in all such respects and where there is no suggestion but that the contents of the Will represented the testator’s intention. Where a Will, on its face, has been executed in accordance with the section 9, and where there is no reason to doubt that it represented completely the wishes of the testator, there are two reasons, one practical and one of principle, why the court should be slow, on the basis of extraneous evidence, to hold that the Will was not properly executed.

8. The practical reason is that oral testimony as to the way in which a document was executed many years ago is not likely to be inherently particularly reliable on, one suspects, most occasions. As anyone who has been involved in contested factual disputes will know, people can, entirely honestly and doing their very best, completely misremember or wholly forget facts and events that took place not very long ago, and the longer ago something may have taken place the less accurate their recollection is likely to be. Wills often are executed many years before they come into their own.

9. Furthermore, when one is dealing with the recollection of witnesses to a Will, one is, as my Lord, Mummery LJ, pointed out in argument, often, indeed normally, concerned with the evidence of persons who have no interest in the document that has been executed, and therefore to whom the signing of the Will would not, save in usual circumstances, have been of particular significance.

10. The principled reason for being reluctant to hold that a Will, properly executed on its face, representing the apparent wishes of the testator, should be set aside on extraneous evidence, is that one is thereby declining to implement the wishes of the testator following his death. That would be unfortunate, especially in a case he has taken care to ensure, as far as he can, that his wishes are given effect in a way which complies with the law.”

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.

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