In 1998 the testator made a will naming his wife, the defendant, as sole beneficiary. The will provided for the signature of the testator and contained an attestation clause with space for the name, address and occupation of the two witnesses, but no separate designated space for each witness to place his signature in addition. The witnesses filled in the required information and did not leave their signatures. In 2012 shortly before his death the testator made another will naming his son, the first claimant, as major beneficiary after legacies to his grandson, the second claimant, and others. The 2012 will contained the testator’s signature and that of the two witnesses. The claimants brought proceedings seeking proof in solemn form of the 2012 will. The defendant counterclaimed asking for proof in solemn form of the 1998 will. The 2012 will was lodged with the court under the provisions of CPR r 57, but the 1998 will was not. At the hearing the judge was unable to find that the 2012 will had been correctly witnessed, or that the deceased knew and approved its contents. As for the 1998 will, the judge recorded that the defendant had been unable to produce a copy properly signed by the witnesses, and since she had failed to call either of them to give oral evidence about the circumstances in which it was executed, the evidence was inadequate to find that it had been duly attested in the manner required by law. Accordingly the judge made a finding that the deceased had died intestate. The defendant appealed. The Court of Appeal directed that the original 1998 will be produced and heard oral evidence from one of the attesting witnesses to the 1998 will.
On the appeal—
Held, appeal allowed. Section 9 of the Wills Act 1837, as substituted by section 17 of the Administration of Justice Act 1982 in relation to wills taking effect after that year, provided that : “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.” In relation to deaths before 1 January 1983, section 9 of the 1837 Act stated that: “No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.” It was to be noted that, although the substituted section 9 required each witness to attest and sign the will, the original version of the section did not use the verb “sign” except in relation to the signature of the testator. In relation to the witnesses, the requirement was that they should “attest and… subscribe” the will. That was not intended to be a change of any substance. The purpose was, rather, to use the ordinary modern English word “sign” rather than the more archaic “subscribe”. The requirement, since 1983, for an attesting witness to “sign” the will should be construed as meaning the same as the previous requirement that the witness should “subscribe” the will. The change in wording had the potential to cause confusion, however, if it was interpreted as suggesting that a “signature” was required, in the sense of an identifiable and probably unique personal mark, as when signing a cheque or other formal document, rather than merely writing one’s name with the intention that the act of writing it should operate as an attestation. The latter sense was perhaps more easily conveyed by the more antiquated language of subscription, but in the present context the requirement for an attesting witness to sign the will may still be satisfied in the same way. Otherwise, the amendments made in 1982 would have had the wholly unintended, and regrettable, effect of introducing a new restriction on the form of writing that was needed to constitute an attestation of the will by a witness( paras 28–31).
The fact that the judge did not have a complete copy of the 1998 will was a serious procedural irregularity that should never have been allowed to happen. It had long been a requirement in probate claims that “Any testamentary document of the deceased person in the possession or control of any party must be lodged with the court”: see CPR rule 57.5(1). “Testamentary document” was widely defined, by rule 57.1(c), as meaning “a will, a draft of a will, written instructions for a will… and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed”, and “will” included a codicil. By virtue of rule 57.5(2), unless the court otherwise directed, the testamentary documents must be lodged in the “relevant office” by the claimant when the claim form was issued, and by a defendant when he acknowledged service. Furthermore, the claimant and every defendant who acknowledged service of the claim form was obliged by rule 57.5(3) and (4) to file written evidence, at the same early stage, which must: “(a) describe any testamentary document of the deceased of which he has any knowledge or, if he does not know of any such testamentary document, state that fact, and (b) if any testamentary document of which he has knowledge is not in his possession or under his control, give the name and address of the person in whose possession or under whose control it is or, if he does not know the name or address of that person, state that fact.” It was essential that the rule about testamentary documents in CPR 57.5 was adhered to so that the court had available to it as soon as possible the material necessary to decide whether the existing parties were the correct parties, whether new parties should be added and whether notice of proceedings should be served on non-parties. In order to allow sufficient time for a defendant to comply with this rule, the time for acknowledging service in probate cases was extended to 28 days: see rule 57.4(2). A further incentive to compliance with the rule was provided by rule 57.5(5), which stated that: “Except with the permission of the court, a party shall not be allowed to inspect the testamentary documents or written evidence lodged or filed by any other party until he himself has lodged his testamentary documents and filed his evidence.”(paras 33–34)
Inspection of the original 1998 will revealed that the printed form of the 1998 will pre-dated the 1982 amendments to section 9 of the 1837 Act. In short, the original of the 1998 will was clearly consistent with the oral evidence of the attesting witness, and if the document was read as a whole, in the light of the printed directions, it gave every appearance of having been validly executed. Furthermore, the presence on it of the signature of a person who was apparently a solicitor provided some reassurance that the document was genuine, as well as corroboration of the defendant's statement to the court that, after the 1998 will had been executed, she took it to her (or possibly the deceased’s) solicitors who sent it on to the Winchester Probate Registry for safe keeping ( paras 40–41, 43)
There was strong public interest in valid testamentary dispositions being upheld. That public interest was reflected in many of the special procedural provisions which apply to contested probate proceedings, including those relating to the lodging in court of testamentary documents, and the early provision of written evidence about them already mentioned. Other special provisions included: (a) the requirement in CPR 57.4(1) for a defendant who was served with a claim form to file an acknowledgment of service, with an extended period of 28 days for doing so; (b) the requirements in rule 57.7 relating to the contents of statements of case, and the need to give specific particulars of any contention that a will was not duly executed, that the testator lacked testamentary capacity, or that the execution of a will was obtained by undue influence or fraud; (c) the obligation, under rule 57.8, to bring a counterclaim, if a defendant wished to propound a different will; (d) the rule that a default judgment could not be obtained in a probate claim; and (e) the disapplication of the usual rules on discontinuance of actions in CPR Part 38. No doubt because of those special features of probate practice, contentious probate claims in the High Court were assigned to the Chancery Division, and probate claims in the County Court may only be started at hearing centres where there was also a Chancery district registry, or in the County Court at Central London. More generally it was the duty of a Court of Probate to give effect, if it could, to the wishes of the testator as expressed in testamentary documents. If the judge had had those considerations in mind, as well as the unsatisfactory procedural history, she ought to have concluded that she could not safely pronounce against the 1998 will without it being produced to the court, and without an opportunity for evidence to be given by at least one of the attesting witnesses. The special importance of hearing evidence, if at all possible, from an attesting witness was reflected in the long-established rule that such a witness was treated as a witness of the court, whose duty it was to give to any party who asked for it an account of the circumstances in which the will was executed. Furthermore, the cases established that at least one attesting witness must be called, if available, in a defended case ( paras 45–48).
The first claimant appeared in person.
The defendant appeared in person.