Court of Appeal Rules on Validity of Execution of Will

The judgement of the Court of Appeal in the case of Payne & another v Payne was published on Thursday 17th May and is another lesson in the dangers of relying on homemade Wills.

Private Client lawyer, Ann-Marie Aston of The Wilkes Partnership explains the decision in further detail.

John Payne senior died in August 2012 aged 74 years. He had been married twice. The first marriage resulted in four children, the second none.

Fourteen months after he married for the second time, Mr Payne made a will (the 1998 Will) on a pre-printed form and without legal advice, handwriting his wishes on the form and leaving his assets to his second wife, Mrs Payne. The will was independently witnessed but the witnesses did not sign their names but merely printed their names and included their addresses.

Mrs Payne did not get along with at least two of the children of Mr Payne’s first marriage so when Mr Payne passed away and a second Will purportedly made in 2012 (the 2012 Will), just shortly before Mr Payne’s death came to light, Mrs Payne was understandably suspicious of it.

Mrs Payne disputed the validity of the later Will and the case went to various hearings/directions hearings over the following years. However, presumably due to the cost of legal representation, both parties were only represented at certain times throughout the dispute and represented themselves at other times. This resulted in protracting the matter even further due to misunderstandings by Mrs Payne as to what was required during the legal process and what evidence, was required and when and how it should have been presented to the court.

The judge at the first instance decision in 2015 held that neither will was valid and as a consequence Mr Payne had died intestate. Mrs Payne appealed this decision which went to a final hearing at the Court of Appeal in March of this year.

The court held that the first instance judge erred in her judgement that the 1998 was invalid and accepted evidence from one of the witnesses to it that his printed name was evidence of his attestation that he had witnessed Mr Payne signing the 1998 Will. The court therefore declared that the 1998 Will was indeed valid.  This was on the basis that the Court held that the wording in section 9 of the Wills Act 1837 requiring an attesting witness to sign a will ought to be interpreted as requiring a witness to merely write his name with the intention that the act of writing it should operate as an attestation.”

“This judgment looks at the original wording of the Wills Act and shows us that while the Court will apply the legislation practically it is still an area surround by technical requirements which for the uninitiated could result in the will being held invalid

Although Mrs Payne represented herself for much of the proceedings, no doubt the whole process was costly and extremely stressful to get to the fair and just result she deserved. The moral of this story is to ensure that when executing or putting in place any legal document good quality legal advice is taken. Had Mr Payne done so, the matter may have ended much sooner and at much less cost to the parties.

Andrew Hasnip, Ellie Holland and Ann-Marie Aston – partners at Wilkes are all experienced private client solicitors dedicated to ensuring that quality legal advice is provided and that the document ultimately produced can withstand any challenge for want of validity. Further, full inheritance tax planning as well as provision for family and dependants’ advice amongst other pertinent issues will also be explored.

And if you are left with the unfortunate task of trying to prove a home-made will, Andrew and Ellie will be able to advise on the validity of the Will and deal with its admission to probate on behalf of the executors.

Finally, if you are faced with a Will which you believe is not valid or equitable or you have been notified of a challenge to a Will you believe is valid, we have a team of experienced contentious probate lawyers in Kevin Lynch and Nigel Wood who can advise and deal with these sorts of issues on your behalf.

Delays in dealing with disputed Wills can lead to not being able to dispute at all because of the strict time limitations for bringing or defending disputes of this nature.

For further information and advice please contact Ann-Marie Aston on 0121 733 8000 or via email at [email protected]

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