Sherrington & Ors v Sherrington

A will is validly executed only if the statutory formalities are strictly proved. The attesting witnesses need not know that the document is a will, but they must sign intending to attest or verify the testator’s signature. A signature placed so that the witnesses could see it may suffice, but the evidence must still establish the necessary witnessing intention.

Where the circumstances of preparation excite suspicion, the person propounding the will must prove that the testator knew and approved its contents. The court does not decide whether testamentary dispositions are reasonable except so far as their terms and the surrounding circumstances illuminate knowledge and approval.

The three claimants, children of the deceased’s first marriage, sought revocation of probate granted to his widow in respect of a will leaving his estate principally to her. They alleged that the will had not been duly executed and that the deceased had not known or approved its contents.

The will had been prepared by the widow’s daughter, who had no experience of drafting wills, and was executed in hurried circumstances. The proposed attesting witnesses signed documents without understanding their nature and without intending to verify the deceased’s signature. The central issues were whether the requirements of section 9 of the Wills Act 1837 had been met and, if so, whether the deceased knew and approved the will.

1. Due execution. Section 9 of the Wills Act 1837, as substituted by the Administration of Justice Act 1982, places on those propounding a will the burden of proving strict compliance with the statutory requirements. The presumption arising from the will’s appearance was displaced by the direct evidence.
2. The attesting witnesses did not need to know that the document was a will. They did, however, need to sign with the intention of attesting or verifying that the deceased had signed or acknowledged his signature in their presence. The witnesses had merely been told to sign and write their addresses. They had not seen the deceased sign, had not been directed to act as witnesses and had no intention of verifying his signature. The will was therefore not duly executed.
3. Knowledge and approval. Although this issue was unnecessary to determine, the court held that the circumstances raised a substantial suspicion. The widow was instrumental in the preparation of a will under which she was sole beneficiary. The will was drafted by a novice, contained obvious typographical errors and an inappropriate minority-beneficiary clause, and was prepared and executed in an unnecessary rush.
4. The deceased’s relationship with the widow was unhappy, while he remained devoted to the claimants. The evidence did not establish that he was informed of the will’s contents or read it. The widow accordingly failed, on the balance of probabilities, to prove knowledge and approval.
5. The grant of probate was revoked on both separate and independent grounds.