Channon & Anor v Perkins (A Firm)

A will that is regular on its face and contains a full attestation clause carries a strong presumption of due execution. The court should pronounce against it only on cogent and clear evidence amounting to the strongest evidence.

The strength required depends on all the circumstances. The greater the inherent probability of proper attestation, the stronger the evidence needed to displace the presumption. A witness’s failure, after several years, to remember signing ordinarily carries little weight where the document itself and the surrounding circumstances support due execution.

The testator’s children sought an order pronouncing against their father’s will. Although the will bore the testator’s signature, a full attestation clause and the signatures and addresses of two witnesses, both witnesses denied having seen the testator sign or acknowledge his signature and denied signing in his presence.

The High Court accepted their evidence and held that the requirements of section 9 of the Wills Act 1837 had not been satisfied. A substantial beneficiary and another beneficiary appealed. The central issue was whether the evidence was sufficiently strong to displace the presumption that the facially regular will had been duly executed.

1. Appeal allowed unanimously. The evidence did not satisfy the high legal standard required to displace the presumption of due execution. The court pronounced for the will in solemn form and ordered a grant of letters of administration with the will annexed to Mrs Day.

2. Neuberger LJ held that a will which appears to comply with section 9 of the Wills Act 1837, contains a full attestation clause and reflects the testator’s established intentions should be rejected only on cogent and clear evidence constituting the strongest evidence. This approach, stated in Sherrington v Sherrington [2005] EWCA Civ 326, reflects both the unreliability of recollections concerning formalities many years later and the importance of giving effect to testamentary intentions.

3. The witnesses acknowledged that their signatures and addresses appeared on the will but could not explain how they came to be there. Their evidence amounted in substance to an inability to remember signing. It did not include a positive recollection of a specific defect, such as the absence of the testator or the other witness. The passage of seven to nine years, the facial regularity of the will, the absence of fraud or any motive to execute it improperly, and the evidence explaining the choice of witnesses all supported due execution.

4. Arden LJ agreed and explained that the strongest-evidence requirement operates on a sliding scale. The court must consider all circumstances relevant to attestation and evaluate the probabilities. The more probable due attestation appears, the greater the burden on the party seeking to displace the presumption. The court should generally examine why a person who signed an attestation clause later denies the events it records. Lack of recollection alone may be insufficient, although specific evidence placing both witnesses elsewhere could carry greater weight.

5. Mummery LJ agreed that the written and oral evidence, viewed together, was insufficient. The will itself was real evidence of due execution and outweighed the witnesses’ distant recollections. The trial judge had therefore failed to apply the presumption correctly.

6. There was no order for the costs of the trial. The respondents were ordered to pay Mrs Day’s costs of the appeal. No costs were awarded to the Guide Dogs for the Blind Association because its participation at trial and on appeal had been unnecessary.

1. Court of Appeal (Civil Division): Allowed the appeal, set aside the conclusion that the will was invalidly executed, pronounced for the will in solemn form and directed a grant of letters of administration with the will annexed.

2. High Court, Chancery Division: HHJ Weeks QC held that the will had not been validly executed under section 9 of the Wills Act 1837 and should not be admitted to probate. No neutral citation is stated.