Sherrington & Ors v Sherrington

For attestation under Wills Act 1837, section 9, a witness must sign with the intention of witnessing the testator’s signature or will. A facially regular will containing an attestation clause and the relevant signatures attracts a strong presumption of due execution. That presumption is rebutted only by the strongest evidence.

Where circumstances excite suspicion about a will, the propounder must establish the testator’s knowledge and approval. The inquiry is objective and considers all the evidence and inherent probabilities. Direct proof that the testator read the will is unnecessary where the circumstances support the inference that its short and clear contents were known and approved.

The deceased, an experienced solicitor, executed a three-page will prepared by his wife’s daughter. It appointed his widow, Yvonne Sherrington, as executrix and left her his whole estate, with his three children taking only if she did not survive him or disclaimed.

Lightman J revoked the grant of probate. He held that the two witnesses had not intended to attest the deceased’s signature and that the widow had not proved that the deceased knew and approved the will’s contents. The widow appealed. The children’s respondent’s notice contended that the will was invalid because the deceased had not signed it before the witnesses signed.

The central issues were whether the will was duly executed under section 9 and whether the suspicious circumstances surrounding its preparation displaced knowledge and approval.

1. Appeal allowed; cross-appeal dismissed. The court set aside the order revoking probate. The will was duly executed and the deceased knew and approved its contents.

2. Section 9(d)(i) of the Wills Act 1837 requires more than a witness’s signature. The witness must sign intending to attest the testator’s signature or will. However, where a will bears an attestation clause, the testator’s signature and the witnesses’ signatures, due execution is strongly presumed. A witness with capacity is ordinarily taken to have done what the signed attestation clause records. The presumption can be displaced only by the strongest evidence.

3. The trial judge was plainly wrong to treat the witnesses’ evidence as sufficient to rebut that presumption. His findings rejected a crucial part of Mrs Butt’s evidence, yet did not adequately account for that rejection when accepting her asserted lack of intention to attest. The evidence of the other witness was inconsistent and equivocal. The deceased’s experience as a solicitor, and evidence that he insisted on the signing formalities at the time, reinforced the probability of due execution.

4. The children’s alternative challenge failed. The judge’s rejection of Mrs Butt’s evidence that the deceased had signed only after the witnesses did was not disturbed.

5. The circumstances of the will’s preparation properly excited suspicion because the widow benefited and participated in its preparation. That shifted the burden to her to establish knowledge and approval. The inquiry was not a moral assessment of the will’s fairness. It was whether its contents truly represented the deceased’s testamentary intentions.

6. On the objective evidence, it was fanciful to conclude that this experienced solicitor did not know and approve a short, simple will which he had ample opportunity to read before execution and later while retaining it. There was no suggestion that he lacked capacity or was misled about its contents. The inference of knowledge and approval was compelling despite the trial judge’s adverse view of the widow’s and drafter’s reliability.

• Court of Appeal (Civil Division) — Allowed the widow’s appeal in [2005] EWCA Civ 326, dismissed the children’s cross-appeal, and quashed the revocation of the grant of probate.
• High Court of Justice, Chancery Division — Lightman J held the will invalid for want of due execution and want of knowledge and approval, and ordered revocation of the grant of probate.