Briscoe v Green

Where a will appears on its face to comply with the statutory formalities, the law presumes due execution. That presumption is strong and will be rebutted only by the strongest evidence. The court should assess recollections of execution cautiously, particularly where the events occurred some time earlier and the will appears to express the testator’s wishes. Evidence that a witness cannot remember the signing, or has an uncertain recollection, will ordinarily be insufficient. The presumption may nevertheless be displaced by reliable positive evidence of non-compliance. Where the evidence establishes that the testator and both witnesses were together, and that the witnesses signed in the testator’s presence, the will is properly executed and may be admitted to probate in solemn form.

The deceased left a home-made will appointing Pauline Briscoe as executor and making several pecuniary gifts. Raymond Green, the deceased’s son, sought to be satisfied that the will had been properly executed and attested. Pauline Briscoe counterclaimed for the will to be pronounced in solemn form.

The central issue was whether the deceased had signed or acknowledged the will in the presence of both witnesses, and whether each witness had then signed or acknowledged it in the deceased’s presence. The court also considered whether the evidence rebutted the presumption of due execution arising from the will’s appearance.

1. The claim was determined in favour of the will. The court pronounced the will in solemn form.

2. Section 9 of the Wills Act 1837 requires the testator to sign or acknowledge the will in the presence of two or more witnesses present at the same time. Each witness must then attest and sign, or acknowledge his signature, in the testator’s presence.

3. A will which appears on its face to have been executed in accordance with section 9 carries a presumption of due execution. Consistently with Sherrington v Sherrington and Channon v Channon, the presumption can be rebutted only by the strongest evidence. The policy reflects both the unreliability of recollection about formal execution and the importance of giving effect to the testator’s apparent wishes.

4. The evidence did not rebut the presumption. The judge accepted Pauline Briscoe’s clear recollection that both witnesses were present and saw the deceased sign. The witnesses’ conflicting and uncertain recollections were treated as hazy rather than dishonest.

5. The judge found as fact that both witnesses were present when the deceased signed, that both saw him sign, and that both signed afterwards in his presence. The will was therefore properly executed and attested.

6. No order was made for Pauline Briscoe’s costs. Raymond Green’s costs were ordered to be paid from the estate.

First-instance proceedings in the High Court (Chancery Division). The judgment records earlier interlocutory orders and an appeal from Master Bragge’s order, but this decision concerned whether the will should be pronounced in solemn form.