Lim v Thompson

Under section 9 of the Wills Act 1837, the person propounding a will bears the legal burden of proving due execution. An attestation clause may support a strong presumption of regularity, but the force of that presumption depends on all the circumstances and may disappear where the document or surrounding events are irregular and suspicious. A photocopy bearing a photocopied signature is not a document signed by the testator. Where due execution is not proved, questions of testamentary capacity and knowledge and approval need not be decided.

The claimant sought revocation of a grant of letters of administration in the estate of Peter John Ellis Rendes and relied on three purported wills dated 22 October, 25 October and 14 December 2006. The defendant disputed due execution and also raised testamentary capacity and knowledge and approval. The court ordered the due-execution issue to be tried first. The central questions were whether any document satisfied section 9 of the Wills Act 1837 and whether any presumption of due execution survived the documentary and evidential irregularities.

1. The claim was dismissed. None of the three purported wills had been duly executed. The court therefore did not need to determine testamentary capacity or knowledge and approval.
2. The legal burden of proving due execution rested on the person asserting the validity of the relevant will. A will containing an attestation clause may attract a strong presumption of due execution, as recognised in Sherrington v Sherrington [2005] WTLR 587 and Re Papillon (deceased) [2006] EWHC 3419 (Ch); however, the presumption is weaker where the document is irregular or unusual. The force of the presumption varies with all the circumstances, as explained in Re Bercovitz Estate, Canning v Enever [1961] 1 WLR 892.
3. The handwritten document dated 22 October 2006 had only one witness and was consequently not duly executed.
4. The October and December documents were surrounded by substantial suspicion. The original October document was not produced, the December document was a photocopy, witness evidence was unsatisfactory, and the circumstances suggested that the documents had been produced after the event. Those circumstances displaced any presumption of regularity. In any event, the claimant failed to discharge the burden of proof.
5. Section 9 required the will to be signed by the testator. A photocopy of an earlier will bearing a photocopied signature was not signed by the testator, even if the copying or acknowledgement had occurred in the presence of witnesses. The requirement for an original signature served the statutory purpose of reducing the risk of fraud.