Royal National Institute for Deaf People & Ors v Turner

Where a will appears to comply with the statutory formalities and contains an attestation clause, strong evidence is required to displace the presumption of due execution. The strength of evidence required depends on the totality of the circumstances and the reliability of the evidence available. In a case involving a homemade will and witnesses who positively recalled that the testator was absent, the evidence was sufficient to establish non-compliance with section 9 of the Wills Act 1837.

Knowledge and approval must be determined from the whole of the evidence. The court should draw the appropriate inferences without treating execution as conclusive. A missing will should likewise be assessed by considering all the evidence and deciding whether loss, rather than destruction with intent to revoke, is more probable.

The claimants were residuary beneficiaries under a 1982 will made by Dorothy Whelen. The defendant was a beneficiary under a homemade will dated 1 November 1999, which purported to revoke the earlier will.

The claimants challenged the 1999 will on the grounds that it had not been executed in accordance with section 9 of the Wills Act 1837 and that Mrs Whelen had not known or approved its contents. The original 1982 will could not be found, raising a separate issue whether it had been destroyed with intent to revoke or merely lost. The court also had to determine whether an order should be made passing over the named executor.

1. Execution of the 1999 will. The court followed the guidance in Re Channon on the presumption of due execution and the requirement for the strongest evidence. That expression involved a sliding scale: the required strength depended on the totality of the relevant facts and the probabilities. The court rejected any materially different guidance in Re Papillon and Re Bercovitz.
2. The evidence was sufficiently strong to rebut the presumption. The will was homemade, there was no evidence that the testator or witnesses understood the formalities, and the forensic evidence indicated that both wills had been witnessed at the same time. The judge accepted the witnesses’ recollection that each had been asked to witness only Mrs Turner’s will, that they were not together when Mrs Whelen’s will was witnessed, and that Mrs Whelen was absent. The 1999 will therefore failed to comply with section 9 and was not admitted to probate.
3. Knowledge and approval. Although the issue did not arise in light of the conclusion on execution, the judge considered it. Applying the approach that all relevant evidence should be evaluated together, the judge would have found that Mrs Whelen knew and approved the contents of the will. Its provisions were straightforward and consistent with her expressed intention to benefit Mrs Turner.
4. Loss of the 1982 will. The court considered the evidence as a whole and concluded that the will was more probably lost than destroyed by Mrs Whelen with intent to revoke. The 1982 will was therefore admitted to probate.
5. An order was to be made under section 116 of the Senior Courts Act 1981 passing over the named executor, who was elderly, infirm and unwilling to act.