Ashman v Thomas

A regular attestation clause gives rise to a presumption of due execution, although the strength of that presumption varies with the circumstances. Suspicious circumstances do not prevent the presumption arising. The question of due execution is distinct from knowledge and approval. The presumption may be rebutted only by the strongest evidence. Where evidence establishes that the testator could not have signed the will in the presence of the attesting witnesses, the presumption is rebutted. A failure to call readily available evidence may support an adverse inference where there is already evidence requiring an answer.

The claimant sought revocation of letters of administration granted to the defendant and probate in solemn form of one of three purported wills made by the deceased. The court tried preliminary issues concerning whether each will had been validly executed under section 9 of the Wills Act 1837. The principal dispute concerned the interaction between the presumption of due execution arising from a regular attestation clause and suspicious circumstances surrounding the preparation and execution of the wills.

1. The court accepted the defendant’s evidence that the deceased had lived with him since 2004, was effectively housebound from 2007 and housebound from 2011. The claimant’s evidence that she had been taken to the attesting witnesses’ home was rejected as fabricated.
2. The failure to call the claimant’s daughter, who was said to have transported the deceased, and the failure to explain the provenance of an attesting witness’s statement entitled the court to draw adverse inferences. The principle was supported by Thames Valley Housing Association v Elegant Homes (Guernsey) Limited and Wisniewski v Central Manchester Health Authority.
3. A regularly completed attestation clause gives rise to a presumption of due execution. Suspicious circumstances do not prevent the presumption arising, but they affect its strength. The principles concerning knowledge and approval in Barry v Butlin operate separately from the due-execution authorities, including Re Bercovitz, Sherrington v Sherrington and Channon v Perkins.
4. The presumption can be rebutted only by the strongest evidence. For the 2008 will, the evidence did not meet that standard. For the 2011 and 2012 wills, the evidence established that the deceased could not have attended the attesting witnesses’ home and signed those wills before them.
5. The 2008 will was therefore validly executed under section 9 of the Wills Act 1837. The 2011 and 2012 wills were not executed before the attesting witnesses and did not satisfy the statutory formalities.