Wilson v Lassman

Where an attestation clause is admittedly inaccurate, it cannot generate a presumption that the will was duly executed in accordance with that clause. The party propounding the will must prove due execution in the manner actually alleged. A will may nevertheless comply with section 9 of the Wills Act 1837 where the testator acknowledges an existing signature in the presence of two witnesses present together, and each witness then attests and signs in the testator’s presence.

The claimant, the deceased’s son, initially brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975. After discovering doubts about the execution of his father’s will, he amended the claim to challenge its validity and sought revocation of the grant of probate.

The will had been signed by the deceased before it was presented to the two witnesses. Its attestation clause stated instead that the deceased had signed in the witnesses’ presence. The court stayed the 1975 Act claim and first determined whether the will had been validly executed.

1. Statutory requirements. Section 9 of the Wills Act 1837 permits execution where the testator acknowledges his signature in the presence of two witnesses present at the same time, and each witness attests and signs, or acknowledges his signature, in the testator’s presence.
2. Presumption of due execution. The presumption arising from an attestation clause is rebuttable and ordinarily requires strong evidence to displace it. However, where it is common ground that the attestation clause does not accurately describe the execution, the clause cannot support the presumption. Due execution must then be proved by the party propounding the will on the factual basis relied upon.
3. Application to the evidence. The court accepted Mr McKinley’s evidence as reliable and credible. It also accepted Mr Byrne’s trial evidence insofar as it accorded with Mr McKinley’s account, despite the inconsistent questionnaire and witness statement. The evidence established that the deceased’s signed will was presented to both witnesses while all three were together, thereby acknowledging the signature, and that both witnesses then signed it.
4. Disposition. The will was properly executed and attested in compliance with statute. The court declared that the will was valid.