Payne & Anor v Payne

For section 9 of the Wills Act 1837, an attesting witness need not add a conventional personal signature. The requirement that the witness signs the will has the same effect as the former requirement to subscribe it. Writing a name with the intention of attesting the testator’s signature is sufficient.

A probate court should not pronounce against an apparently valid testamentary document without the original and, where available, evidence from an attesting witness. The public interest in upholding valid testamentary dispositions may require an adjournment. The principles governing fresh evidence on appeal do not prevent its admission where the interests of justice and the overriding objective require it.

The deceased left a purported will of 2012 and an earlier will of 1998. The 2012 will named the deceased’s son and grandson as executors and largely benefited the son. The 1998 will benefited the deceased’s widow, Mrs Payne.

Her Honour Judge Faber, sitting in the County Court at Central London, pronounced against both wills. She held that the 1998 will had not been duly attested because the witnesses’ names and details appeared in capitals but there were no conventional signatures, and neither witness gave oral evidence.

Mrs Payne appealed. She sought to rely on evidence from an attesting witness and the Court of Appeal directed production of the original 1998 will. The central issues were whether the witnesses’ entries satisfied section 9 of the Wills Act 1837, and whether the fresh evidence should be admitted.

Appeal allowed unanimously. Henderson LJ, with whom Flaux LJ agreed, held that the 1998 will was validly executed and should be pronounced for in solemn form.

1. Section 9 of the Wills Act 1837 requires an attesting witness to sign, but that word has the same meaning in this context as the former requirement to subscribe. It does not require a conventional, distinctive personal signature. Writing a name with the intention of attesting is enough. The Court drew support from Sherrington v Sherrington, [2005] EWCA Civ 326.

2. The original will, read as a whole, was consistent with the witness’s accepted oral evidence. The two witnesses had been present when the deceased signed, and separately completed their names, addresses and occupations in the designated places. The natural inference was that they intended to attest the execution. The form’s directions also equated signing names and addresses against the attestation clause with subscription by the witnesses.

3. The trial judge should not have pronounced against the will without seeing the original document and allowing evidence from at least one attesting witness. The failure to comply with the relevant probate procedures in the Civil Procedure Rules 1998 was a serious irregularity. The court’s duty, where possible, is to give effect to a testator’s wishes as expressed in valid testamentary documents. The public interest in that result justified an adjournment if necessary.

4. Fresh evidence was admitted. Although the principles in Ladd v Marshall, [1954] 1 WLR 1489 (CA), normally require reasonable diligence before trial, they are not a straitjacket. Justice required admission of the witness evidence, notwithstanding that it could and should have been obtained earlier.

5. Once pronounced for in solemn form, the 1998 will’s validity was final and binding against the whole world.

• Court of Appeal (Civil Division) Allowed Mrs Payne’s appeal and pronounced for the force and validity of the 1998 will in solemn form: [2018] EWCA Civ 985.
• County Court at Central London Her Honour Judge Faber, in an oral reserved judgment delivered on 27 August 2015, pronounced against both the 2012 and 1998 wills, resulting in an intestacy. Her decision concerning the 1998 will was reversed.