The British Diabetic Association v Elizabeth Anne Chenery

A will may be valid despite its unusual form, provided it contains revocable dispositions intended to take effect on death, the testator intended the document to operate as a will, and the statutory execution requirements are met. A testator may acknowledge a signature already written, without any prescribed form of words, if the circumstances show that the document is being presented as a will for attestation. Where a will consists of disconnected sheets and only the final sheet is attested, the court may presume that the other sheets were present and under the testator’s control at execution. That presumption may be rebutted by evidence. In the absence of clear non-compliance, the court should give effect to clear testamentary wishes and avoid intestacy.

The claimant sought probate in solemn form of two pieces of cardboard said to comprise the deceased’s last will. The documents contained testamentary dispositions in favour of the Diabetic Society and were numbered as pages 1 and 2. Only page 2 bore the deceased’s signature and the signatures of two attesting witnesses. The witnesses had not seen page 1 when they attested page 2.

The defendant, an intestacy beneficiary, did not defend the claim. Other interested relatives either supported the claim or did not actively oppose it. The central issues were whether the documents formed one will, whether the deceased had sufficiently acknowledged his signature, and whether the presence of the unattested first page could be presumed.

1. The claim succeeded. The two documents were admitted to probate in solemn form as the deceased’s last will.

2. The documents contained clear dispositions of property intended to take effect on death. Their wording and circumstances showed an intention to make testamentary dispositions. The court applied the principle that the law should favour a testate result where possible and should not undermine clear testamentary wishes without clear evidence of non-compliance.

3. Under section 9(1) of the Wills Act 1837, the deceased had signed page 2 before presenting it to the witnesses. By describing it as his will and explaining that he needed two witnesses, he sufficiently acknowledged his signature. No particular form of acknowledgement was required.

4. The law presumes, subject to rebuttal, that disconnected sheets forming part of a will were present in the same room and under the testator’s control when execution took place. The numbering, handwriting, use of the same pen, and coherent treatment of the estate supported the conclusion that the two pages formed one document. Nothing in the evidence rebutted the presumption.

5. The alternative argument based on incorporation by reference did not require determination. The claimant was sufficiently identified as the charitable body intended to benefit from the references to the Diabetic Society.

First-instance probate claim determined by the High Court. No prior decision is stated in the judgment.