Challenging a will and the requirement for a witness to sign a will

In a recent will dispute case, the Court of Appeal upheld a will even though the witnesses to the will had failed to sign it.

Section 9a of the Wills Act 1837 (which was amended by the Administration of Justice Act 1982) provides that in order for a will to be valid, it must be:

  • In writing
  • Signed by the person making the will (the testator) or by another person in their presence and by their direction
  • In the presence of two or more independent witnesses present at the same time, and who must attest and sign the will.

In the case of Payne v Payne (2018), John Payne, who died on 22 August 2012, had executed two wills. The first will which was signed in 1998 left his estate to his wife Kim Payne. His second will which was signed in 2012, left the majority of his estate to one of his four sons, John Henry Payne (“John Henry”) subject to two pecuniary legacies of £15,000 each to his wife and to Thomas Payne (his grandson).

Court proceedings were issued by John Henry and Thomas Payne to prove the 2012 will in solemn form. Mrs Payne defended the proceedings and contested the 2012 Will on the ground of lack of knowledge and approval. The 2012 Will was not professionally drafted and the witnesses to that will were the girlfriend of Thomas Payne and her mother.

At first instance, the court decided that the 1998 and the 2012 wills were both invalid. The court found the witness evidence for the 2012 Will to be “utterly unreliable”. As to the 1998 Will, at that time of the trial, the original of that will had not been lodged at court and only a cropped photograph of the will had been provided in evidence.

On appeal, the court upheld the 1998 Will. By that stage, Mrs Payne had obtained evidence from the witnesses to the 1998 Will and oral evidence was given by one of the witnesses in court. She was also able to obtain the original will from the Probate Registry which the court considered in conjunction with the other evidence.

The court held that the fact that the witnesses had only recorded their names and addresses on the will (and had not signed) was sufficient and did not invalidate the will. Up until 1982, Section 9 of the Wills Act 1837 required witnesses to simply subscribe, but in 1982, the requirement was changed so the witness had to sign.

The judges in the appeal case commented that the intention behind the 1982 changes was not to introduce stricter requirements on witnesses but simply to do away with the archaic terminology used in the Wills Act. The court confirmed that the requirement to “sign” should be interpreted to mean the same as to “subscribe”.

If you have questions or concerns regarding a probate dispute or you would like to discuss challenging a will or a contentious probate matter please contact our specialist contentious probate solicitors on 01902 424927 for an initial free consultation.

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