References: [2006] WTLR 425, [2005] EWCA Civ 1808
Links: Bailii
Coram: Arden LJ, Neuberger LJ, Mummery LJ
Ratio: A will was challenged by the family. The witnesses had said that they did not remember witnessing the deceased sign the will, and would have done. The principle beneficiary appealed refusal of admission to probate of the will.
Held: Neuberger LJ said that where the will had a full and valid attestation clause and represented the deceased’s wishes, there has to be cogent and clear evidence, ie testimony which constitutes ‘the strongest evidence’, before one can justify the conclusion that the judge reached, this was not a case where the judge simply had to carry out the normal exercise of deciding whether certain witnesses were to be believed or not. It was a case where he had to decide whether, in light of the evidence taken as a whole, he could reasonably conclude that there was ‘the strongest evidence’, that the Will has not been legally executed. The judge had been wrong to reject the evidence of the beneficiary as of no assistance. The execution witnesses accepted that it was their handwriting on the will. Professor Channon intended to make a Will in the very terms in which he executed the Will.
What constitutes the ‘strongest evidence’ in any particular case will depend on totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the hurdle to be crossed to meet the requirement of showing the ‘strongest evidence’, and the stronger that evidence will need to be. ‘
Jurisdiction: England and Wales
This case cites:
- Cited – Sherrington v Sherrington CA (Bailii, [2005] EWCA Civ 326, Times 24-Mar-05)
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . . - Cited – Wright v Sanderson ((1884) 9 PD 149)
The testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to ‘sign this paper’ which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor . . - Cited – Wright v Rogers ((1869) LR 1 PD 678)
The survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator.
Held: . .
(This list may be incomplete)
This case is cited by:
- Cited – Wharton v Bancroft and Others ChD (Bailii, [2011] EWHC 3250 (Ch))
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . . - Cited – Ahluwalia v Singh and Others ChD ([2012] WTLR 1, Bailii, [2011] EWHC 2907 (Ch))
The claimant challenged the validity of the will, saying that it had not been validly attested, the two witnesses not being present at the same time despite the attestation clause saying they had been.
Held: The challenge succeeded. . .
(This list may be incomplete)
Leading Case
Last Update: 02 November 2017
Ref: 239227
The post Channon and Another v Perkins (A Firm): CA 1 Dec 2005 appeared first on swarb.co.uk.