Due Execution Of A Will – A Reminder In The Case Of Smith v Ganning (2022)
There are many different reasons for contesting a will, these include:
- Incorrectly drafted wills
- Wills not being signed and witnessed in accordance with the law
- Coercion (undue influence) of the deceased when they signed the will
- The deceased lacked mental capacity when they made the will
- Forgery & fraud
The starting point under section 9 of the Wills Act 1837 is that:
“No will shall be valid unless –
(a) It is in writing, and signed by the testator, or by some other person in his presence
and by his direction; and
(b) It appears that the testator intended by his signature to give effect to the will; and
(c) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) Each witness either –
(i) attests and signs the will; or
(ii) acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”
If on the face of it a Will appears to have been validly executed then strong evidence is required to rebut this presumption.
In the case of Smith v Ganning (2022) the court looked again at what was required to have a Will properly executed in front of witnesses
This case concerned the estate of Mrs Alison Wynn Ganning. The Claimant was her daughter, Laura Smith, who sought a declaration that the Will made on 5 April 2016 was invalid. The Defendant was her father and husband to the deceased, to whom her entire estate had been left under the Will.
There were extensive delays and the case was not issued until May 2021 (when Mrs Ganning had died in April 2016). Mr Ganning had already obtained a Grant of Probate some 3 years prior by this point.
Mrs Ganning’s son, Mr Robert Williams Evans, did not take part and Mr Ganning represented himself.
The estate was worth about £500,000 net.
Ms Smith argued that her mother only executed the Will in front one witness – Ms Kathryn Waver. The other witness, Ms Dawn Wilson (the neighbour), added her signature later and had not witnessed Mrs Ganning’s signature.
The judge believed the evidence of the two witnesses over that of Mr Ganning as they were independent with no interest in the outcome of the case. They were clear and consistent.
The judge accepted that the Will was not duly executed as it had been signed first by the Mrs Ganning in the presence of Ms Weaver and then Mrs Wilson later on in absence of the Mrs Ganning being present. The witnesses had not been present at the same time.
As a result of the Will being declared invalid it meant that Mrs Ganning had died intestate. Mr Ganning would be entitled to her personal chattels, the statutory legacy of £250,000 and half of her residuary estate absolutely. The children would then be entitled to the residual estate in equal shares. After deducting Mr Ganning’s statutory legacy, the personal chattels and his half share of the rest of her estate, no more than £60,000 would be left each for Ms Smith and Mr Evans.
The Will of Mrs Ganning was homemade. It cannot be stressed enough the importance of seeking appropriate legal advice in preparing a document as important as a Will. The solicitor who prepares the Will would have provided advice about proper execution of the Will, and in most cases they witness the execution of the Will which is likely to minimise any challenges later on to the validity of the Will.
Being a witness to a Will is an important role and should not be undertaken lightly and you may be called to give evidence many many years later on the circumstances of execution. It is important to choose your witnesses carefully.
Whilst it is not imperative to have legal representation in litigation, might Mr Ganning have taken the risk all the way to trial had he had appropriate legal advice on the merits of his case?