Presumption of due execution rebutted

[dls]

Ahluwalia -v- Singh and Others - ChD - 06-Sep-2011 - Mark Cawson QC ([2012] WTLR 1, Bailii, [2011] EWHC 2907 (Ch)) - Wills and Probate
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. Recognising that th elaw would require the clearest of evidence to rebut the presumption that a will apparently valid had not been properly attested. Even so, that hurdle had been cleared in this case.

Cases Cited:
Wright -v- Rogers 1869 ((1869) LR 1 PD 678)
Wright -v- Sanderson 1884 ((1884) 9 PD 149)
Couwenbergh -v- Valkova CA 28-1-2005 (Bailii, [2005] EWCA 145 Civ)
Channon and Another -v- Perkins (A Firm) CA 1-12-2005 ([2006] WTLR 425, Bailii, [2005] EWCA Civ 1808)
Sherrington and Another -v- Sherrington CA 29-12-2006 (Bailii, [2006] EWCA Civ 1784)
Kentfield -v- Wright ChD 1-7-2010 (Bailii, [2010] EWHC 1607 (Ch))
Couwenbergh -v- Valkova ChD 16-10-2008 (Bailii, [2008] EWHC 2451 (Ch))

Cited by:
Singh and Others -v- Ahluwalia CA 11-12-2012 (Bailii, [2012] EWCA Civ 1635) - Appeal from
lawindexpro

[theycantdothat]

A case which highlights the wisdom of having your will witnessed by at least one properly qualified person to ensure that the correct procedures are followed. It also emphasises the need, when a professionally prepared will is sent to a client for signature, to ensure that the client is fully aware of the importance of following the correct procedure and setting out the procedure clearly. It also raises the question of whether the strict requirements of the Wills Act are perhaps too strict. In this case the clear intentions of the testator were frustrated.

[dls]

You are right, but this was a very rare case where the presumption was rebutted.

[theycantdothat]

You are right, but this was a very rare case where the presumption was rebutted.

Indeed - the judge made the point that no case where the presumption had been rebutted had been presented to him. However, the case may encourage enquiries into whether apparently properly executed wills were properly executed. Witnessing by a lawyer, paralegal or legal secretary is going to be virtually unassailable.