No signed copies of wills retained

[kramgoon]

Re: No signed copies of wills retained

All previous wills (ie/ the actual documents the testator signed) have been destroyed as they were superseded. But we have copies of those draft documents on PC (obviously before the testator signed them).
We also have the solicitor willing to say doc1 was received back from the testator signed and apparently executed and as far as we all know was a valid will between date 1 and date 2. Then he can say doc2 was received back signed and witnessed and was his valid will from date 3 to date 4 etc etc up to the date his last will came into effect (which we now think was invalid because the witnesses were not together).

[Amethyst]

Re: No signed copies of wills retained

If a Will has been destroyed whether accidentally or with the deceased's permission, how can a destroyed Will be declared valid? If a Will has been revoked but not destroyed it could be revived providing the formalities: signed, witnessed are again dealt with. However, if the Will has been destroyed it no longer exists so cannot be revived, ie cannot be made valid.

There's a copy xx

so something like this ( Bruce's Judicial Factor v. Lord Advocate - 1969 )

The 1945 will is a validly executed testamentary document, in existence at the date of the deceased's death in the repositories of his solicitors. It has not been cancelled or disfigured: no later valid testamentary document revoking it has been proved. It is not said that he at any time gave instructions that the 1945 will was to be destroyed, nor that there is any legal presumption that he intended that it should be destroyed.

or this

I have found the case of Cullen's Executor v. Elphinstone, 1948 S. C. 662, helpful. In that case a testatrix had executed in 1937 a will prepared by her solicitors. Subsequently it was held by her solicitor in the safe in his office. In 1945 the testatrix, desiring to alter her will, again consulted her solicitor, and a fresh will was drawn up. It contained an express revocation of the 1937 will. As the testatrix had gone blind, the 1945 will was executed notarially and-as it subsequently turned out-invalidly. The solicitor then, believing the 1937 will to be of no further use, destroyed it without any direct instructions from the testatrix and without her knowledge. It was said that this was in accordance with the general practice of the profession at this time when one will had been revoked by another, later will. The testatrix died, and it was discovered that the 1945 will was invalid owing to faulty execution. An action was raised for proving the tenor of the 1937 will and for declarator that it was the last will and testament of the testatrix. The contest was between the beneficiaries under the 1937 will and intestacy. In deciding in favour of the claimants under the 1937 will (set up by proving its tenor) Lord Birnam said (at p. 664) that he had considerable doubt as to the competency of certain of the parole evidence led-particularly as relating to the instructions of the testatrix for the preparation of the invalid will of 1945. The essential facts, however, were that the testatrix gave no express instructions for the destruction of the 1937 will, and that, while she might have instructed a new will which would have had the effect of revoking the former one, these instructions were not effectively carried out.

Lord Birnam also (at p. 665) rejected the argument that the solicitor had implied, if not express, instructions to destroy the 1937 will because he had received instructions to prepare another will revoking the earlier one, and because (it was said) destruction of the earlier will was in accordance with professional practice. 'Authority to destroy a probative deed should not readily be implied.' Further, no valid revocation had in fact ever taken place, and no alleged practice of the profession could be effective unless known to the testatrix.

And as the terms of the previous will were the same as the terms of the new will (to what extent they were the same I don't know but it sounds like the new will only made a minor amendment? ) - I think Intention will come into play. He had no intention of dying intestate and was careful about constantly updating his will.

I reckon a good barrister would win that ( still checking case law for any change in opinion more recently ) . Whether it is worth the battle or not only the OP knows xx

[kramgoon]

Re: No signed copies of wills retained

That's very interesting, thank you for that.

That really is the underlying point and putting the law to one side for a moment, it is abundantly clear what the testator wanted and as importantly just as clear what he didn't want and he certainly made umpteen efforts to ensure he did not die intestate. Four of his final five wills were near-identical leaving the £200k to his daughter and nothing to his son. In the final will, he even made a direct plea to his son to accept this and to also accept he made these choices of his own free will and without any undue influence or coercion from any of the beneficiaries.

So, in the Cullen case you mentioned, as the 1937 will had been destroyed, what will/document was presented to court and ultimately accepted? Was the 1937 will simply torn in half but still readable. In our case, all previous wills have been destroyed completely and gone - only unsigned documents on the PC exist.

[Amethyst]

Re: No signed copies of wills retained

It was destroyed completely however

the terms of the 1937 will are not only admitted but have been abundantly proved by trustworthy evidence.

A witness statement from the solicitor and the existence of the unsigned copies of the previous wills , all saying the same thing barring small details, is likely to be considered trustworthy evidence.

The issue may well be, whether the previous wills were also invalid by virtue of the improper execution. Are both witnesses of the final will still living, and did they witness previous wills properly ? I think that is the question - find out if the previous will was properly executed before arguing that it should be revived in the event the final will IS invalid. Otherwise you could get to a position where the previous will can be revived but that is also found to be invalid.

[Openlaw15]

Re: No signed copies of wills retained

That's very interesting, thank you for that.

That really is the underlying point and putting the law to one side for a moment, it is abundantly clear what the testator wanted and as importantly just as clear what he didn't want and he certainly made umpteen efforts to ensure he did not die intestate. Four of his final five wills were near-identical leaving the £200k to his daughter and nothing to his son. In the final will, he even made a direct plea to his son to accept this and to also accept he made these choices of his own free will and without any undue influence or coercion from any of the beneficiaries.

So, in the Cullen case you mentioned, as the 1937 will had been destroyed, what will/document was presented to court and ultimately accepted? Was the 1937 will simply torn in half but still readable. In our case, all previous wills have been destroyed completely and gone - only unsigned documents on the PC exist.

We still have the issue of at least 2 witnesses needing to see the deceased's (testator's) signature, right even if there were a copy of the Will. The Op seems to say there were not two witnesses to the Will at the same time. There are some exceptions at common law for Wills. The witnesses do not need to sign necessarily, they (witness) merely need to acknowledge the Will's signed intent by the deceased. There are case that deals with where at least two witness don't sign in the presence of the testator. It is sufficient if the testator requests that they sign the Will if the testator puts the Will say on the table: Daintree v Butcher (1888). Were there at least two people in the room at any one time who witnessed at least the signature of deceased, they do not need to have witnessed the Will itself, just the deceased's signature: Re Gunstan (1882). Even the testator (deceased) saying he has come to execute a Will and shows the witnesses is sufficient acknowledgement: Weatherhill v Pearce (1995).

[Amethyst]

Re: No signed copies of wills retained

We still have the issue of at least 2 witnesses needing to see the deceased's (testator's) signature, right even if there were a copy of the Will. The Op seems to say there were not two witnesses to the Will at the same time. There are some exceptions at common law for Wills. The witnesses do not need to sign necessarily, they (witness) merely need to acknowledge the Will's signed intent by the deceased. There are case that deals with where at least two witness don't sign in the presence of the testator. It is sufficient if the testator requests that they sign the Will if the testator puts the Will say on the table: Daintree v Butcher (1888). Were there at least two people in the room at any one time who witnessed at least the signature of deceased, they do not need to have witnessed the Will itself, just the deceased's signature: Re Gunstan (1882). Even the testator (deceased) saying he has come to execute a Will and shows the witnesses is sufficient acknowledgement: Weatherhill v Pearce (1995).

Indeed, the witnesses don't need to sign in the presence of the testator but they do need to be present with the testator at the same time as he tells them he has signed his signature and it is his will. They can then bugger off an sign it elsewhere if they want - doesn't happen really in practice, but putting it in a modern context, say you got two neighbours round to witness, you tell them it's your will and you have signed it and show them the signature, then one has to nip home to put the kids tea on, doesn't come back for a bit by which time other witness has signed and gone to the pub, and the testator has gone to the loo, they could still then sign and the will be valid....as they were all 'present in sound mind and body' (or whatever that wording is) when the testator declared it was his signature on his will.

As it happens it sounds like he might have gone round one neighbours house, got them to sign, then gone to a second neighbour and got them to sign, in which case it's invalid.

(Ignore the neighbour thing, am just saying neighbour and making up random scenario's for convenience to make the point )

Were there at least two people in the room at any one time who witnessed at least the signature of deceased, they do not need to have witnessed the Will itself, just the deceased's signature: Re Gunstan (1882).

That is interesting and potentially useful. Little old, is it cited later? (I'll have a look)

[Amethyst]

Re: No signed copies of wills retained

mmmm try Groffman (1969) - seems to throw out that it just needs two people and the testator and one of the people didn't need to be a witness.

in my view there was no acknowledgment or signature by the testator in the presence of two or more witnesses present at the same time; and I am bound to pronounce against this will.

and Ahluwalia v Singh [2012] WTLR 1 ( apologies for crap reference link here -> http://www.lawskills.co.uk/articles/...-1-all-er-113/ - gives the picture quite clearly though I think )

[kramgoon]

Re: No signed copies of wills retained

Both the witnesses of the last will are still alive and have both confirmed this is the only will they witnessed.

The testator's solicitor also confirmed he did not witness the signing of any of the wills. This is unfortunate as it would have been better had he confirmed he (and his secretary for example) witnessed the signing of one of them.

As all other wills have been destroyed we have no idea who the previous witnesses were and therefore cannot say with any certainty whether any of those wills were validly executed. However, can I not fall back on the "everything is assumed to have been done correctly unless proven otherwise" statement - it's unlikely that it can be proved that any of these wills were not valid.

[Openlaw15]

Re: No signed copies of wills retained

Indeed, the witnesses don't need to sign in the presence of the testator but they do need to be present with the testator at the same time as he tells them he has signed his signature and it is his will. They can then bugger off an sign it elsewhere if they want - doesn't happen really in practice, but putting it in a modern context, say you got two neighbours round to witness, you tell them it's your will and you have signed it and show them the signature, then one has to nip home to put the kids tea on, doesn't come back for a bit by which time other witness has signed and gone to the pub, and the testator has gone to the loo, they could still then sign and the will be valid....as they were all 'present in sound mind and body' (or whatever that wording is) when the testator declared it was his signature on his will.

As it happens it sounds like he might have gone round one neighbours house, got them to sign, then gone to a second neighbour and got them to sign, in which case it's invalid.

(Ignore the neighbour thing, am just saying neighbour and making up random scenario's for convenience to make the point )




That is interesting and potentially useful. Little old, is it cited later? (I'll have a look)

Re Gunstan's Goods (1882) 7 PD 102

[Openlaw15]

Re: No signed copies of wills retained

mmmm try Groffman (1969) - seems to throw out that it just needs two people and the testator and one of the people didn't need to be a witness.


and Ahluwalia v Singh [2012] WTLR 1 ( apologies for crap reference link here -> http://www.lawskills.co.uk/articles/...-1-all-er-113/ - gives the picture quite clearly though I think )

Here's the case, it's original/ neutral authority http://www.bailii.org/ew/cases/EWHC/Ch/2011/2907.html

- - - Updated - - -

Indeed, the witnesses don't need to sign in the presence of the testator but they do need to be present with the testator at the same time as he tells them he has signed his signature and it is his will. They can then bugger off an sign it elsewhere if they want - doesn't happen really in practice, but putting it in a modern context, say you got two neighbours round to witness, you tell them it's your will and you have signed it and show them the signature, then one has to nip home to put the kids tea on, doesn't come back for a bit by which time other witness has signed and gone to the pub, and the testator has gone to the loo, they could still then sign and the will be valid....as they were all 'present in sound mind and body' (or whatever that wording is) when the testator declared it was his signature on his will.

As it happens it sounds like he might have gone round one neighbours house, got them to sign, then gone to a second neighbour and got them to sign, in which case it's invalid.

(Ignore the neighbour thing, am just saying neighbour and making up random scenario's for convenience to make the point )




That is interesting and potentially useful. Little old, is it cited later? (I'll have a look)

The source for Re Gunstan (1882) comes from Cilex (legal exec's) exam answers ..so it's a good authority in practice.

[Amethyst]

Re: No signed copies of wills retained

I suppose it depends what the question is that it is the answer to It is still good law in that the testator doesn't have to sign the will in front of the witnesses but can just acknowledge his signature (and that it is a will) in front of the witnesses. However you were, I thought, saying that Gunstan meant that two people had to be in the room and it wasn't necessarily the witnesses, at the time signature or acknowledgment thereof was made, which it doesn't say.

[Amethyst]

Re: No signed copies of wills retained

Here's the case, it's original/ neutral authority http://www.bailii.org/ew/cases/EWHC/Ch/2011/2907.html

Ta muchly, goodness knows why I couldn't find it. The summary gives an easy to grasp overview to begin with anyway xx

[Openlaw15]

Re: No signed copies of wills retained

Ta muchly, goodness knows why I couldn't find it. The summary gives an easy to grasp overview to begin with anyway xx

If you have the neutral citation for the case: EWCA.. it's easy to find on sources such as Bailii

[Openlaw15]

Re: No signed copies of wills retained

I suppose it depends what the question is that it is the answer to It is still good law in that the testator doesn't have to sign the will in front of the witnesses but can just acknowledge his signature (and that it is a will) in front of the witnesses. However you were, I thought, saying that Gunstan meant that two people had to be in the room and it wasn't necessarily the witnesses, at the time signature or acknowledgment thereof was made, which it doesn't say.

Gunstan's ratio (binding principle) is that there must be 2 witness available at the same time, ie in a room, to acknowledge the testator's signature. The witnesses do not need to know it is a Will (ie they find out it was in retrospect) as long's they both acknowledge the signature at the same time. It could be literally any two witnesses. I believe the law generally is that at least 2 witnesses must be present at the same time to acknowledge the Will, as per s.9, Wills Act. Judges have to interpret the law as Parliament intended, ie the letter of the law rule. Common law judges cannot go outside judiciary power, according to constitutional theory anyway.

[Amethyst]

Re: No signed copies of wills retained

I know. Still the witnesses who sign to acknowledge the testators signature must both be in the room at the same time as the testator acknowledges his signature. The following case law backs that up completely.

Say Jeff and Fred have signed the will as Witnesses. Bill and Flo haven't signed the will as witnesses. At some point both Jeff and Fred must have been in the same room as the Testator when he said ' This is my signature '. Not Jeff , Bill and the Testator then at a separate time Fred , Flo and the Testator - it has to be Jeff, Fred and the Testator, in the room at the same time.

I think maybe you are saying the same just being narky for the sake of it.

Were there at least two people in the room at any one time who witnessed at least the signature of deceased, they do not need to have witnessed the Will itself, just the deceased's signature: Re Gunstan (1882).

Witnesses who signed and Witnesses who saw - Witnesses who saw are irrelevant - it has to be both Witnesses who signed.