Kentfield v Wright [2010] EWHC 1607 (Ch)

Case No HC09CO2237

[2010] EWHC 1607 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 01/07/2010

Before

MR JUSTICE VOS

Between

In the Estate of GLADYS LILIAN WRIGHT DECEASEDClaimant

Maureen KentfieldClaimant

Peter Charles WrightDefendant

Mr Mark Dubbery for Claimant (instructed by Laytons)

Mr W.D. Ainger for Defendant (instructed by Gumersalls)

Hearing Hearing dates: 23 rd and 24 th June 2010

Judgment

Introduction

[1]Gladys Lilian Wright (“Glad” or the “Deceased”) was born Gladys Lilian Herbert on 29th September 1923. So far as can be ascertained, she only ever purported to make one will dated 14th July 1999 (the “Will”), and she died on 5th September 2007, just short of her 84th birthday, having spent some 3 or 4 years prior to her death debilitated by Alzheimer’s Disease. Her estate is valued at some £250,000.

[2]The Claimant is Glad’s only daughter, Mrs Maureen Joyce Kentfield (nee Herbert and referred to in this judgment as “Mrs Kentfield” or the Claimant), who was born on 15th June 1946. The Defendant is Mr Peter Charles Wright (“Mr Wright”), Glad’s only son, who was born on 13th January 1948, and to whom the Will left the entirety of Glad’s estate.

[3]The Will was, on its face, regularly executed and attested by 2 witnesses, Mrs Diane Webb (nee Edwards, and now Widdowfield, and referred to in this judgment as “Mrs Widdowfield”) of 72a Aboyne Drive, SW20 OAL, and Mrs Joy Edith Durban, a next door neighbour living at 83 Bunbury Way, Epsom Downs, Surrey KT17 4JP (“Number 83”).

[4]It is common ground that, at the time she made the Will, Glad was of sound mind, that she knew and approved of the contents of the Will, that it was not procured by impropriety or undue influence, and indeed that it was made on her own initiative.

[5]The only issue in this case is whether the Will was duly executed. It is alleged by the Claimant that the execution of the Will contravened section 9(c) of the Wills Act 1837 (as amended), in that the Will was not signed in the presence of the second witness, Mrs Durban. It is the Claimant’s case that the first witness, Mrs Widdowfield, signed the Will when she was alone with Glad. It is not contested that Glad signed or acknowledged her signature in the presence of Mrs Widdowfield and of Mrs Durban; the question is whether they were there together as required by section 9(c).

[6]In these circumstances, the central factual issues before the Court could not be simpler, namely: Was Mrs Durban present with Glad and Mrs Widdowfield, when Glad signed or acknowledged her signature, and did both witnesses sign the Will on the same occasion?

Section 9 of the Wills Act 1837

[7]Before turning to the facts, it is perhaps as well to have in mind the provisions of section 9 of the Wills Act 1837, as amended by section 17 of the Administration of Justice Act 1982, which provides as follows:- “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 the 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 the other witness), but no form of attestation shall be necessary.” (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 the 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 the other witness), but no form of attestation shall be necessary.”

Background facts and circumstances

[8]Mr Wright had always lived with his parents. In April 1987, Glad’s husband and Mr Wright’s father died, and in or about 1990, Glad retired as a Doctor’s receptionist, and she and Mr Wright bought as joint tenants, and moved into, a 2 bedroom property at 81 Bunbury Way, Epsom Downs, Surrey KT17 4JP (“Number 81”). In about 1993, Mrs Durban moved in next door to Number 83. The properties were substantially identical, each having a small galley kitchen 9 feet by 8 feet 3 inches, and a living room 16 feet by 15 feet.

[9]Glad suffered from deteriorating eyesight throughout the 1990s, but she was able to prepare Mr Wright’s accounts for his receipts as a taxi driver until at least 2001, and I am satisfied from the accounts I have seen that she prepared, and from the medical evidence that was put before me, that Glad could read and write reasonably well, despite her poor eyesight in 1999. She was, however, eventually registered as partially sighted in September 1999, just 2 months after the Will was executed.

[10]In about the mid 1990s, Mrs Widdowfield started to cut Mrs Kentfield’s hair at her home. Mrs Widdowfield taught hairdressing and had a mobile hairdressing business. About 6 months later, Mrs Kentfield introduced Mrs Widdowfield to Glad, and she started to cut Glad’s hair at her home at Number 81. I do not accept Mrs Kentfield’s evidence that the normal routine was for Glad to have her hair done with Mrs Kentfield’s hair at Mrs Kentfield’s home. Mrs Widdowfield only cut Mrs Kentfield’s hair for a couple of years, but she carried on doing Glad’s hair for some time after that, and certainly throughout 1999. Glad would have a perm every 3 or 4 months and a cut every 8 weeks in between.

[11]In 1999, Glad and Mrs Kentfield had a regular, but not immutable, routine. Mr Wright worked as a taxi driver roughly from about Noon to 10 p.m. every Tuesday, Wednesday and Thursday. Mrs Kentfield would generally take her mother shopping, and cook supper for her in the early evening, before delivering her back to Number 81 in time to cook Mr Wright’s supper when he got home (if he was working that day). This took place most Mondays, Tuesdays and Wednesdays, but on Thursdays, Mrs Kentfield would take her mother shopping to John Lewis.

[12]I should mention that Mrs Kentfield’s husband was tragically injured in the course of an operation for a supposed brain tumour as long ago as 1987. He can no longer work, walk, talk properly or even feed or wash himself. His claim for substantial damages against the Health Authority succeeded in about 1993, and that enabled Mrs Kentfield to move to a substantial property with a swimming pool at Hill View, The Glade, Kingswood, in 1994. Mr Wright considers Mrs Kentfield to have married well and to be a millionaire. Whether she is or not does not matter, but she has undoubtedly had a sad life, having cared for her disabled husband now for more than 20 years.

[13]In the week before the 14th July 1999, Mrs Kentfield was out shopping with her mother, when Glad decided that she wanted to buy a homemade will pack. Mrs Kentfield was, therefore, fully aware from that moment that her mother intended to make a will. It is clear from the evidence that Mrs Kentfield also knew that her mother intended to leave everything to Mr Wright, no doubt thinking that Mrs Kentfield was adequately provided for. Perhaps the most remarkable thing about this case is that nobody has suggested that Glad did not wish to leave all her property to her son. She plainly did. The points taken by the Claimant are, therefore, entirely technical.

[14]Mr Wright told me, and I accept, that on Saturday 10th July 1999, his mother spread out the contents of the will pack in her armchair and studied what it said. Glad was trying to persuade Mr Wright to make a will as well, but he was less enthusiastic about doing so. Whilst I accept that Glad did not follow all the suggestions in the will pack that I have seen, I am sure that she did read the pack as best she could. It is hard to say what precisely she knew about the law of execution of wills, but she certainly filled in the will forms carefully and must, therefore, have known that 2 witnesses were required, as shown on the forms.

[15]In due course, Glad wrote out her own will form leaving everything to Mr Wright. She was then 75 years old. The Will is carefully and fluently written in her own handwriting, and is entirely legible. This alone makes clear that her eyesight was sufficiently good to allow her to read and write at that time. On the evidence, I find that Glad had the idea that she needed to write out the will at the time it was signed, and that that was what she did. She, therefore, prepared herself over the week-end to write out her will, but did not actually do so until the middle of the day on Wednesday 14th July 1999. I will return to precisely what happened on that occasion. Glad used a blue pen to write out the Will. She signed it immediately after the disposition to her son, and dated it. Though there was no evidence about this, it appears that Mrs Widdowfield’s signature and address may well have been written with the same pen. The Will contained a standard printed attestation clause: “Signed by the testator/ testatrix in our presence and by us in his/hers”.

[16]Mrs Kentfield gave some detailed evidence about what happened on the afternoon of the 14th July 1999, to which I shall return.

[17]On Friday 16th July 1999, Peter Charles Wright made a will leaving all his estate to his mother. His will was in a very similar form to his mother’s. It was written out in manuscript by Glad in what seems to be the same blue pen, but there are differences. Mr Wright’s name and address are in lower case, whilst in Glad’s Will, they are in upper case. Likewise, the address in the disposition in Mr Wright’s will is in lower, rather than upper, case. The date is “16 day of July 1999”, whilst in Glad’s Will it is “14th day of July 1999”. Also, Mrs Widdowfield’s signature on Mr Wright’s will is rather less well formed than the one on Glad’s Will.

[18]On 11th June 2006, Mrs Beryl Bella Herbert, Glad’s sister-in-law died, leaving Glad a share of her estate that I am told may be worth some £200,000.

[19]In due course, as I have said, Glad was diagnosed to be suffering with dementia, and she eventually died after a long illness on 5th September 2007.

[20]On 1st October 2007, the Claimant entered a caveat, and on 1st April 2008, the Claimant’s caveat expired by effluxion of time. On 6th May 2008, Mr Wright took a grant of probate out of the Brighton District Probate Registry.

[21]On 30th June 2009, the Claim Form was issued seeking revocation of the grant of probate, and that the court should pronounce against the validity of the purported Will dated 14th July 1999, and a grant to the Claimant of letters of administration.

Witnesses

[22]Mrs Widdowfield gave evidence first. She signed both the Will and Mr Wright’s 16th July 1999 will as the first witness. Mrs Widdowfield was an independent witness, who had no interest in the proceedings, and no continuing relationship with any of the parties. But equally, she had no reason particularly to remember the events of the 14th to 16th July 1999, some 11 years after the event, and plainly did not have either a very clear or a very reliable recollection. I am sure she was doing her best to help the Court, but the events she was speaking about were of no concern and little interest to her in what was obviously a very busy life. In these circumstances, I cannot say that I found her evidence reliable, and in some areas, I am sure that what she said was inaccurate, though never deliberately so. It was simply a function of being asked to recall events that were of no importance to her, years after the event. Mrs Widdowfield told me that she had never witnessed a will before or since, and indeed that, knowing what she now knows, she would not be doing so again. She is, as I have said, a hairdresser by profession, and had no knowledge of what precisely was required of her beyond that she was witnessing Glad’s execution of a will. Her evidence was, however, certain in two connected areas:- i) She said she was quite sure that when she [Mrs Widdowfield] signed the Will, she and the Deceased were alone together in a kitchen, where there was a microwave, with no other person present. ii) She said that Mrs Durban was not present when she witnessed the Deceased’s signature. Mrs Widdowfield’s evidence was uncertain about whether she had seen Glad sign the Will or not. Her various statements said different things on this point. And she also seemed less certain about when and in what property she had signed Mr Wright’s will.

[23]Mrs Kentfield gave evidence next. Her statements gave the impression that she had a clear recollection of the events of the 14th to 16th July 1999. I will set out below some of what she said, but I should say at once that I have considerable doubt as to how much of what she said was recollection and how much was reconstruction. In the witness box, she appeared very confused about dates and timescales, and gave evidence which she implied was relevant to 1999, but which in fact concerned events that occurred long after 1999, when Glad had started to suffer from dementia. Mrs Kentfield eventually accepted that her mother’s dementia was not apparent before her daughter’s 21st birthday theatre outing on 20th September 2001, more than 2 years after the Will was signed. Mrs Kentfield gave evidence about conversations with Glad at the time the Will was signed, to which I shall also return.

[24]Paragraphs 14 to 16, 20 and 26 of Mrs Kentfield’s first statement dated 16th April 2009 are particularly important and I shall set them out in full:- “14. In the week prior to 14 July 1999 my mother had an appointment with [Mrs Widdowfield, my mother’s and my hairdresser, for [Mrs Widdowfield] to perm my mother’s hair. [Mrs Widdowfield] had asked if she could go to my Mum’s house instead of mine as it was nearer to her next appointment. I had said that was fine as I did not need my hair to be done on this occasion. My mother would usually always have her hair done at my house, as her having her hair done at home would upset my brother. It was very unusual for her to have her hair done at home.15. The appointment was made for 2pm on 14 July 1999. Our appointments were always at this time of day. On this occasion it was also important that my brother was not at the house and had gone to work, as mum would never have had her hair done while he was in the house.

16. At about 4pm on 14 July 1999, I rang my mother to say that I was leaving my house to come and collect her, as she would have been coming over to my house for dinner. She told me to hang on as [Mrs Widdowfield] was just setting her hair. I therefore waited about 10 minutes and then left the house. Just as I got to my mother’s house, [Mrs Widdowfield] was leaving. I said hello and goodbye to [Mrs Widdowfield] and went into my mum’s house.

17. My mother was just getting ready to leave for my house. I had picked up the mail to sort it out and as I did she told me to “leave these” and pointed to two pieces of paper on the side. My mother told me that she and my brother had made their wills and that [Mrs Widdowfield] had witnessed them. She added that she had not left me anything and that she did not feel guilty about this as my brother was going to leave everything to Victoria [Mrs Kentfield’s daughter]. I told my mum that the only way to make sure that Victoria inherited anything was to see a solicitor to make a proper will. I also added that a will has to have two witnesses. My mum said that she would see her neighbour, [Mrs Durban], later and ask her to sign the will as a second witness”. “20. We arrived back at my house and had dinner . I took my mum home about 8.30pm. My mum rang me that evening at about 10.30pm and asked if I would make an appointment for [Mrs Durban] to have her hair done. She had been to see [Mrs Durban] after I had dropped her back home and [Mrs Durban] had said she wanted her ends cutting off. I presume that Mum had asked [Mrs Durban] to witness her will that evening”. “26. I know the wills were incorrectly executed and I was aware of this at the time they were signed. I stated as much to my mum. If I had not discussed the fact the wills were invalid with my mum, at the time they were executed, I would have no reason to subsequently doubt their validity. I would have accepted the fact that the wills were valid and correctly executed, however, as I was there at my mum’s house shortly after the wills were signed, and as I discussed the matter with my mum at the time, I know, and have known since 1999 that the wills were invalid. The two witnesses were not present in the room at the same time and did not witness my mum’s signature at the same time. Despite saying this to mum on several occasions, she would not listen to me”.

[25]Mr Wright then gave evidence in his own defence. I found him an honest and broadly reliable witness. He did not pretend to have a perfect recollection of what had occurred, and did not recollect details that might have supported his case. He told me candidly that he did not want to make a will, and did not see why his mother wanted to make a will, as he thought that talk of wills involved talk of death, which he did not like to think about unnecessarily. But he did as he was told by his mother. Indeed, I gained the impression that Mr Wright often did as he was told by his mother – he explained how she wanted him out of the house, and he had to go – sometimes “with a bucket in his hand” when he was washing his taxi cab. I do not accept Mrs Kentfield’s evidence that Mr Wright controlled his mother. I think the situation was rather the reverse. It is true that Mr Wright changed his instructions to his solicitors about the days on which Mrs Widdowfield cut his mother’s hair and Mrs Durban’s hair in the week that the wills were executed. But I do not find his lack of certainty surprising. Having seen Mr Wright in the witness box, I am sure he had no great interest whatever in his mother’s hair-dressing arrangements, let alone Mrs Durban’s.

[26]Mr Wright’s statement dated 18th March 2010 described the crucial events as follows:- “In 1999 my mother became concerned that she had not made a will. She obtained a “Make your own Will” pack with 2 will forms and instructions…She read all the instructions and sat at the dining table of our neighbour [Mrs Durban] and wrote out her will in her own handwriting in accordance with those instructions. This was on Wednesday 14 July 1999 when my mother’s own hairdresser [Mrs Widdowfield] was due to visit 83 Bunbury Way next door to do Mrs Durban’s hair. I was with her. Mrs Durban and the hairdresser were also there as well while the will was completed. My mother then signed it followed by the two witnesses, who all signed while they all were still together”.

[27]Mr Wright then described how his own will had been written out by his mother on Friday 16th July 1999 in their own kitchen at 81 Bunbury Way, and was then signed and witnessed in the presence of both witnesses.

[28]Mrs Durban was, as I have said, the next door neighbour of Glad and Mr Wright. She was 80 years old when she gave evidence, but was nonetheless clear and precise. She had worked as a secretary for some 45 years before her retirement, and had spent two years in the 1970s working for a solicitor who undertook both probate and conveyancing work. She told me that she had witnessed wills on some 6 occasions in all, and had probably done so whilst she was working for the solicitors’ firm. In her witness statement, Mrs Durban said:

“I do not recall any of the exact details or events relating to the signing of the 2 wills in July 1999”, and “I am sure that the Deceased must have signed her will in the presence of both of us and then we both signed as witnesses in the proper manner. [Mr Wright] also would have signed his will in accordance with the instructions in the Will Pack and as I knew was required. Even though I do not recall any details of the 2 occasions that this happened on 14th and 16th July 1999, I can confirm that I have never knowingly wrongly signed a will in any way contrary to the rules”

. When she was cross-examined, Mrs Durban reiterated that:

“I do recall witnessing this will [the Will], but I cannot recall who the other witness was. I would not have signed it otherwise, as I was aware that there had to be two witnesses”

The latest authority on due execution

[29]In the recent Court of Appeal decision of Sherrington v. Sherrington

[2005] EWCA Civ 326

, the judge’s decision that the will had not been duly executed was overturned on the basis that, where the will containing an attestation clause was regularly signed by the deceased at its foot, and by two witnesses, the strongest evidence was needed to reject the presumption of due execution. The Court held on the facts of that case that, despite the witnesses’ evidence that the will had not been signed in their presence and that they had not intended to attest the will or the testator’s signature, the overwhelming probability was that an experienced solicitor had complied with the formalities, and that the presumption of due execution had not, on the evidence, been rebutted.

[30]With apologies for the length of the citation, Peter Gibson LJ said the following in giving the judgment of the Court:- “[38] As a matter of statutory construction it is plainly correct that meaning over and above 'signs the will' must be given to 'attests and'. This is made clear in some of the earlier authorities. In Hudson v Parker (1844) 1 Rob Eccl 14, Dr Lushington made certain observations on the meaning of the requirement in the then current form of the Wills Act 1837 that the witness 'shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary'. At (1844) 1 Rob Eccl 14 at 26 he pointed to the statutory requirement of attestation in addition to subscription and gave as the meaning of 'attest' to bear witness to a fact. He said:

'I conceive the witnesses in a will bear witness to all that the statute requires attesting witnesses to attest, namely, that the signature was made or acknowledged in their presence. The statute does say 'that no form of attestation shall be necessary', still the witnesses must attest, although the outward work of attestation may be subscription only'

. Similarly in Bryan v White (1850) 2 Rob Eccl 315 at 317 Dr Lushington said:

' “Attest” means the persons shall be present and see what passes, and shall, when required, bear witness to the facts'

. In Griffiths v Griffiths(1871) LR 2 P&D 300 at 303 Lord Penzance said of the statutory provisions:

'The statute says that the witness shall attest, and shall subscribe the will; which must mean that he shall put his name to the will as attesting … the fact that he saw the testator sign it; that is, he must put his name as witness.' [39] Both in textbooks (see, for example, 50 Halsbury's Laws of England (4th edn, Reissue, 1998) para 318) and in decided cases (see, for example, Roberts v Phillips (1855) 4 El & Bl 450 at 457 per Lord Campbell CJ and Re Bercovitz (decd), Canning v Enever [1961] 1 WLR 892 at 894 per Phillimore J in a judgment approved by this court [1962] 1 All ER 552, [1962] 1 WLR 321) it has been stated that the court must be satisfied that the witness had signed the will with the intention of attesting the testator's signature or of attesting the will. In Re Beadle (decd), Re, Mayes v Beadle[1974] 1 All ER 493 at 497, [1974] 1 WLR 417 at 421 Goff J in an obiter passage referred to what Phillimore J had said in Bercovitz about a witness's intention when signing and rejected an argument that attestation was not a matter of intention. The points taken by Mr Boyle on the language of s 9, while valid, cannot be decisive. We would therefore accept that a factual question is involved as to whether the witness intended to attest the testator's signature or will. The judge made no error on this part of the law he had to apply. [40] In so doing we should indicate that we do not agree with the view of Langton J in Benjamin [deceased (1934) 150 LT 417 at 419] that the intention of the witness is immaterial if the will is in proper form. He appeared to derive that from the decision of this court in Wright v Sanderson (1884) 9 PD 149, [1881–5] All ER Rep Ext 1373. However, what that case demonstrates is the strength of the presumption of due execution when there is an attestation clause and the testator and witnesses sign. In that case 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 did they see the testator sign. One witness said that she did not know what she was signing; the other said that she did not know what she was doing. Although the trial judge, Sir James Hannen P, did not doubt their honesty, he felt that he could not rely on their evidence to rebut the presumption arising from the regularity of the codicil on its face as regards all the formalities of signature and attestation when no suspicion of fraud arose. This court dismissed an appeal to it, the Earl of Selborne LC observing ((1884) 9 PD 149 at 161), '

I do not know how many wills, really well executed and duly attested, might not be brought into peril if, upon the sort of evidence which we have here, after a lapse of several years, probate were refused.' [41] To similar effect was Lord Penzance in Wright v Rogers(1869) LR 1 P&D 678 at 682. In this case 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. Lord Penzance said ((1869) LR 1 P&D 678 at 682) that the question was whether the court was able to rely on the witness's memory. He continued:

'The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed.' [42]It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has 'the strongest evidence', in Lord Penzance's words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator's signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness. [43] Did the judge err in the factual conclusion he reached on the intention to attest? He rightly acknowledged that on its face the will was validly executed and that the presumption of due execution, reinforced by the fact that the deceased was an experienced solicitor, who was likely to have ensured that the required formalities were undertaken, would apply in the absence of other evidence, though he nowhere refers to the need for the strongest evidence if the presumption is to be rebutted. The judge rightly referred to the degree of rush to catch the plane and to the deceased's impatience. It is clear from the judge's findings that Mrs Butt's evidence was decisive in his rejection of Yvonne's evidence that the deceased indicated to Mrs Butt and, through her, Mr Thakkar, that they were to witness the signatures of himself and Yvonne and that they then signed before the witnesses signed. Mr Thakkar's evidence is only relied on by the judge 'if necessary' as supporting Mrs Butt's 'cogent' evidence. … [63] Let us now stand back and take stock of the probabilities on the issue of due execution. We do so against the requirement, imposed for cogent policy reasons, that, where there is a will signed by the deceased at the foot of the will containing an attestation clause under which the witnesses have signed, the strongest evidence is needed to reject the presumption of due execution. Although the attestation clause in the will contained imperfections, in that the wrong gender was given to the deceased, those infelicities are immaterial given that the deceased signed against '

IN WITNESS whereof I the said Testatrix have signed.' [64] In favour of the judge's conclusion that the will was not validly executed is the evidence of the two witnesses, and only their evidence. In the case of Mrs Butt there is her evidence, in answer to the judge's question at the end of her evidence, that she did not intend to witness the deceased's signature in the will. But, for the reasons given in paras [45] to [48] above, that is a wholly unimpressive piece of evidence given her categoric evidence that she did not see the deceased sign nor his signature when the judge has found that the deceased did sign in her presence before she signed. In the case of Mr Thakkar he gave no direct evidence of the lack of intention to attest, but insofar as the judge was drawing an inference from Mr Thakkar not seeing the deceased sign or his signature, similar comments apply. It seems to us quite impossible to conclude that the judge had the strong evidence on this topic, let alone the 'strongest evidence' needed to rebut the presumption of due execution. For the reasons given, the cogency of Mrs Butt's evidence is open to serious doubt on the judge's own findings, to which doubt we would add the second aspect of concern discussed in paras [49] to [53] above. As for Mr Thakkar, even allowing for the fact that he gave his evidence through an interpreter, we regard his evidence as so riddled with inconsistencies that it can come nowhere near to constituting the strongest evidence needed to rebut the presumption of due execution. [65] Add to that the fact that the deceased was an experienced solicitor likely to have been well aware of the requirements for due execution, and by reason of the third aspect of concern discussed in paras [54] to [61] above, showing at the very time the wills were executed that he was insistent on compliance with the formalities, and in our judgment the overwhelming probabilities are that the will was duly executed. Or to put it another way, the strong presumption of due execution in this case from what on its face was a properly executed will has not been rebutted by the evidence of the two witnesses of the will. In our respectful opinion, the judge was plainly wrong on the first issue and his conclusion simply cannot stand. (2) Did the deceased sign the will in the presence of the witnesses? [66] Having decided that the judge's decision on due execution cannot stand at least on the ground that he adopted, we turn to the point raised on the Respondent's Notice. Mrs Talbot Rice submits that the judge's conclusion that the will was not properly executed should be upheld on the alternative ground that the judge erred in rejecting Mrs Butt's evidence that the will was duly signed by the deceased before she and Mr Thakkar signed it. The basis for this argument on fact is the judge's conclusion that Mrs Butt was 'an impressive witness' who had not 'in any way consciously or otherwise moulded her evidence to reflect [her husband's] wishes' and who had given 'cogent evidence that the statutory requirements were not complied with' (para [33] of the judgment). Mrs Talbot Rice not unreasonably contends that, having so described Mrs Butt, and having otherwise accepted all her evidence, the judge was scarcely consistent in not accepting her evidence that the deceased had failed to sign his will before she and Mr Thakkar signed as witnesses. [67] In our judgment, this argument suffers from a number of problems. First, for the reasons already given, we cannot accept that the judge was right to regard Mrs Butt as a cogent witness, or at least a witness whose evidence was cogent enough to displace the presumption of due execution. Secondly, the fact that the judge found Mrs Butt such a convincing witness can be said to make it particularly difficult for an appellate court to overturn his rejection of the one aspect of her evidence which he did not accept. Thirdly, Mrs Butt's evidence in this connection was not supported by Mr Thakkar. He was not able to say that the deceased had not signed the will before Mr Thakkar witnessed it. Fourthly, it appears to us that the judge's conclusion as to what happened when the will was signed has to be viewed in the round. In that connection the essential point, in our judgment, as explained above, is that the judge's rejection of Mrs Butt's evidence on this crucial issue, on which she was so sure and which founded the primary basis for the claimants' attack on the due execution of the will, provides a convincing basis for doubting the judge's reason for finding that there was no due execution. Not least (but not only) because of the strong presumption to which the Earl of Selborne and Lord Penzance made reference, that is far more telling than the converse contention, namely that the judge's reason for holding that there was no due execution should cause one to question his rejection of Mrs Butt's evidence as to the absence of the deceased's signature before she and Mr Thakkar signed the will” (emphasis added).

[31]I have set out this long citation because it demonstrates very clearly the proper approach of the Court to a case such as this. Admittedly, the main point in Sherrington was the question of attestation, but there was also a question of whether the two witnesses were present together, and the Court of Appeal made it crystal clear that the strongest evidence is necessary to rebut the presumption of due execution, where the will is regular on its face and contains an attestation clause, as this Will does, stating that it was signed in the presence of both witnesses.

Was the Will duly executed?

[32]I have reached the clear conclusion that the strongest evidence does not exist in this case to rebut the presumption of due execution. There are a number of pointers that seem to me to indicate that the Will was properly executed.

[33]First, there was clear evidence from all the witnesses that Glad was a careful and precise lady. Secondly, I do not believe that Glad would have mis-dated the wills. Therefore, I am quite sure that the two wills were indeed written out and executed on the days that they say they were executed. This, in itself, destroys Mrs Kentfield’s thesis that she saw both wills on the Wednesday afternoon, signed by Mrs Widdowfield, but not by Mrs Durban. I am sure that Glad would have dated them when she wrote them out. Thirdly, the wills look as if they were written, and indeed signed, at different times, just as Mr Wright and Mrs Durban say they were. Fourthly, I do not accept Mrs Kentfield’s evidence about the conversations she supposedly had with her mother on the afternoon of the 14th July 1999. This is reconstruction. She may well have discussed the Will with her mother and discussed the possibility of her daughter inheriting in due course, but I do not believe that Mrs Kentfield told her mother that the Will was not properly executed. Indeed, Mr Wright’s will had not even been written out by then. Fifthly, I am sure that Mrs Widdowfield was in a hurry when the Will was signed. She said, and I accept, that she always was. I can very well imagine her frustration at waiting whilst Glad wrote the will out in slow long-hand whilst she and Mrs Durban waited. Once she had done that, I am sure Mrs Widdowfield said she was off, but would be back on Friday and they could do Mr Wright’s will then.

[34]I do not need to resolve where the Will was written out, but I think it is reasonably clear that it was written out on Mrs Durban’s table in the living room of Number 83, just as Mr Wright recalls. I doubt all 3 (or 4 with Mr Wright) of them crowded into the galley kitchen to sign. It seems far more likely that all 3 signed at the table. But wherever it was, I am quite satisfied that both witnesses were present when Glad wrote and signed the Will, and both signed the Will at the same time in the presence of all 4 people. Mrs Widdowfield’s evidence of signing in a kitchen with a microwave does not persuade me that she really remembers. She had no reason to recall, and I think she is mistaken.

[35]In general terms, I prefer the evidence of Mr Wright and Mrs Durban to that of Mrs Kentfield and Mrs Widdowfield. The evidence of the latter witnesses is certainly not strong enough to rebut the presumption of due execution.

[36]As regards the days of the hair appointments, I do not think I need to resolve whose hair was being done in what house on what day. What matters is how and when the Will was signed, and I have been able to make clear findings on the evidence as to that central issue.

[37]The only argument that Mr Mark Dubbery, counsel for the Claimant, has been able to adduce that causes a pause for thought is his client’s contention that she would not have known the Will was invalidly executed if she had not seen them on the afternoon of the 14th July 1999 and discussed the matter with her mother. I do not think this is sufficiently strong evidence to rebut the presumption. It is just as likely that Mrs Kentfield was looking for ways of challenging the Will and rang Mrs Widdowfield after her mother’s death, who then, in ignorance of legal formalities, volunteered that she had been alone with Glad when she signed (misremembering as I have found she was). If Mrs Kentfield had had the conversation she says she recalls with her mother, she would have been bound to follow it up and suggest that her mother made a valid will. Her evidence that her mother would not listen does not ring true. Glad was said by everyone to be a precise and careful lady and would, I am sure, have wanted to do things correctly. That much is clear from the precise accounts she prepared for Mr Wright.

[38]I have, therefore, reached the clear conclusion that Glad’s Will was duly and properly executed in accordance with the attestation clause, and signed by Glad in the presence of both witnesses, who then themselves signed as witnesses in the presence of Glad and of each other.

[39]In these circumstances, the Claimant’s claim must be dismissed.