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Importance of witnesses in validity of a Will

Nov 23, 2018

A recent decision heard at the England and Wales Court of Appeal has highlighted the important role witnesses play in the validity of a Will.  Kevin Horn, Private Client Partner, here reviews the case and advises on the best practice when writing a Will.

Payne v Payne – the facts

John Payne (Mr Payne), who died in August 2012, had been married twice in his lifetime.  From the first marriage, which ended in 1997, he had four children including a son called John (John).  Shortly after his divorce he married his second wife, Kim Payne.  Mr Payne wrote a Will in 1998 leaving his second wife his entire estate, worth £600,000. 

Following his death in 2012, a second Will was produced, which had apparently been written in April of the same year.  This Will appointed John and John’s son Thomas as his executors and left John his entire estate apart from two pecuniary legacies of £15,000 each.  Kim Payne declared this Will to be fake and applied for grant of probate under the 1998 Will. 

A hearing in the Central London County Court in 2015 found that there were issues with both Wills, making both of them invalid:

  • The 1998 Will, while giving names, addresses and occupations of the witnesses were not signed by the witnesses.
  • The 2012 Will had not been witnessed correctly either, with the Judge finding their evidence ‘utterly unreliable’ leading to the conclusion that Mr Payne had not known or approved the contents of the Will.

John was denied the right to appeal this decision.  Kim Payne did appeal regarding the 1998 Will; a claim which she won.  In her appeal hearing, she produced the two witnesses who gave oral evidence that they had seen Mr Payne approve and sign the Will before completing their details.  It was noted by the Judge in the appeal hearing that while there was space on the Will for Mr Payne to sign there was only space for the witnesses to give their personal details, not any form of signature.

How to ensure witnesses validate your Will

“While Kim Payne has now been successful, it has been six years since her husband passed away; an incredibly long period of time that could have been avoided if the 1998 Will had been adequately signed,” explains Kevin.  “This case reiterates the importance of having your Will drafted by a legal professional to ensure that errors of this nature do not arise and you are able to focus on your grief and not a battle with the Courts.”

If you would like to discuss your Will with Kevin or a member of the Private Client team, you can contact them on 01329 222075 or email privateclientenquiry@warnergoodman.co.uk

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.