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ESTATE DISPUTES: Witnesses' oral evidence crucial in deciding between two wills

A will apparently executed in 2012 by John Payne, leaving most of his estate to his son by his first marriage, has been overturned on the grounds that the attesting witnesses' evidence was unreliable.

John Payne, of Plaistow, East London, died in 2012, at the age of 74. He had been married twice, having left his first wife Vera in 1997, after producing four children. Soon afterwards, he married his second wife, Kim Payne.

He had executed a will in May 1998, 14 months after his marriage to Kim, leaving her his entire estate of about GBP600,000. The original of this document was held at the Winchester District Probate Registry.

However, after Payne's death, a second homemade will emerged, dated 1 April 2012. This will appointed Payne's son John, and John's own son Thomas, as his executors, and gave almost the whole of the estate to John. There was an attestation clause in standard form, the witnesses being Thomas's girlfriend and her mother.

Kim Payne declared this will to be a fake, and applied for a grant of probate for the 1998 will in her favour. John Payne for his part pointed to various irregularities in the 1998 will – notably that Mrs Payne only had a photocopy of it, not the original, and that the witnesses had written their names in capitals, rather than signed them. He sought the court's support for the later will. Neither of the litigants were represented, and Thomas Payne did not take part.

An earlier hearing in the Central London County Court had found that both wills were invalid. The 2012 will had not been witnessed correctly, decided the judge, finding that the evidence of Thomas Payne and of the two attesting witnesses was 'utterly unreliable' to such an extent as to displace any presumption of due execution that might otherwise have arisen from the apparently regular nature of the attestation clause. There was no evidence that the deceased knew and approved its contents, she ruled. However, the judge also declined to approve the 1998 will, because of its technical shortcomings.

An appeal followed, and the England and Wales Court of Appeal has just given judgment. It agreed that the 2012 will was invalid. But it overturned the decision to also exclude the 1998 will from probate, mainly because Mrs Payne had been able to get statutory declarations from the attesting witnesses, one of whom also gave oral evidence. This witness convinced the court that the attestation had been done adequately, and in accordance with the provisions of s.9 of the Wills Act 1837, as substituted by the Administration of Justice Act 1982.

'The requirement, since 1983, for an attesting witness to sign the will should be construed as meaning the same as the previous requirement that the witness should subscribe the will', the judge commented. 'The change in wording has the potential to cause confusion, however, if it is interpreted as suggesting that a signature is required, in the sense of an identifiable and probably unique personal mark, as when signing a cheque or other formal document, rather than merely writing one's name with the intention that the act of writing it should operate as an attestation. The latter sense is perhaps more easily conveyed by the more antiquated language of subscription, but in the present context I have no doubt that the requirement for an attesting witness to sign the will may still be satisfied in the same way. Otherwise, the amendments made in 1982 would have had the wholly unintended, and regrettable, effect of introducing a new restriction on the form of writing that is needed to constitute an attestation of the will by a witness.'

The court duly admitted the earlier will to probate (Payne v Payne, 2018 EWCA Civ 985). The judge warned John Payne that he must now 'recognise and accept that our decision on the validity of the 1998 will is final and conclusive', and told him not to take any further steps to overturn it.