Leah considers the recent decision of the High Court in the case of Watts v Watts EWHC 668 (Ch).
The recent High Court decision in the case of Watts v Watts has been widely reported in the press as an example of the breakdown of a family relationship and a dispute between siblings over their late mother’s estate. It is perhaps unfortunate that the defendant’s comments as to his sister claimant’s character and ability or otherwise to work, have taken precedence. However, the case is interesting as an exploration of the formalities required to execute a valid will.
The case was brought by Christine, against her brother Gary, in relation to their mother Valerie’s estate. Valerie Watts died on 26 February 2011 and on 5 April 2011 a grant of probate was obtained in her estate. Whilst Valerie had executed a will in 1999 dividing her estate equally between her two children, the grant of probate proved a will dated 12 January 2011, executed some 14 days before she died. The 2011 will purported to leave Valerie’s entire estate to Gary, and disinherit her daughter, Christine, entirely.
Christine challenged the validity of this will, and issued a claim relating to the validity of the 2011 will, as well as issuing a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 as a child of the deceased. In the event, the judge was not required to make any order in relation to the financial provision claim.
The circumstances of Valerie’s last will were subject to some dispute. It was agreed that she had made an appointment with will draftsmen in early January 2011, but was unable to keep the appointment as she was taken in to hospital. Valerie’s sister Yvonne explained that, at Valerie’s direction, she obtained a prepaid will form, and handwrote Valerie’s instructions. Whether Valerie intended to disinherit her daughter was of some dispute and, although no claim of undue influence was specifically discussed, the judge did note that both Gary and Yvonne were disinclined to see Christine inherit anything from Valerie. Interestingly, despite the chronic state of her illness, and the proximity of the execution of her will to her death, there was no suggestion that Valerie did not have capacity to make a will.
The circumstances of the signing and witnessing of the will were examined in detail by the judge. Section 9 of the Wills Act 1837 sets down the formalities required to execute a will. The Act states
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 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 any other witness),
but no form of attestation shall be necessary.
Gary claimed that he was merely in the room when his mother signed the will, and had passed her a pen with which to sign. He stated that he asked a nurse to come in to the room to witness his mother sign a document, but that he did not specifically say it was a will. He rejected the accusation that he had signed the document, whether at his mother’s direction or otherwise.
Valerie’s sister, Yvonne, was also in the room at the time, and acted as a witness to the will. She clearly said that she saw her sister sign the will, and that she was in the room in the presence of her sister signing the will and the nurse acting as second witness to the will, at the time. She also disputed that Gary had signed the will at all.
The nurse who witnessed the will gave evidence. She claimed that she did not know the document was a will, and was very upset when she later found out she had been asked to witness a will, as this was against hospital policy. She said that Gary had asked her to come in and see his mother, and that when she went in to Valerie’s room she was asked to witness Gary’s signature as his mother’s next of kin. She further went on to say that she did not hear Valerie say anything whilst she was in the room, nor did she see Yvonne sign the document.
Christine relied on a handwriting expert, recorded by the judge as a well-known and respected forensic document examiner, who found strong positive evidence that Valerie did not sign the signature on the 2011 will. By contrast, Gary’s handwriting expert was referred to as ‘a graphologist with no scientific training’.
When a will appears to have been signed, dated and witnessed, a presumption of due execution applies. This provides that a will which appears to have been executed in accordance with the relevant provisions as set out in s.9 Wills Act 1837, will be presumed to have been executed correctly. The burden therefore fell on Christine, who was not present at the time the will was signed, to prove the will was not executed correctly. This was of course a difficult burden to discharge when she was not present at the execution of the will, and in the face of two people, one a witness to the will, who were both present with the testator on the day the will was said to be drafted and signed.
Having assessed the evidence of the three witnesses of fact, as well as the relative strength of the evidence of each of the experts, the judge found the 2011 will to be invalid, and declared the validity of the 1999 will in its place. The finding by the judge was that Valerie did not sign the will, as Gary suggested, but that Gary had signed the will and simulated his mother’s signature, as suggested by both the evidence of the nurse and the forensic document examiner. As a result, the estate was to be divided equally between Christine and Gary, and no order in relation to Christine’s financial provision claim under the Inheritance (Provision for Family and Dependants) Act 1975 was required.
The case is interesting as an exploration of the requirements of s.9 Wills Act 1837 and in raising the importance of assessing issues relating to the execution of the will. It is a clear reminder that cases are decided on the strength of the evidence of witnesses, and not on their numbers alone; an issue that many potential claimants will feel prevent them from pursuing their claim.
Finally, the judge noted that Valerie’s estate was ‘not large’, but this trial was heard 15 months after the claim of invalidity was issued, and more than 30 months after Christine’s original claim under the Inheritance (Provision for Family and Dependants) Act 1975 was issued. It has been reported that the costs of all parties totalled nearly £250,000, despite Gary Watts having been represented at the hearing by a barrister acting pro bono (without charge) and having represented himself throughout the claim. Such comments only underline the need for all parties to act reasonably and proportionately, and to obtain expert advice wherever possible.