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5 June 2018 | Comment | Article by Roman Kubiak TEP

In a recent case the Court of Appeal emphasised the importance of witness evidence in a probate claim

The recent Court of Appeal decision in Payne v Payne [2018] EWCA Civ 985 (full case here) has emphasised just how important witness evidence can be in a probate claim.

The case involved two wills made by John Henry Adrian Payne (“Mr Payne”), who died in August 2012 aged 74. Mr Payne was twice married. From his first marriage he had four children. In 1997 he married his second wife, “Mrs Payne”.

The two wills

In 1998, Mr Payne made a will (“the 1998 Will”), which left the majority of his estate to Mrs Payne. The 1998 Will contained an attestation clause, and accordingly there was a presumption that it had been duly executed. The attestation clause contained spaces for the two witnesses to write their names, addresses and occupations. However, there was no space for the witnesses to actually put their signature. As such, while both witnesses had clearly printed their names, they did not “sign” it in the usual way.

In 2012 Mr Payne made another will (“the 2012 Will”), which appeared to homemade. The 2012 Will left legacies of £15,000 each to Mrs Payne, and to Mr Payne’s grandson, “Thomas”, with the remainder of the estate left to “John”, one of his sons from his first marriage. Unlike the 1998 Will, the 2012 Will contained an additional space for the witnesses to sign the will in the usual way. The witnesses to it were Thomas’s girlfriend, and her mother.

Mr Payne died in 2012. His estate was worth approximately £600,000.

The claim

Following Mr Payne’s death a series of disputes commenced between John and his family and Mrs Payne and her family.This led to John and Thomas bringing a claim seeking proof of the 2012 Will in solemn form. Mrs Payne defended the claim on the basis that it had not been duly executed, and made a counterclaim for the 1998 Will to be admitted in solemn form instead.

Initially, the claimants (i.e. John and his family) were legally represented. Mrs Payne remained unrepresented at all times, though she did have some ad hoc help from the Bar Pro Bono Unit.

The first hearing

At the first hearing, Her Honour Judge Faber heard oral evidence from the witnesses to the 2012 Will, Thomas’ girlfriend and her mother, as to the signing and witnessing of the will.

The judge found both witnesses to be “utterly unreliable”, and that any presumption of due execution that might have previously existed, had been displaced by their “manifest untrustworthiness”. Accordingly, the judge would not admit the 2012 Will to probate.

In respect of the 1998 Will, Mrs Payne was not able to produce the original, despite the fact that she knew it was being held by Winchester District Probate Registry. It is worth noting here the requirement under CPR r57.5(1) for Mrs Payne to lodge with the court any testamentary documents of which she had possession or control, including the original 1998 Will. As a litigant in person, Mrs Payne was unaware of her responsibility to provide the document and, for a time, the fact that she had not done so went unnoticed.

Additionally, Mrs Payne had not thought to obtain witness evidence from the two witnesses to the 1998 Will. When questioned why she had not done so, she simply responded “why should I do that?” Mrs Payne herself was also found to be “not an entirely reliable witness” and, accordingly, Judge Faber held that she could not admit the 1998 Will to probate either. As a result, Mr Payne would die intestate.

If you would like any further information, please contact our Contested Wills, Trusts and Estates Department.

The appeal

Both parties applied for permission to appeal the decision. John’s application was rejected, but Mrs Payne was granted permission to appeal. The matter was subsequently referred to the Court of Appeal.

Crucially, by this time Mrs Payne had accepted that she needed to obtain witness evidence in support of her counterclaim, and by then she had obtained two short affidavits from the witnesses to the 1998 Will, Mr Gordon and Mr Hogwood. Mrs Payne also called Mr Gordon to give oral evidence at the appeal hearing.

The Court of Appeal found Mr Gordon to be a clear, confident, truthful and reliable witness, and therefore accepted his evidence.

In reaching their conclusion, the Court held that, despite the fact that there was no specific space for a signature, by clearly writing their names in the space provided in the attestation clause, Mr Hogwood and Mr Gordon had intended to witness the will; there could be no other logical explanation as to why they would have printed their names there, other than to say they had witnessed Mr Payne sign his will. As such, the Court held that the 1998 Will had, indeed, been properly executed, and held, therefore, that it should be put to probate..


This decision demonstrates that witness evidence, whether good or bad, can be of paramount importance to a probate claim. Indeed, in this case, the original claim failed due to the untrustworthiness of the witnesses, whilst the counterclaim was ultimately successful because of the reliable evidence eventually placed before the court.

Additionally, the case highlights some of the evidential and procedural problems that may arise as a result of a lack specialist advice. Whilst Mrs Payne ultimately succeeded as a litigant in person, had she been legally represented her witness could have been present at the first hearing and the need to involve the Court of Appeal could have been avoided, thus saving time and costs. Mrs Payne candidly confirmed this herself in her skeleton argument, stating “I am a litigant in person and was ignorant to the evidential requirements to prove the intention of the attesting witnesses. Neither did I know that this would be needed”.

Author bio

Roman Kubiak TEP


Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

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