Court of Appeal – Contentious Probate – Payne v Payne [2018] EWCA Civ 985


This is an important decision concerning what is required in order for a person to witness a Will for the purposes of s. 9 of the Wills Act 1837. The court held that it is not necessary for a witness to sign a Will in the manner in which that word is commonly understood, and that it was enough for witnesses to have written their names on the Will.

The facts

The Deceased, John Payne, died on 22 August 2012. By his first marriage, he had had four children, including a son who was also named John Payne (‘John’). The Deceased divorced his first wife and later married the Defendant/ Appellant, Mrs Kim Payne (‘Mrs Payne’).

The Deceased left two purported Wills. The later Will, dated 1 April 2012 (‘the 2012 Will’), was made a few months before his death. By it, he purported to appoint John and his grandson Thomas Payne (John’s son, ‘Thomas’) as his executors, and subject to two pecuniary legacies of £15,000 each to Mrs Payne and to Thomas, he left the residue of his estate to John. There was an attestation clause in substantially standard form, the attesting witnesses being the girlfriend of Thomas and her mother.

There was also an earlier Will, dated 19 May 1998 (‘the 1998 Will’), some 14 months after the Deceased’s marriage to Mrs Payne. This Will was made on a printed form. By the 1998 Will, the Deceased appointed Mrs Payne as his executor and made only one substantive gift, when after standard directions for payment of his death and funeral expenses, and a clause revoking any previous wills, he said:

I give and bequeath unto my wife Kim Payne my property, post office pension, insurance’s shares, & any money in my Abbey National account.

This clause was placed next to a marginal direction to ‘Set out particulars of legacies’ and was completed in manuscript in capital letters after the printed words ‘I give and bequeath unto’. Beneath it, there was a printed form of residuary gift, but the recipient of it was left blank.

Under the blank residuary gift, there was a space for the testator’s signature, where the Deceased signed. This was followed by a printed attestation clause. There were then four dotted lines left to be filled in opposite the words ‘witness’, ‘address’ (two lines) and ‘occupation’ for the first witness, and the same again for the second witness. No separate space was designated for each witness to place his signature, in addition to filling in his name. In contrast, there was a space left for the testator’s own signature, which was a dotted line opposite the word ‘signature’.

The two witnesses to the 1998 Will wrote in their names, addresses and occupations in capital letters in the designated places, but did not place their signatures on the Will.

History of the proceedings

In August 2014, John and Thomas issued a claim seeking proof in solemn form of the 2012 Will. Mrs Payne filed a Defence and Counterclaim in which she denied that the 2012 Will had been validly executed, and sought proof in solemn form of the 1998 Will, which she said had been validly executed.

The trial of the claim took place in 2015 before HHJ Faber in the County Court at Central London, with John and Thomas represented by Counsel, but with Mrs Payne acting in person. The Judge heard evidence from John and Thomas, the two witnesses of the 2012 Will, Mrs Payne and her daughter. The Judge concluded that neither Will should be admitted to probate, for the following reasons:

  • In relation to the 2012 Will, the Judge found the evidence of Thomas and the two attesting witnesses to be ‘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. She held that she was unable to find that the 2012 Will had been correctly witnessed or that the Deceased knew and approved its contents. John was refused permission to appeal against the dismissal of the claim by Briggs LJ (as he then was) at an oral hearing.
  • In relation to the 1998 Will, the Judge held that it had not been validly executed, for two reasons: (1) merely filling in the names of the witnesses in capital letters, as shown on the only available copies of the 1998 Will, did not in itself satisfy the need for the will to have been ‘signed’ by the witnesses and (2) that her decision might have been different if there had been oral evidence adduced by Mrs Payne that the witnesses had thereby intended to attest the Will, but neither witness had been called to give evidence, and the burden of proof had therefore not been discharged by Mrs Payne as the party who was propounding the 1998 Will. This latter conclusion was reached despite Mrs Payne’s own evidence that she was in the room when the witnesses ‘signed’ the Will.

Mrs Payne’s application for permission to appeal was heard by Briggs LJ at the same time as John’s application. Mrs Payne, acting in person, made an application for permission to adduce fresh evidence, in the form of two statutory declarations made by the attesting witnesses. Both witnesses stated in the statutory declarations that they had witnessed the Deceased’s signature and had written their names and addresses on the Will. Mrs Payne had also sought to rely on two short witness statements from the witnesses at the 2015 trial, but had been told by the Judge that she needed to seek her opponent’s consent to do this, and he had not agreed to this, with Mrs Payne then not taking the matter further by way of an application to the court.

The Court of Appeal hearing

As neither side was legally represented, the court decided to hear the oral evidence of one of the witnesses and that it would then hear the parties’ submissions on the appeal, including on the question of whether the witness’ evidence should be admitted and (if so) what weight should be attached to it.

The court held that if the evidence was to be admitted, it would provide strong support for Mrs Payne’s case, it considering that the witness was truthful and had a reliable recollection of the Deceased signing the 1998 Will and that he and the other witness had then put their names, addresses and occupations on the Will. The natural inference of this, the court held, was that they thereby intended to write their names as witnesses of the Deceased’s signature. The absence of a conventional signature was hardly surprising, given that the form provided no separate place for their signatures to be appended.

Law

Section 9 of the Wills Act 1837 requires that each witness either ‘attests and signs the will’ or ‘acknowledges his signature’ in the presence of the testator, but ‘no form of attestation shall be necessary’.

In relation to deaths before 1 January 1983, section 9 of the 1837 Act stated that ‘such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.’

The court noted that the original version of section 9 did not use the verb ‘sign’ except in relation to the signature of the testator. The purpose of the change to the modern section 9 was to use the ordinary modern English word ‘sign’ rather than the more archaic ‘subscribe’, but this was not intended to be a change of any substance.

The problem in the present case had been partly caused by the fact that the printed form used for the 1998 Will appeared to be one that pre-dated the 1982 amendments; there was a reference in the attestation clause to the witnesses having ‘subscribed’ their names.

Original of the 1998 Will

At the 2015 trial, the judge and the parties did not have a complete copy of the 1998 Will to work from, and they were unable to inspect the original even though it was known to be held at the Winchester District Probate Registry.

The court held that this was a serious procedural irregularity that should never have been allowed to happen, as CPR r. 57.5 required testamentary documents to be lodged with the court.

On obtaining the original of the 1998 Will, the court noted that there were directions included on the form which had not formed part of the photocopied version which was used at trial. One of the directions stated that the two witnesses must ‘sign their names and addresses against the attestation clause before either leaves Testator’s presence’. This showed again that the form pre-dated the amendments to section 9.

The original of the Will also had at its top the signatures of Mrs Payne and a solicitor, above the words ‘executor’ and ‘solicitor’ written in faint pencil. The court held that the signature of a person who was apparently a solicitor provided some reassurance that the document was genuine.

Decision

The court decided that the appeal should be allowed and the 1998 Will should be admitted to probate for the following reasons:

• The Judge had pronounced against it even though it appeared on its face to be validly executed, and there was no requirement in law for the witnesses to have ‘signed’ the Will in the usual modern sense of that word, as opposed to writing their names with the intention of attesting it.
• The Judge reached her decision without having seen the original of the 1998 Will, even though it was known by the end of the trial to be held in the Winchester District Probate Registry, and it was clear from the photocopies of it in evidence that the full text had not been reproduced.
• The Judge knew that Mrs Payne belatedly wished to adduce written evidence from the two attesting witnesses, but she took the view that this could not be permitted unless the claimants consented, which they did not. The Judge did not seem to have considered whether the interests of justice might have required an adjournment so that the original of the 1998 Will could be obtained, and arrangements could be made for at least one of the attesting witnesses to give oral evidence.
• There is a strong public interest in valid testamentary dispositions being upheld, which was reflected in many of the special procedural provisions which apply to contested probate proceedings.
• The special importance of hearing evidence, if at all possible, from an attesting witness was reflected in the long-established rule that such a witness is treated as a witness of the court, whose duty it is to give to any party who asks for it an account of the circumstances in which the Will was executed.
• Mrs Payne’s application to adduce fresh evidence on her appeal should be granted, because without the evidence of the witness, the court was unable to pronounce on the validity of the 1998 Will, and the interests of justice required that it should be admitted to probate if it was validly executed. Although an appellate court will not normally grant permission for fresh evidence if it could with reasonable diligence have been adduced at trial as per Ladd v Marshall [1954] 1 WLR 1489, those principles do not place the court in a straitjacket, and there are times when the overriding objective of dealing with cases justly must prevail even where the evidence in question could and should have been obtained in good time for the trial.

(Author: William East)

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