Due Execution of a Will

Gray’s Lawyers’ Latin a book that modestly describes itself as an invaluable reference book of law related Latin defines the presumption “omnia praesumuntur rite esse acta” as meaning that “all things are presumed to have been correctly done”. The definition is followed by the somewhat tart sentence “A very remarkable presumption in the light of life generally”.

Notwithstanding Gray’s tart comment the usefulness of the presumption is confirmed by the judgment of Ms. Justice Pilkington delivered on the 30th of November 2018 in the case of Leopold v Malone. The case concerned the due execution of a will.

The requirements for due execution of a will contained in Section 78(2) of the Succession Act 1965 are well known. The requirements were summarised by Judge Pilkington with reference to Sperrin; Succession Law 1965 and Related Legislation A Commentary as

(a) a testator must either make or acknowledge his or her signature in the presence of at least two witnesses who are present at the same time;

(b) where a testator signs or acknowledges his or her signature in the presence of the witnesses, they need not see the signature or know that he or she is signing a will provided that they see the act of signing, where the testator acknowledges his or her signature, the witnesses much have had an opportunity of seeing it, even if they did not avail of the opportunity;

(c) the witnesses must sign the will to bear witness to the execution of the will by the testator;

The will under consideration contained on its face the signature of both witnesses. One witness (MH) gave evidence that she recollected being asked to sign a document by the deceased but did not know that it was a will. She had no recollection of there being any writing in that portion of the document she was asked to sign. She had no recollection of either a typed attestation clause or the signature of any other parties appearing on the document when she signed. She was adamant that she never met the other attesting witness. Judge Pilkington accepted that she no incentive in the evidence that she gave and gave her evidence honestly and without hesitation”.

The evidence of the other witness, a solicitor, was that when he arrived to make the will MH was present. He left the Deceased’s property to see if he could find any other person available to act as witness, having failed to do so he himself witnessed the will. He accepted that in acting as a witness to the will he was ensuring that the pecuniary bequest to him in the will would be null and void. The Judge found him to give cogent evidence throughout. Judge Pilkington faced with starkly conflicting evidence from two attesting witnesses whose credibility had not been impugned applied the presumption of due execution and upheld the will. Judge Pilkington stated that in her view the best exposition of the applicability of the presumption is set out in a judgment of Davitt J. in the case of Goods of McLean  [1950] IR 180 when he asserts: “If I am correct so far, and if the maxim, omnia praesumuntur rite esse acta, is merely the expression in short form of the application in a particular manner of the general principle of the balance of probability, then it seems to me whenever there is a question as to due execution there is always room for the application of the principle, whether the process be described in Latin or in English. What I have been leading up to is this: if both the attesting witnesses give evidence negativing due execution and their evidence is accepted by the court as convincing, and, therefore, true and accurate, then there is an end of the matter and the will must be condemned; but until the court ‘does’ reach that degree of conviction there is room for the principle. There is never any difficulty about accepting the evidence of witnesses who appear in every way to be truthful, whose recollection appears to be trustworthy, who are not contradicted by any other testimony, whose evidence is entirely consistent with the probabilities of the case. Where, however, their evidence is quite inconsistent with the probability, then it is not to be so readily accepted. It is well to remember that human testimony is always fallible, and there may be cases where the inference to be drawn from facts clearly established and maybe strong enough to overbear the direct evidence of truthful and apparently reliable witnesses. It seems to me that, in will suits, as in other cases, and with respect to the issue of due execution as with respect to any other issue of fact, the direct evidence of witnesses which conflicts with the probabilities of the case must be made with the greatest care and circumspection before it is accepted as effective proof.”

Judge Pilkington noted that the presumption had been more recently been considered in the Court of Appeal decision in England and Wales in Wills of Re Sherrington [2005] EWCS Civ 236.

 Judge Pilkington appeared to place emphasis on the fact that the will contained a clear attestation clause. In Re Sherrington Gibson LJ cited the decision of Lord Penzance in Wright v Rogers [1869] LR 1 PD 678 at P682 “a court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of due execution of a will, in that light, a perfect attestation clause is the most important element of proof, where both the witnesses however, swear, that the will was not duly executed and there is no evidence the other way, there is no footing for the court to affirm that the will was duly executed.” 

What Judge Pilkington did not consider relevant was what was submitted to be the shortcomings of the Solicitor attending upon the deceased in or about the drafting and execution of the will and the subsequent codicil or the regrettable absence of contemporaneous or file notes. The Courts view was “these are separate and distinct matters.” Judge Pilkington stated “one could easily conceive of a scenario where the will is immaculately drafted and yet fails for want of due execution and equally the reverse where the will is for some reason, improperly or inaccurately drafted but nevertheless no issue arises as to its due execution. Accordingly the question of due execution is a discrete one.”

It is understandable that courts lean against condemning wills which appear on their face to be validly executed particularly if as in Leopold there is no evidence before the court that the will does not reflect the Testator’s intention. The Re Sherrington requirement of strong evidence to rebut the presumption of due execution in the event that a will contains an attestation clause and two attesting witnesses offer conflicting evidence practically means that a party seeking to condemn a will in such circumstances is rarely likely to succeed.

Maura King

7 October 2019