WITNESSES ARE VERY IMPORTANT
often, the question as to who should witness the signing of a will
is treated as an afterthought (after making a Will), but when a will
is contested, the ability to hear the evidence of the witnesses can
A recent case where this was
in point involved a daughter who believed her mother had died intestate
after revoking a will she had made in 1994. When her mother died,
in 2004, she applied for letters of administration over the estate.
Shortly afterwards, her mothers
French Canadian niece filed, in Canada, what she claimed was the deceased
womans will. That will left the entire estate to the niece and
was said to have been written when the niece visited her aunt in 2000.
It was claimed that the will had been posted to the niece after her
return to Canada.
She claimed that she was
not present when the will was created. The earlier will had made a
number of bequests and the woman was close to her daughter, especially
in her latter years, which made the contents of the new will
all the more surprising.
The womans family doubted
the authenticity of the later will. Firstly, it was typewritten and
no one recalled her having a typewriter. Secondly, there was some
doubt as to whether the will was written by someone whose native language
was English. Against this, the court did accept that the signature
on the will was that of the deceased. The key issue, however, was
that the daughter could not recognise the names of the witnesses to
As the mother never left
her flat unaided, the presence of the signatures of unknown persons
was strange to say the least. The absence of any evidence from them,
regarding the circumstances surrounding their witnessing of the will,
led the court to the conclusion that the niece had been involved in
the preparation of the will, which was not validly executed.
Had the niece been
able to produce the witnesses and their account supported hers, the
outcome might well have been different. If you think your will might
be challenged, the evidence of the witnesses to it could well be significant.
We can advise you on how to ensure that the chances of a successful
challenge to your will are minimised.
For further details, please contact me.