An unusual document submitted to probate as a valid Will

The Story of an Unusual Will

The recent case of The British Diabetic Association v Chenery [2024] EWHC 3466 (Ch) is the most recent example of an unusual document submitted to probate as a valid Will.

The background

Mr Chenery prepared his Will using two pieces of cupboard food boxes, one cut from a fish fillets box and the second cut from a mince box. Each box piece contained Mr Chenery's handwriting disposing of his assets. He signed the second "page", which was attested by two witnesses and dated 3 May 2021. The two box pieces were numbered 1 and 2 but not bound together in any way.

Mr Chenery did not tell anyone apart from the two witnesses about his Will. He killed his dog and committed suicide the next day.

The Will was found by the police when his body was found and taken by them as it seemed to not only be intended testamentary disposition but also in the nature of a suicide note.

The Will left Mr Chenery's estate to the British Diabetic Association with ornaments and pottery passing to the Hornsea Collector's Society. Had he died intestate, his estate would have been divided between his five sisters and three nieces. The Will clearly stated that he did not have a close connection with his family and did not want to die intestate.

The British Diabetic Association sought confirmation of the validity of this unusual Will.

The law

While the whole world is moving forward, the validity of Wills is still governed by the Wills Act 1837. Although the Act does not require the Will to be made in any prescribed form or using any particular wording, it does, however, state that to be valid, the Will must:-

·         Be in writing and be signed by the testator himself (or someone else in the testator's presence and at his direction), and

·         Appear as the testator intended by his signature to give effect to the Will, and

·         Contain a signature of the testator made/acknowledged in the presence of two or more witnesses present at the same time; and

·         Be signed by the witnesses in the presence of the testator, or witnesses must acknowledge their signature in the testator's presence.

Usually, the pages are bound together if the Will has more than one page.

There is a long-standing principle that the court should favour a result where the deceased can be found to have died testate rather than intestate, as established in Weatherhill v Pearce [1995] 1 WLR 592.

The outcome

The court accepted that the two pages contained revocable dispositions intended to take effect upon death, demonstrating the deceased's intention to make a will. The second page was validly executed per the Wills Act 1837 requirements, as the deceased acknowledged his signature in the presence of two witnesses.

Applying the principles from Tiernan and Bond v Seawell, the court concluded that the presumption applies, so the unattested first page was present in the same room at the time of execution. There was no evidence to rebut this presumption.

Following Weatherhill v Pearce, the court determined that it should give effect to the deceased's clear testamentary wishes and not undermine the Will unless there was clear evidence of non-compliance with the rules.

Practical points

Although s.9 of the Wills Act allows some variation in the way in which a Will can be executed, in practice, to avoid any confusion and evidential problems, the following approach is recommended:

·         Where the Will is written on more than one piece of paper, ideally, the pages will be fastened together;

·         The testator and two suitable witnesses should remain together in the same room and be attentive throughout the signing process to comply with the statutory requirement of "presence";

·         The two witnesses should both watch the testator sign

·         Each witness, in turn, then signed the Will, watched by the testator and the other witness, and

·         The Will should contain an attestation clause confirming how the Will was signed.

How can we help

To avoid any issues with the validity of the Will, whether due to its form, wording, execution, or the testator's capacity, it is always best to seek professional assistance. This gives the testator peace of mind and saves their estate from being depleted by costly litigation following their passing.

If you would like to put a Will in place or review your existing one, our Will and Estate Planning Team will be happy to assist you. Please send us an email to wep@leedsday.co.uk or telephone us on the number below. If, on the other hand, you feel that the Will of your deceased's loved one does meet the legal requirements, our Litigation team would be pleased to advise you on the best course of action. Both teams can be contacted on 0333 577 2250.