Just because witnesses to a will unexpectedly could not remember witnessing it did not make a will invalid according to the Court of Appeal.
The case involved a challenge to the will of a retired academic, whose new will (made nine years before he died) made his girlfriend the main beneficiary of his estate, with his children being given ten per cent of the estate each. They challenged the will, seeking to have an earlier will – which left them his entire estate – validated. Surprisingly, the girlfriend also could not remember the will being executed.
In the lower court, it was considered that on the balance of probabilities the will was not properly executed. Despite the fact that the witnesses were satisfied that the signatures on the will were theirs, the judge considered that since they were not elderly and were in full possession of all their faculties, they would have remembered witnessing the will. The will was therefore ruled invalid. The professor’s girlfriend appealed against the decision.
The Court of Appeal considered that the passage of nine years would be sufficient to explain the lapse of memory and that the new will was therefore valid. The evidence was not sufficient to show that the will has not been properly executed.
