Wills - witnessing a signature


In Re the Estate of Richard Sherrington, deceased (2004) LTL, 13 July



The facts of this case attracted a great deal of attention in the national press. The defendant has apparently indicated that she will appeal. For probate practitioners interest lies in the first part of the judgment, which draws a distinction between someone signing their name on a document and someone witnessing a signature.


The deceased was a successful solicitor and entrepreneur. He had divorced his first wife, and married the defendant, who had two daughters. The deceased had two daughters and a son from his first marriage. He was described by Mr Justice Lightman as 'in every way a family man'.


He was a loving and supportive father, remained on good terms with his first wife, was devoted to his 94-year-old mother, whom he supported financially, and was loving to his two brothers and sister-in-law. 'He was a man of honour who believed in fulfilling his obligations as he saw them.' He established a close and loving relationship with his stepdaughters. However, his relationship with his second wife quickly deteriorated. He expressed the view to friends that his second marriage had been a great mistake and that the defendant was only interested in him for his money. He appeared to be very unhappy.


The deceased was killed in a car accident. He had signed a will leaving everything to the defendant and appointing her as sole executor. According to the defendant, she and the deceased had agreed to make wills leaving everything to the other, trusting the other to make proper provision for the family and, in particular, the children of the first to die. The reasons according to the defendant were:


- Neither wished the survivor to be dependant on the other's children;


- Inheritance tax on the first death would be avoided;



- If the deceased died first, the shares in his company would remain in single ownership and would not require sale or discontinuance of the business.



The defendant claimed that to keep the wills confidential, the deceased decided not to ask any of the staff at his firm of solicitors to draft the will. Instead, he asked one of the defendant's daughters to prepare the will. The daughter had no legal training but she had been employed by the deceased at a branch of his firm to take instructions for wills from clients. She had never drafted a will before.


The daughter said the deceased and defendant decided on 6 September 2001 that they wanted to execute their wills before leaving the next day on holiday. She prepared the deceased's will on 7 September using a precedent of a will and, when she had completed the draft, read it over the telephone to the deceased who said it was 'fine'. She then prepared a mirror will for the defendant.


The deceased's will, as subsequently executed, contained a number of errors. It used the masculine instead of the feminine when referring to the appointment of the deceased's wife as executor. It used the singular when it should have used the plural. It included a clause dealing with minor beneficiaries when all beneficiaries were of full age. The attestation clause referred to a testatrix rather than a testator.


When the wills were ready the defendant was driven to the deceased's office by a Mr Butt and his wife. Mr Butt was a friend and chauffeur of the deceased. The defendant gave the deceased his will. It was 6.30pm and the deceased and defendant had to get to the airport in time to catch a 9pm flight so there was a certain amount of urgency. The deceased signed the will. Mrs Butt and an office cleaner, Mr Thakkar (who had limited English) added their signatures as witnesses.


Mr Justice Lightman found that the will had not been properly executed. He accepted Mrs Butt's evidence that she had not seen the deceased sign the document and did not see or notice his signature on it. She said the deceased asked her to sign her name on each of the three sheets of paper and to put her address on one of them. She had no idea that she was signing a will (although this is not necessary) and (more importantly) had no intention of attesting or verifying the deceased's signature.


Acting on the deceased's instructions she then passed the document to Mr Thakkar and in Urdu asked him to do the same thing. When giving evidence Mr Thakkar agreed with Mrs Butt that he had not seen the deceased sign the will. He had said otherwise when interviewed earlier in proceedings, but explained in court that he had lied because he feared for his job. Mr Justice Lightman accepted the version he gave in court as correct.


The judge found that the will was invalid for lack of due execution and, therefore, revoked the grant of probate. The 'witnesses' had not seen the signature or acknowledgement and had not signed as witnesses of the signature.


Having found the will to be invalid, it was unnecessary to consider whether the deceased had known and approved the contents. However, Mr Justice Lightman expressed a view. He said there is suspicion when a beneficiary is instrumental in the preparation of a will. The degree of suspicion and the ease with which it may be dispelled depends on the circumstances of the case and the extent to which the will accords with or differs from the testator's known affections and intentions.


The judge found four extraordinary features of the will and the surrounding circumstances:


- By leaving everything to the defendant he made his children dependent on her and yet there was evidence that he distrusted her;



- The deceased was a wealthy man with expert employees available, and yet he allowed an unqualified person to prepare his will;



- The will contained a series of blatant errors;



- The will was prepared in the course of one day in a wholly unnecessary rush culminating in the use of a non-English speaking witness.



Mr Justice Lightman did not accept the evidence of the defendant and her daughter. He was not satisfied on the balance of probabilities that the deceased was ever informed of the contents of the will, or had even read it. The defendant had failed to discharge the burden of proof that lay on her to prove that the deceased knew and approved the contents of the will when he signed it.


By Lesley King, College of Law, London