Execution is Key: Re Whelen (Deceased)

Nov 25, 2015
Judgment was handed down last week by His Honour Judge Behrens on the question of the validity of a Will.

Mrs. Whelen left two Wills, one made in 1982 and a further Will alleged to have been executed in 1999. 

The 1982 Will left the Deceased’s estate, valued at approximately £1.8 million, equally between four national charities. 

The 1999 Will left a specific gift of a property to the Deceased’s closest friend, Mrs. Turner, along with cash sums to Mrs. Turner’s three children and one other. The remainder was to be split between Mrs. Turner and the Deceased’s accountant and adviser, Mr. Summers. There was no provision for any of the four charities of the 1982 Will in the 1999 Will. 

The Claimants, the charities of the 1982 Will, sought to prove that the 1999 Will was not valid on the basis that the 1999 Will was not executed in accordance with Section 9 of the Wills Act. Specifically, the Claimants alleged that the Will was not signed by the Deceased in the presence of two witnesses as required by Section 9(1)(c) and the two witnesses did not sign the Will in the presence of the testator as required by Section 9(1)(d). 

The Presumption of Due Execution

It is settled in case law that where a Will has a perfect attestation clause, that is a clause under the Testator’s signature where the Witnesses sign to indicate that the testator signed in their presence, there is a presumption that the Will was duly executed. 

A court will therefore require the strongest evidence before it believes that the Will in question was not duly executed (Wright v Rogers (1869)).

Lord Justice Neuberger, outlined in the case of Re Channon in 2005 two reasons for this approach. Firstly oral evidence as to the way a document was executed many years ago is not likely to be reliable. Secondly, setting aside a Will which on the face of it is properly executed is in effect declining to implement the wishes of the now deceased Testator.

In the same case Lady Justice Arden suggested that there is a sliding scale of what evidence would be sufficient to rebut the presumption of due execution, determined by all the circumstances of the case including the evidence that the will was properly executed.

The Judgment

In the case of Mrs. Whelen, HHJ Behrens held that the 1999 Will fell on the lower end of the sliding scale and therefore less evidence was needed to rebut the presumption that it had been duly executed. 

One of the reasons for this was that the 1999 Will was homemade and there was no evidence that the Deceased, her friend Mrs. Turner who had assisted with the Will’s preparation and execution, or either or the Witnesses who had attested the will were aware of the formalities for the necessary execution.

The Judge found that in fact the two Witnesses had no knowledge that they were attesting the Deceased’s Will and had believed they were witnessing the Will of someone else entirely. The Judge also found that neither Witness had in fact met the Mrs. Whelen and could, therefore, not have been present when the Will was executed.

It was held that the 1999 Will was not executed in accordance with Section 9 of the Wills Act 1837 and could therefore not be admitted to probate. 

The charities were permitted to admit the 1982 Will. 


This case confirms the presumption of due execution where a Will has on the face of it, a perfect attestation clause. It has also shed more light on the evidence that would be needed to rebut this presumption and in particular that the degree of evidence needed will depend upon the circumstances of the case and the evidence of due execution available.

In the instant case the presumption had been easier to rebut on the basis that the will was homemade and there was no suggestion that any of the parties involved knew of the required formalities of a Will.

The decision serves as a reminder that homemade Wills are more susceptible to successful challenge as the crucial legal procedures are left in the hands of non-professionals. Additionally, the fact that a Will is homemade can often give rise to additional suspicions of undue influence or coercion, or lack of knowledge and approval of the contents by the Testator, as quite often other people will have had a hand in preparing the Will.

Daniel Winter

About the author

Daniel Winter

Daniel joined Nockolds in 2009 and is a Partner in our Commercial and Property Litigation Team. Daniel has been practising as a qualified Solicitor for ...

View Profile »

« Back

No articles available