NOTE: This article was published in October 2016 and reflects the law as it stands on the date of publication and not at any later date.
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There have been two recent reported cases on CPR 57.7(5)which applies in probate claims where the validity of a will is called into question. That rule provides that:
(a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross examine the witnesses who attested the will.
(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.
Bromley v Breslin: facts
Marjorie Beck died, aged 85, on 20 May 2013 (the testatrix). By her will, dated 19 April 2012, the testatrix left her residuary estate to her nephew, Stephen. She left nothing to Stephen’s two sisters, Anne and Linda. If the will were invalid, Stephen, Anne and Linda would be entitled, on an intestacy, to a third of the residuary estate each. The estate mainly comprised a house, worth between £300,000 and £350,000.
Neither Anne, nor Linda, accepted that the will was valid. They had obtained a statement from one of the attesting witnesses (Robert) given to a retired police officer, that neither the testatrix, nor the other witness (Tony), was present when Robert signed the will. If this evidence were accepted, the will would be invalid for non compliance with s9 of the Wills Act 1837 in that:
- the signature of the testatrix was not made or acknowledged by her in the presence of two or more witnesses present at the same time, as Robert was not present when the testatrix signed the will (s9(c)); and
- one at least of the witnesses (Robert) did not attest and sign the will in the presence of the testatrix (s9(d)).
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