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Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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Holographic will was invalid
22 April 2021

The provisions of Section 9 of the Wills Act 1837 (“the Act”) have been in force for over 180 years.  Despite this, the question of whether a will has been validly executed continues to come before the courts and this was the position in the recent case of Re Robert Whalley (deceased) V Ebrahimi [2021].

The issue before the court was a simple one of fact, namely did two individuals validly witness the will of the late Professor Robert Whalley (“Robert”) dated 3 May 2018 (“the 2018 will”) on 3 May 2018 in accordance with the Act?  If the answer to that question was yes then the relevant will would be valid but if the answer was no then a further issue would arise, namely whether an early will of Robert dated 17 September 2012 (“the 2012 will”) was validly executed.

The Law

The Act provides:
“(1)    No will shall be valid unless:
(a)    It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b)    It appears that the testator intended by his signature to give effect to the will; and
(c)    The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)    Each witness either:
(i)    Attests and signs the will; or
(ii)    Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary.
(2)    For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made on or after 31 January 2020 and on or before 31 January 2022,
    “presence” includes presence by means of videoconference or other visual transmission.”


The facts

Robert died on 4 July 2018, aged 80.  Probate of the 2018 will was granted on 7 February 2019 to Professor Ebrahimi (“the Professor”).  The Professor was the named executor of Robert’s estate in the 2018 will and was also the defendant in the court proceedings.

The 2018 will left Robert’s estate, valued at a little over £3m, to the Professor and his wife as to 50% each.  The 2012 will left 90% of the estate to the claimant in the proceedings, the British University in Dubai (“BUID”) and 5% each to the Professor and another academic, Professor A-Ameer.

The 2018 will

The 2018 will was a holographic one page will.  Curiously its execution by Robert was apparently witnessed by two witnesses (“the Ilkley witnesses”) (although there was no formal attestation clause) in Ilkley, West Yorkshire, where Robert then lived, on 4 May 2018, the day after it was purportedly executed by Robert.  It was common ground between the parties that the Ilkley witnesses witnessed Robert’s signature on that day at a time when they were not together as witnesses.  Accordingly, they could not be said to have attested the will in accordance with the Act.  However, on the reverse side of the page there were two further names and addresses and signatures each with the date of 3 May 2018.

The Professor asserted that these two signatures were those of two professional colleagues of his from Loughborough University (“the Loughborough witnesses”).  He stated that he and the Loughborough witnesses had travelled to Ilkley on 3 May 2018 for a visit with Robert and whilst there (and at a time when the Professor was not in the room) Robert had got out a document, signed it and asked each of them to witness and sign it, which they did. They did not know the document was a will.  The reason put forward as to why Robert then obtained two more signatures the following day was because he had a concern that the Loughborough witnesses’ attestation may not have been valid as they were not UK nationals, one being a Greek national and the other a Cyrpriot national.

The claim

BUID asserted that the 2018 was invalid because it did not comply with the Act.  The signatures of the Loughborough witnesses were said to have been added at a later date to represent that those “witnesses” had witnessed the will validly on 3 May 2018 when that was not the case.  In effect, a conspiracy was alleged between the Loughborough witnesses and the Professor.  BUID sought an order propounding in favour of the 2012 will.  The Professor defended the claim and sought to assert that the 2018 will was valid.

The trial

At the trial the court heard evidence from several witnesses but the last one called to give evidence for the Professor, Dr Antonios Pezouvanis (“Antonios”), one of the Loughborough witnesses was perhaps the one whose evidence had the most influence upon the decision made by the judge.   In examination in chief, Antonios was taken in a bundle of documentation before the court to an affidavit of due execution that he had made on 4 October 2018 with a view to obtaining probate.  In that affidavit he confirmed that he and Dr Panagiotis Athanasious, the other Loughborough witness were present at Robert’s home on 3 May 2018 and that they had each witnessed the 2018 will in the manner set out above.  Antonios was asked if the contents of that affidavit were true and he replied simply “no”.  When asked how he would like to correct the affidavit he stated “there was no meeting on 3 May 2018”.

Having heard Dr Pezouvanis’ evidence, the Professor withdrew his defence to DUIB’s claim that the 2012 will was valid and his counterclaim propounding in favour of the 2018 will.  Accordingly, the judge made an order that 2018 will was not validly attested and revoked the grant of probate that had been issued in respect thereof.  He also made an order for costs against the Professor.

Conclusion

This case is a useful reminder of the importance of ensuring that the provisions of the Act are fully complied with.  Whatever the consequences of a failure to do so might be and regardless of the wishes and intentions of the testator a will will always be held to be invalid if not executed in accordance with the Act.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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