Probate claims: wills: children: deceased persons: witness statements: signatures: inconsistencies in witness statements: [art 57 civil procedure rules 1998]

The court propounded the will in favour of the claimant, as although there were inconsistencies in the witness statements of the attesting witnesses regarding the physical characteristics of a disputed will, they were sure that the signature at the foot of the will was their.

The claimant daughter (B), in a probate action, applied to propound a will found in the house of her deceased father (H) shortly after his death. B was the daughter of H by a second marriage. The will found in H’s house appeared to have left the majority of his estate to B. B had made contact with H about three years before his death, having had no contact for a period in excess of twenty years. The first and second defendants (V and J) were also children of J from his first marriage and had also made contact with him prior to his death. They were also hoping to have been included in H’s will. The will was on a single sheet of paper. It had been signed by two witnesses and bore H’s signature. The witnesses signature was at the bottom of the page and the page folded through the signature. V and J entered a caveat against the will. B sought a declaration that V and J had no interest on intestacy, or at all as V and J had been formally adopted by their mother and her new husband. V and J lodged a defence alleging firstly, that the will was not genuine, secondly that if it was genuine, it had been obtained under undue influence and finally that there was in fact a later true document that had been removed. They based their allegations on inter alia the evidence of the witnesses to the will (D). D recalled that at the time of attestation there had been more that one page in the document and that D had signed it at the top and not the bottom of the page. They were however quite clear when shown the signatures on the will that those were the signatures. B successfully applied to strike out the defence but failed to get summary judgment. The matter was ordered to go to trial in view of the apparent inconsistencies in the attesting witness statements. Another son of B, the third defendant, applied to be joined in order to cross-examine D at trial under CPR Part 57, but did not serve a formal defence.

HELD: The will as found in H’s house following his death was a true will and the court would propound in favour of that will. D were unequivocal that the signatures on the document were theirs. The other discrepancies in D’s evidence and in their recollection of events were not relevant. The discrepancies could be attributable to confusion following the passage of time and from the pressure of having to recount repeatedly the same event.

Judgment for claimant.

SAMANTHA JANE BAGLEY v (1) KIM BRECKON (2) BEVERLEY BRECKON (2004)