For a will to be valid, one of the conditions imposed by the Wills Act 1837 is that two witnesses must attest the will by signing and acknowledging the signature of the person making it (the ‘testator’) and must do so ‘in each other’s presence’.

In a recent case, the will of a man who had named his eldest son as his sole beneficiary and executor was contested on the ground that there was a suspicion that the two witnesses had signed the document on different occasions and thus the will was not valid. An application was made to revoke the eldest son’s grant of probate and to rule the will invalid.

The first witness said that he had witnessed the will when the testator had visited him at home and that the other witness was not present. However, he could not identify the will because it had been presented to him folded, so he was unable to see what he was witnessing.

The executor contested this evidence, arguing that the document could not have been folded as the witness claimed and that he must therefore have forgotten the circumstances under which he had witnessed the signing of the will.

Although there is a strong presumption in law that a will has been properly executed, the court of first instance and, subsequently, the Court of Appeal considered it very unlikely that the witness would have forgotten witnessing the will if this had taken place with the testator and the other witness present.

The Court of Appeal therefore refused to dismiss the action for revocation of probate and the son was ordered to pay the legal costs involved.