Article by Harry Owen

Recent times have seen an increase in the number of cases where the validity of a Will is challenged.  The reasons for this are varied, ranging from procedural irregularities in making the Will to allegations of undue influence or coercion and the mental capacity of the testator.

The recent High Court case of Mr Peter Coady (Claimant) v Mr Gerard Coady (Defendant), in the estate of Kathleen Bernadette Coady (Deceased), concerned the validity of a Will dated 25 April 2020 of the late Mrs Coady, who passed away on 18 November 2022. The Claimant and Defendant were two of her five children.

Background

During the first Covid-19 lockdown, in April 2020, Kathleen Coady made a Will, appointing her son, Gerard, as sole executor and trustee and leaving the residual estate to him.  Gerard had enlisted the assistance of solicitors in preparing the Will, making arrangements for the Will to be signed at Kathleen Coady’s home.

The 2020 Will superseded her previous Will, which had been made in 2017. The 2017 Will had appointed Kathleen Coady’s eldest son, Peter, as executor, and made provision for three of Kathleen Coady’s children and seven of her grandchildren to receive legacies, with the residual estate being left to Peter.

Peter brought proceedings, challenging the 2020 Will, on the basis that the Will had not been properly signed and witnessed.

During the trial, the witnesses to Kathleen’s Will, gave evidence that they were asked by Gerard to act as witnesses to the signing of the Will as an emergency measure. Neither of the witnesses were close to either Gerard or Kathleen Coady and stated that they had seen little of her in recent times. Having been asked to attend Kathleen Coady’s address to witness the Will being signed, they came to the back garden, where a table had been set up about 10 to 12 feet from the open back door with Kathleen seated inside, six to eight feet from the door.

Gerard gave evidence that once the witnesses had arrived, he had read out the entire Will, confirmed Kathleen understood everything and followed all the necessary protocols regarding signing and witnessing.

Despite this, one of the witnesses expressed concerns regarding the health of Mrs Coady, stating that she looked very ill and half asleep. The other said she was frail, silent and ‘like a zombie’.

The witnesses described the signing as rushed and stated that some of the papers that they had been asked to sign had been folded over or partially covered. Neither witness had seen Kathleen sign the Will and both noted that she did not appear to be aware of their presence and that she did not acknowledge them.

It was further suggested by the witnesses that Kathleen was not seen to sign the Will, and that she had not been able to see either of them sign the Will from where she was positioned.

According to the witnesses, the entire process took just two or three minutes and they were in the garden for less than five minutes in total, before leaving.

During the trial, the Judge required the Will to be read out in full and timed. That process took just under six minutes, which raised questions in respect of Gerard Coady’s evidence that he had read the Will in its entirety, to his mother, while the witnesses were present in the garden.

Ultimately, the Judge ruled that Kathleen Coady did not sign or acknowledge her signature in the presence of both witnesses, and that the witnesses did not attest and sign the Will in her presence. As a result, the Judge declared the 2020 Will invalid because it was not executed in accordance with Section 9 of the Wills Act 1837 even with the temporary extension to legislation.

Temporary changes to legislation

During the pandemic, there had understandably, been a significant increase in the number of people wanting to make and execute their own Wills. In the circumstances at the time, many of these Wills were made at home.

During lockdown, in an effort to accommodate the increase in the number of Wills being made, a temporary amendment to the Wills Act came into force. From September 2020 the amendment allowed Wills in England and Wales, to be witnessed remotely, where previously, witnesses had been required to be physically present.  This allowed compliance with the strict social distancing rules in force at the time, while allowing Wills to be legally witnessed.

This case should serve as a reminder that, even with the temporary relaxation of the rules in relation to witnessing a Will, the courts are not willing to move away from the strict criteria to be adhered to in making a Will.

With growing numbers of challenges to the validity of Wills and especially considering the very large numbers of Wills that were made during the pandemic, it may now be advisable that any Will made during that time be checked to ensure that the legal formalities were complied with.

Sadly, for some, by the time that their Will is checked it really will be too late to rectify any procedural errors.