Quite often, the question as to who should witness the signing of a will is treated as an afterthought, but when a will is contested, the ability to hear the evidence of the witnesses can be crucial.

A recent case where this was in point involved a daughter who believed her mother had died intestate after revoking a will she had made in 1994. When her mother died, in 2004, she applied for letters of administration over the estate.

Shortly afterwards, her mother’s French Canadian niece filed, in Canada, what she claimed was the deceased woman’s will. That will left the entire estate to the niece and was said to have been written when the niece visited her aunt in 2000. It was claimed that the will had been posted to the niece after her return to Canada.

She claimed that she was not present when the will was created. The earlier will had made a number of bequests and the woman was close to her daughter, especially in her latter years, which made the contents of the ‘new will’ all the more surprising.

The woman’s family doubted the authenticity of the later will. Firstly, it was typewritten and no one recalled her having a typewriter. Secondly, there was some doubt as to whether the will was written by someone whose native language was English. Against this, the court did accept that the signature on the will was that of the deceased. The key issue, however, was that the daughter could not recognise the names of the witnesses to the will.

As the mother never left her flat unaided, the presence of the signatures of unknown persons was strange to say the least. The absence of any evidence from them, regarding the circumstances surrounding their witnessing of the will, led the court to the conclusion that the niece had been involved in the preparation of the will, which was not validly executed.

“Had the niece been able to produce the witnesses and their account supported hers, the outcome might well have been different. If you think your will might be challenged, the evidence of the witnesses to it could well be significant. We can advise you on how to ensure that the chances of a successful challenge to your will are minimised.”