No Line Of Sight: Due Execution And Presence In The Estate Of Kathleen Coady

District Judge Chloë Phillips has given judgment in Coady v Coady PT-2023-BHM-000025 (Business & Property Courts in Birmingham (Probate)), determining as a preliminary issue whether a Covid‑era "garden signing" satisfied s.9 of the Wills Act 1837. The court held that it did not, with the result that the will of 25 April 2020 was invalid.

This is a first‑instance decision of a District Judge and does not establish any binding precedent. But the decision is an interesting one, harking back to the early days of the pandemic when we were all grappling with the logistics of making wills whilst observing social distancing – a point in time when we were worrying about maintaining a distance of 2 metres at all times and disinfecting pens (and candidly in my own household disinfecting the shopping).

The facts

The deceased, Kathleen Bernadette Coady, died on 18 November 2022. The disputed will, dated 25 April 2020, appointed one son (the Defendant, Gerard) as sole executor and left him the residue, accompanied by a memorandum explaining the exclusion of the other children. An earlier will dated 31 March 2017 appointed another son (the Claimant, Peter) as executor, made a series of legacies to children and grandchildren, and left residue to him. The net estate was modest, stated at about £191,756.

Proceedings were issued by Peter in February 2023, initially alleging that the 2020 Will was invalid for lack of testamentary capacity, lack of knowledge and approval and as having been obtained by undue influence and fraud. After various interim skirmishes, the court permitted an amendment of the particulars of claim to introduce a new ground of challenge: want of due execution under s.9 of the Wills Act 1837. A preliminary issue hearing was listed to deal with that issue alone.

Everyone agreed that the ceremony took place with Mrs Coady seated just inside her open back door; the two neighbours, Edna and David Meeson, were outside at a garden table some 8–12 feet away.

Gerard said that his mother had said hello to the witnesses and thanked them for agreeing to witness the Will. He claimed that he read out the solicitor's execution sheet and the Will whilst the Meesons stood outside, and that his mother had acknowledged her understanding of the Will, signed in the witnesses' view, and that the witnesses then signed in her presence.

The Meesons' account was different. They each described a hurried "just in and out" visit, in which the deceased did not speak, gesture or in any way acknowledge their presence. David said that the testatrix "looked drugged up" and Edna described her as being "like a zombie". They maintained that they did not see the testatrix sign; that the testatrix did not acknowledge the will; and she could not see them when they signed at the garden table. They signed where directed, without reading the document, and were reassured by Gerard that when it was safe to do so a solicitor would come out to see the testatrix, explain and read the Will to her and make sure she understood it. But for that reassurance, Edna said that she would not have signed the Will. She also said that if Gerard had read out the solicitor's instructions on execution, she would not have signed.

Interestingly, Gerard's account of the events was tested against the Meesons by having Gerard read the Will out in court whilst being timed; which took 5 minutes 37 seconds. On his case, the garden ceremony had taken around 6 – 7 minutes but had also involved reading the execution sheet, "chat" at the start and end, and referring back to the instruction sheet at each step. Conversely, the Meesons were adamant that they were in the garden for a very short time – around two minutes on David's evidence and less than five minutes on Edna's account.

A further curious feature was a typed 'statement' dated February 2023, which bore the Meesons' signatures and purportedly corroborated Gerard's account of the occasion of execution. It surfaced late (after service of the Meesons' witness statements), misspelt both their names, cited the wrong will date, and carried the printed footer "GEOLOGY FOR BEGINNERS REPORT".

Despite multiple requests, the original version of the February 2023 document was never produced. Gerard said he had drafted it after speaking to a solicitor and kept it in a box with the 2020 Will, but claimed to have forgotten about it or not to think it relevant when asked why he had not disclosed it. Both Meesons denied knowingly endorsing its substance; Edna said she had been told "just sign it and I'll fill it in after" and that she had thought that Gerard would just put in the document that she and David had signed the Will, which was true.

The applicable law

Section 9 of the Wills Act 1837 requires, in summary, that (i) the will is signed by the testator (or at her direction), intending thereby to give it effect; (ii) the signature is made or acknowledged in the presence of two or more witnesses present at the same time; and (iii) each witness attests and signs in the presence of the testator.

For wills made between 31 January 2020 and 31 January 2024 only, "presence" could include video conference; otherwise it means physical presence with line of sight.

The decision

The judge preferred the evidence of Edna and David Meeson. Each gave clear, consistent accounts (and gave evidence whilst the other was out of court). Their description of distances and positioning supported the conclusion that the testatrix could not see them sign and that they did not see her sign or hear any acknowledgment.

By contrast, aspects of Gerard's evidence were implausible when tested, including the likely length of the process which the judge concluded would have taken much longer than even Gerard's estimated 6 – 7 minutes if his account was true.

The February 2023 document undermined the defence. Its odd features, late appearance and Gerard's implausible explanations for non‑disclosure damaged his credibility. The judge accepted Edna's evidence that she would not have signed a document bearing a misspelt name and given the content of the document as disclosed. David accepted he may have signed something "just to get it out of the way", but would not have endorsed the substance if he had read it.

Consequently, the judge concluded that the requirements of s.9 were not met. The testatrix's signature was not made or acknowledged in the presence of two witnesses present together, and the witnesses did not sign in her presence. The 2020 will was therefore invalid.

Learning points for practitioners

• Presumption of due execution: This did not feature in the judgment (no doubt because this was a case where the evidence against due execution was overwhelming) but it is worth remembering that a will regular on its face with a full attestation clause engages a strong presumption that s.9 was complied with (see Wright v Sanderson (1884) 9 PD; applied in Sherrington v Sherrington [2005] EWCA Civ 326 and Channon v Perkins [2005] EWCA Civ 1808) – there are policy reasons for this given that wills are often signed decades before they come into operation, in brief and unmemorable circumstances, and memories fade or witnesses die or cannot be traced. Displacing the presumption requires the "strongest evidence." Coady was a clear case for displacing the presumption: two independent witnesses gave credible, consistent evidence that there was no simultaneous line of sight and no acknowledgment, and the Defendant's narrative was undermined by timing and the highly dubious February 2023 "statement."
• Presence = line of sight, both ways. There are a number of other obvious grounds for challenging this Will based on the accounts given by the witnesses of a disengaged and "zombie-like" testator, but the case is a good illustration of the fact that s.9 can only be flexed so far: "Presence" is visual presence. The testator must sign or acknowledge in the simultaneous presence of both witnesses, and each witness must sign in the testator's presence. Windows/glass can suffice (recall the case of the asthmatic heiress in Casson v Dade (1781) 1 Bro.C.C. 99 who retired to her carriage to execute the will whilst the witnesses stood on the other side of the window; followed in a modern context in Re Clarke (2011) COP 19-9-11) but only if each party could actually see (or had an unobstructed opportunity to see) the relevant act. As Brown v Skirrow [1902] P.3 demonstrates, it is not necessarily sufficient to be in the general vicinity. If you want to read further and take a trip back to Covid times, see my blog post on this subject written in the early days of lockdown here: Will-making and coronavirus: can wills be remotely witnessed?
• Witnesses must intend to attest. In principle, the witness must do more than simply sign: at the time they sign, they must intend by their signature to attest the testator's signature or will. Although, this will usually be presumed.
• Evidential issues. The most interesting part of the judgment to my mind is the testing of the time that the events would have taken if the defendant's account had been true. I was also curious about the geography and found myself wondering if a judge has ever been asked to do a site visit of a will execution venue. Plans and photographs could be a useful tool in a case of this description. In many cases, following the guidance in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560, the court is likely to place significant weight on the contemporaneous documents, including the will itself, in preference to witness recollections many years after the event. Coady is an example of a case where credible witness evidence outweighed the primacy of the contemporaneous documents and where a late-produced document only served to heighten the court's suspicions.
• Remote/video witnessing is over. Just by way of reminder, the temporary "virtual presence" statutory concession applied only to wills made 31 January 2020–31 January 2024 and wills must once again be witnessed in person.
• When to ask for a preliminary issue hearing. The judgment notes that this matter was listed for a one-day preliminary hearing, which proved inadequate and so the matter had to be brought back for another day with judgment then being reserved. Despite the apparently narrow issues, this still generated a 2475 page hearing bundle prepared by the defendant's solicitors, with the unrepresented claimant preparing a further bundle of his own. I can see that in some cases, where there is a particularly compelling case against due execution and a number of additional grounds of challenge, a preliminary issue trial might be a cost effective way of dealing with things (particularly if it can avoid the need for expert capacity evidence). However, in many cases a preliminary issue trial is likely to introduce delay, and where witnesses to execution are also likely to give relevant evidence on other grounds of challenge it is unlikely to be efficient to separate out the issue of due execution.