Proving a homemade handwritten Will

#1

Hello all

On an estate I am dealing with, the deceased made a homemade will which was handwritten by him on hospital paper. The two pages of the Will are loose and not fastened together. The will is also only dated “February 2020”.

What evidence do you think the Probate Registry will need to prove it? I was thinking an affidavit of handwriting (which the executor is willing to do as he knew and worked with the deceased for 50 years and knows his handwriting). Do I need to exhibit the original Will to the affidavit or will a copy suffice?

I know there is space on the PA1P to talk about “any features of the will that you wish to highlight, such as the condition of the will, or if it has been separated, why, who by and when?” but should I get the executor to sign a separate affidavit of plight and condition and finding?

Also, do you think I need to get an affidavit from the witnesses to provide the actual date the Will was signed (provided they recall that of course)?

Any help anyone can give me would be appreciated.

Many thanks,

Natalie Tonkin
Beviss & Beckingsale LLP

#2

I suggest the witnesses provide statements detailing the circumstances when the will was signed, including when it was signed and its condition – that it was on 2 separate pieces of paper - and confirm that they believe the individual sheets are those that were presented to them at the time of their attestation.

I believe their evidence will be more significant than that of the executor, unless they were also present when the will was executed.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

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#3

I’m not sure you need a affidavit of handwriting . I do think you need a affidavit signed by the attesting witnesses as to the circumstances of the signing/witnessing - covering the issue of the two unfastened pages and the date of signing. I am sure there will be a precedent in Tristram and Cootes that will assist you. It’s a shame that you can no longer pick up the phone to the local Probate Registry for guidance in a matter like this.

Sarah Arundel
Taylor Fawcett

#4

I would get an affadavit signed by the attesting witnesses, assuming that the Will was validly executed.

Sue Underwood
Wolsey Probate

#5

I had a similar situation a few months ago. The testator had written her will on two separate pages of paper that were not stapled together. When I sent the application to the Probate Registry
I received an email asking for evidence that the two pages submitted were “those in existence at the execution and that the testator has not removed, added or altered any pages”. (I have quoted from the query.) The will was dated a certain date in August
2017. I rang the surviving Executor, who told me that the testator had met her and her late husband in late August 2017 and handed them a sealed envelope. She told them that it contained her will, of which they were both Executors. They put it in their
safe and did not open it until after the testator had died. I relayed this information to the Probate Registry by email, who accepted it without any further query. I received the Grant a few days later.

Interestingly, the two witnesses had signed above the testator and I had expected to be asked to provide an Affidavit about the execution but this point was not raised at all.

Cliona O’Tuama

Solicitor

#6

Thank you. Yes, it is a shame! Having discussed with the witnesses, they cannot recall the date that the Will was signed. Do you think this will be a problem?

Natalie Tonkin
Beviss & Beckingsale LLP

#7

Unless there is evidence of another Will having been executed in February 2020, I cannot see that the lack of the actual date should prevent the issue of probate. As suggested by Paul, the witnesses should make the appropriate statement possibly in a statement of truth but that they do not recall the exact date in February 2020 when they witnessed the Will.

Patrick Moroney
BWL Solicitors

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#8

I’m going to start by making an assumption that the Estate devolves differently under the handwritten Will than it would under intestacy, as otherwise one could rely upon NCPR 12 (3) to seek that the Will is proved without recourse to affidavit evidence.

Other than that, and without repeating what others have already said, it make be worth calling the relevant Probate Registry to see what they would likely request be provided by requisition should the Will be submitted for proving without any supporting documentary evidence.

Michael Fogg
JMD Law

#9

May I add a further complication. I have a similar situation; handwritten Will in Hebrew, dated according to the Jewish calendar. The testator did not sign the Will and no one witnessed it. Clearly, the Will does not meet the basic requirements of s.9, however, on the other hand, it feels wrong to ignore the testator’s instructions.
Any thoughts on that?

Liora Torn-Hibler
Berlad Graham LLP

#10

Good luck calling the Probate Registry!

Iain Cameron
Acer Legal

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