I have an estate where the deceased only signed the initial draft of their Will. The Will contains an attestation clause, is dated and appears to have be been validly witnessed. The Will itself has a “draft” watermark across it.
The signature of the testator is clear but itself is in very basic handwriting.
Each of the attesting witnesses have predeceased the testator. The Will file from the firm that prepared the Will is no longer available and it seems as though the Testator never returned to the firm to sign his Will. There is no previous Will.
The signed Will leaves the estate to some family members but not all of those family members who would otherwise be entitled on intestacy.
I think all I can do in the circumstances is submit the application and see what additional information the Registry eventually request. Do forum members agree or do any of you think there is an alternative way of dealing?
An affidavit of due execution seems the only solution here. Despite the two witnesses being dead, it is possible for any other person who was present at the execution to give affidavit evidence (rule 12(1) NCPR). If no such affidavit can be obtained, the district judge or registrar may accept an affidavit from some person which establishes any other matter raising a presumption in favour of due execution (rule 12(2) NCPR). Rule 12(3) goes on to state that the will may be admitted to proof even if no evidence is available if the registrar is satisfied the distribution of the estate is not affected by admission of the will to proof. This usually covers where the people who inherit on an intestacy are the same as those under the will, which is not your situation. However, WM&S states a will is usually admitted to proof on the filing of an affidavit identifying the persons who would be prejudiced by admission and exhibiting their consent. According to WM&S, it is now common practice to accept the consents, even if there is no affidavit, provided a suitable footnote is added to the oath.
I’m not sure an affidavit is necessary given OP says the document has been signed and witnessed.
Having had something similar - the client signed an unengrossed codicil with a big red “COPY” stamp on the front (having earlier lost the nicely bound version before signing) - we just explained in the covering letter that yes, this was the original and the only executed version of the document.
This was 6-7 years ago but it passed without quibble. There was no actual doubt that the documents were valid documents and had been signed properly - it was just an oddity and we wanted to avoid queries. It sounds like yours is the same.
NB Past performance is never a guide to future performance, particular with the probate registry.
I think the main difference between your situation and the one described is that signing a copy does not cause the same degree of concern regarding whether the testator had an animus testandi: if someone signs a draft will, in my view, it is unclear whether their intention is to create a testamentary disposition. In that situation, I think an affidavit of due execution which gives evidence regarding testamentary intent is appropriate.
I attended a CPD event run by two Contentious lawyers quite a few years ago, they advised in such circumstances, as long as executed correctly, it is valid testamentary intention.
There would be nothing to stop an individual grabbing a sheet of paper with a DRAFT watermark and writing out their own Will in pen on it.
Absolutely Karl, as long as it is executed correctly. One of the requirements from s.9 for valid execution is that the signature needs to appear to be intended to give the will effect. A question arises regarding whether a will with the word draft written on every page raises some uncertainty regarding whether the testator did intend to give effect to the will. My view is that he almost certainly did; however, filing an affidavit of due execution adds to that certainty. You never know what the probate registry will make of this will, and, given the possibility they will ask for an affidavit, my view is filing one in advance is prudent.