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  • Writer's pictureEmma Aslett

The Importance of Preparing and Executing a Will Properly – Smith v Ganning

Updated: Aug 14, 2023

A lady, Alison, allegedly signed her “homemade” Will shortly before her death leaving her estate to her husband, Michael (Ganning). Michael was the sole Executor and beneficiary.

When Alison passed away, her daughter, Laura, was informed that the Will had not been witnessed properly and Alison had signed the Will in the presence of one witness and Michael.

The Will needed to be witnessed by two people independent of the Will. Otherwise, the Will becomes invalid and it would be seen as though Alison had passed away without Will and therefore her estate would pass under the rules of intestacy.

The rules of intestacy should mean that the estate would be distributed between Michael, Laura and Laura’s brother – not solely Michael.

The witnesses were contacted and Laura’s concerns were confirmed.

It came about that one witness saw the Will being signed by Alison and the other said that she saw the Will at a later date and signed the Will in Michael’s kitchen. It also transpired that there was a telephone call recording of Michael admitting to Laura that the witnesses were not together at the time of signing.

When signing a Will, the witnesses and the testator (the person making the Will) must be present at the same time.

HHJ Halliwell gave judgement in Laura’s favour and said:

“I am satisfied that in the overall context of the evidence as a whole, the evidence of Mrs Wilson [witness] and Mss Weaver [witness] on the critical issue of execution is more plausible than the evidence of Mr Ganning.
Mr Gosling [Counsel] reminds me that, in the case of a will duly executed on its face, there is a presumption of due execution. He is right to do so. However, in view of the clear and unambiguous testimony of the two witnesses, Mrs Wilson and Miss Weaver, I am satisfied that the presumption has been successfully rebutted in the present case.”

Therefore, the Will was deemed to have been invalid.

It is so important to prepare a Will properly and sign the same properly too. This shows the implications of not signing the same properly.

Even in the case of a husband and wife, you should not assume that your estate will pass solely to your spouse upon death. This is not necessarily the case and can cause issues at a later date.

Make sure you prepare a Will properly and execute it properly.

Signature of Emma Aslett

0207 183 4595

The information provided in this article is not intended to constitute professional advice and you should take full and comprehensive legal, accountancy or financial advice as appropriate on your individual circumstances by a fully qualified Solicitor, Accountant or Financial Advisor/Mortgage Broker before you embark on any course of action.


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