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Due Regard to the Presumption of Due Execution

The recent England and Wales Court of Appeal decision in Olins v. Walters [2008] EWCA Civ 782 gained some degree of notoriety among British legal observers.  This Mutual Wills case was notable for its clear pronouncement that a constructive trust is impressed on the estate of the first testator to die during the lifetime of the second testator.

Of arguably greater interest was the somewhat remarkable finding of the Judge of first instance ( see [2007] EWHC 3060 (Ch).] on the usually mundane issue of due execution.  One of the witnesses to the Will stated under oath that she was "more than 100 percent sure that she had not witnessed the signature of the deceased on the Will."  Notwithstanding this evidence, the trial judge held that she was honest but mistaken and upheld the Will.

It is not often easy to mess with legal presumptions.  Consider, for instance, the commentary subsequent to the Supreme Court of Canada decision in Pecore v. Pecore which focused on the suggestion that resort to presumptions is made as a "last resort."   While it is tempting to think that the evidence will always rule the day, the trial judge finding in Olins v. Walters (which, curiously, was appealed on the mutual wills issue but not on the finding of due execution) suggests that the presumption of due execution of a Will is particularly entrenched.

David M. Smith