Validity of Wills—presumptions
Validity of Wills—presumptions

The following Wills & Probate guidance note provides comprehensive and up to date legal information covering:

  • Validity of Wills—presumptions
  • Presumption as to due execution
  • Presumption as to capacity
  • Presumption as to knowledge and approval
  • Undue influence
  • Forgery and fraud
  • Presumption of intention to revoke—lost Will
  • Fraudulent removal of the Will

If a Will is rational, in regular form and appears to be duly executed, the following presumptions apply:

  1. due execution

  2. capacity

  3. knowledge and approval

Presumption as to due execution

The court will presume due execution if presented with a Will that, on the face of it, appears to be duly executed by applying the principle omnia praesumuntur rite esse acta (all things are presumed to be done in due form). This may be rebutted but strong evidence is required:

'The strongest evidence would be required to show that a will had not been executed in accordance with the Act when it appeared from its face to have been properly executed, and there was no question but that the will represented the testator's intention. The court should be slow on the basis of extraneous evidence to hold that such a will had not been properly executed, since evidence of events that had happened years previously was likely to be unreliable. To do so would be to deprive the testator of giving effect to his wishes, which he had taken care to ensure would be given effect to in a way which complied with the law.'

There will be a strong presumption of due execution where the Will is in regular form. If the form is irregular or unusual, the maxim does not apply