England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(HIS HONOUR JUDGE WEEKS)

		Royal Courts of Justice Strand London, WC2
		1st December 2005

1. LORD JUSTICE NEUBERGER: On 7th March 2005, HHJ Weeks QC, sitting in the Chancery Division of the High Court in London, held that the Will executed on 9th April 1996 by Professor Derek French Channon, who died on 14th July 2003, had not been validly executed and should not be admitted to probate. Mrs Pamela Day, formerly Miss Pamela Ogden, who has lived with Professor Channon from the late 1980s until his death, and was a substantial beneficiary under his Will, appeals against that decision.
2. The basic facts are clearly set out in the judgment of Judge Weeks:

3. Professor Channon was a distinguished Professor of Business Studies. He worked at the Manchester Business College until 1992 when he was appointed Professor of Business Studies at Imperial College in London. In the 1980s, after his marriage broke down, he formed a relationship with Miss Ogden who was working at the Manchester Business School as an administrator. They lived together first in Miss Ogden's house and then in a house at 310 Brooklands Road, Sale which they bought in their joint names as either tenants in common or joint tenants. That was their home until 1996 and although Professor Channon was working in London he returned to Manchester both to stay with his partner in their joint home and to revisit the Manchester Business School.

4. Shortly after the date of the disputed Will, Professor Channon had a serious accident from which he suffered irretrievable brain damage. This occurred in August 1996. Miss Ogden was appointed his receiver under the supervision of the Court of Protection, and she arranged for him to be housed in a nursing home in Eastbourne.

5. His children and his former wife were not, however, satisfied that he was properly looked after, and his former wife went to see him in Eastbourne in 2001 and instructed solicitors. As a result of their intervention Miss Ogden was obliged to step down as receiver in favour of an independent party who replaced her as receiver. There was an abortive attempt for a statutory Will but that never came to fruition, and Professor Channon died in a nursing home in Manchester, to which he had been transferred shortly before his death, on 14 July 2003.

6. On the day after his death the children's solicitor received a copy of the Will in dispute in the present action and appreciated that his clients would receive only a small share of residue, and any interest in the house and at least 50 per cent of the residue would go to Mrs Day, as she now was.

7. He therefore took steps to interview the two attesting witnesses named in Professor Channon's Will, a Mrs Susanna Roth and Miss Leigh Reilly. They told him that they had never witnessed Professor Channon's Will, and as a result of that information the two children of the late Professor issued a Part 8 claim form on 28 August 2003 seeking an order that the court pronounce against the Will and grant them letters of administration.

8. On 14 January 2004 the two attesting witnesses, Mrs Roth and Miss Reilly, were examined orally before Master Moncaster under Section 122 of the Supreme Court Act 1981, which enables the evidence of people who have knowledge of a Will to be taken in advance of probate. I have seen the transcript of their evidence, but at present it is sufficient to say they maintained their evidence that they had not knowingly witnessed Professor Channon's Will, they had never seen him sign a Will and they were not in a room together with him on 9 April 1996 when the Will purports to be signed.

...

10. I must now go back to 1996 and set out the events that led up to the 9 April 1996. On 8 December 1995 the solicitor who acted for Professor Channon in his divorce, a Mr Mainman (a partner in a Manchester firm) made an attendance note. It is not clear whether the source of the attendance, however, was Professor Channon himself or Miss Ogden. The attendance note reads:

'Professor Channon wants a Will, as does Pamela Ogden, his long-standing girlfriend. There is some debate as to whether or not they have a Will. I know he gave us instructions for one an awfully long time ago but we can't find one and he is not 100% sure he has signed one.

In any event we are going to start again. 310 Brooklands Road Sale is jointly owned by Professor Channon and Pamela Ogden. It was purchased 6/7 years ago but I can't remember whether they purchased it into joint names or into tenants in common. The conveyancing transaction would have been dealt with by Leslie Walker at probably Laceys, Manchester, now Lace Mawer.

Professor Channon wants his estate dealt with as follows:

1. The house is to go to Pamela in the event of his death. That will happen automatically, depending on how they actually own it. In addition, Pamela gets 50% of his estate. The remaining 50% split, 10% each to each of his 2 children and the remainder goes to Guide Dogs for the Blind.

2. Pamela Ogden wants the same thing as far as the house is concerned and all her possessions will go to Professor Channon if he survives her but, if he doesn't survive her, all her possessions are to go to the Peoples' Dispensary for Sick Animals.'

11. Mr Mainman did not handle the matter himself. However, Mrs Day said in evidence that he was continually coming out to their house in Sale with documents for Professor Channon to sign or give him advice. He passed this matter on to his articled clerk, a Miss K Stoker, who, according to the file, spent 90 minutes on 19 December 1995 drafting the Wills and researching the matter.

12. On 2 January 1996 she wrote to Professor Channon at Brooklands Road:

'Re: Wills

Mr Mainman has asked me to look into the matter of drafting your Will and the Will of Pamela Ogden. I enclose for your consideration provisional drafts of these documents which are outlines of your original instructions. There are however one or two things I would like to draw to your attention and once I receive your further instructions I will finalise the documents accordingly.'

13. There is a list of five queries on the Will. Those queries were not formally answered, as far as one can see, by Professor Channon. What happened was that on 2 February 1996 Miss Ogden wrote back to Miss Stoker, saying:

'Please find attached the draft Wills returned for myself and Professor Channon. Also enclosed are the authorisations for you to proceed to see how the property is held.'

14. It would appear that the drafts returned bore Professor Channon's signature in one case and Miss Ogden's signature in the other case, possibly with an additional signature as well. Authorisations signed by Miss Ogden and Professor Channon were also enclosed to make further enquiries from the bank.

15. Miss Stoker replied on 5 February:

'Dear Miss Ogden

Re: Wills

I thank you for your letter dated 2nd February.

1996.

I am arranging for the authorisations to be sent to Barclays Bank and thereafter we can arrange.

for the Wills to be completed.

On reading through the amendments you have made.

to the Will I would just like to enquire upon.

you …'

Then there were three matters of query, one of which was the full names and addresses of Professor Channon's children.

16. It would seem that that information was not supplied to Miss Stoker, but she wrote again on 25 March 1996:

'Thank you for the return of the amended Wills and the duly executed authority to release form. It has now been confirmed to me by Barclays Bank that Professor Channon and yourself hold the property as joint tenants. This means that in the event of the death of one you the house, 310 Brooklands Road will pass automatically to the other. I have reinforced this in paragraph 3 of the Will. It is important for you both to sign the document in the presence of two witnesses. Please note that the witnesses must be independent, anyone who is to take a gift under the Will cannot be a witness and you cannot witness for each other. Furthermore, the witnesses should provide details of their address. The rules on attestation of Wills are very strict and if you do not comply there is a danger that your Wills will be invalid. I appreciate that this is not your intention and I trust you will endeavour to carry out the signing in accordance with the law.

Once you have approved the document and arrange for the necessary signatures I look forward to receiving the same by return, thereafter we can hold the documents for safekeeping.'

17. The Wills were not returned to the firm of Mainman and Haywood as requested but were retained by either Professor Channon or Miss Ogden, as she then was.

18. Professor Channon's Will is a document of four pages. There is a front page which simply states 'The Will of Derek French Channon' in capital letters, the first page repeats 'The Will of Derek French Channon' and gives his address. Clause 1 is a revocation clause. Clause 2 appoints the partners in Mainman and Haywood to be his executors. Clause 3 gives the Professor's interest in 310 Brooklands Road to Miss Ogden. Clause 4 is a direction that the trustees should hold the residuary estate upon trust for sale and the usual administrative trusts and then to pay 50 per cent of the residue to Miss Ogden if she survives by 30 days. In clause 4.2 the trustees are directed to pay 10 per cent in type (5 per cent in manuscript above) of the estate to each of his children. Then the solicitors have written in pencil 'name' and in pen are the words, 'Michael James Channon, White Lodge, Leicester Road, Knutsford' (and Mrs Day's evidence is that is Professor Channon's handwriting). There follows, 'and' typed, 'name' in pencil and then in the hand of the Professor, 'Julia Alexis Channon, care of White Lodge, Leicester Road, Knutsford'. Next there is a provision for substitution and then the balance of residue is given in clause 4.4 to the Guide Dogs for the Blind.

19. On the last page of the Will appear the words, in type, 'In witness whereof I have hereunto set my hand this blank day of blank 199 blank' and the date is filled in in what Mrs Day says (and I have no reason to doubt) was the Professor's hand. Below that is his signature according to Mrs Day but not recognised by either of the attesting witnesses.

20. On the left-hand side of the page is an attestation clause in this form:

'SIGNED by the above named )

DEREK FRENCH CHANNON as his )

last Will in the presence of us )

present at the same time who at his )

request and in his presence and in the )

presence of each other have hereunto )

subscribed our names as witnesses )

21. The two attesting witnesses are L Reilly and S J Roth who both give their addresses below their signatures in their own hand.

22. Miss Ogden's Will bears the same date. It is in the same form as Professor Channon's Will. It has a front page describing it as her Will. On page 1 she revokes all former Wills and testamentary dispositions. She appoints, in clause 2, the partners of Mainman and Hayward to be her executors. In clause 3 she gives the legal and beneficial interest in 310 Brooklands Road Sale to Professor Channon. In clause 4 she gives all the rest of her estate to Professor Channon if he survives but otherwise half to the Manchester Dogs Home and half to the PDSA.

23. On the next page is a charging clause for the executors, an exemption clause for the executors and the words, 'In witness whereof I have hereunto set my hand this blank day of blank 199 blank' and Miss Ogden has filled in the date herself, 9 April 1996, and signed underneath. There is the same attestation clause and the same signatures and addresses of Miss Reilly and Mrs Roth, as in the disputed Will.

24. Miss Reilly and Mrs Roth were both working in the same building of the Manchester Business School as Miss Ogden at the time. Indeed Miss Ogden was Miss Reilly's line manager and they worked in adjoining offices. Mrs Roth was of at least equal status to Miss Ogden and she worked probably on a different floor at the time."

3. As the judge went on to explain the requirements for attestation of a will are to be found in Section 9 of the Wills Act 1837 ("section 9") which provides:

"No will shall be valid unless -

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either -

(i) attests and signs the will; or

(ii) acknowledges his signature

in the presence of the testator (but not necessarily in the presence of any other witness)

but no form of attestation shall be necessary."

4. Despite the fact that Professor Channon's Will of 9th April 1996 ("the Will") appeared, on its face, to have been executed strictly in accordance with the provisions of all four paragraphs of section 9, as appears from the attestation clause and the fact that the two attesting witnesses, Miss Reilly and Mrs Roth, had each signed against the attestation clause and had each written their addresses under their signatures, the judge held that the Will had not been properly executed.
5. The judge's reasons for that conclusion are clearly set out within the judgment and the best way to explain his reasoning is by letting him speak for himself. In paragraphs 33 to 41 of his judgment, the judge said as follows:

"33. The execution by the testator has been sufficiently proved by Mrs Day's own evidence, and the Will on its face complies with the requirements of the statute. I must therefore be influenced by a desire not to frustrate his intention, and I must give due weight to the presumption that omnia rite esse acta and that the Will was properly executed. I must, however, at the end of the day decide whether or not the requirements of the Wills Act have been complied with, bearing in mind the presumption that they have been.

34. In the present case there are only four people who knew what happened on 9 April 1996 when these two Wills purport to have been executed. The testator himself is dead and cannot help. Although the events are not all that long ago and would one have thought been an important milestone in Mrs Day's life, because she was executing her own Will and her partner was executing a Will which would, it was hoped, preserve at least the house for her against any hostile claims from her partner's children (because she was aware that if he died intestate then his children would benefit), remarkably Mrs Day cannot remember the events of that day and can be of no assistance in explaining how these two ladies came to execute these two Wills as witnesses. On the other hand, neither of the two witnesses can explain the circumstances in which their signatures, which they recognise as probably their genuine signatures, occur on what is undoubtedly Professor Channon's Will.

35. What I have to decide first is whether or not that Will was, as required by the Wills Act, signed by Professor Channon in the presence of the two ladies or whether his signature was acknowledged by him in the presence of those two ladies. Both have been quite positive that they did not ever see Professor Channon sign any document or acknowledge his signature, either in their presence alone or in the presence of the other.

36. Mrs Roth said that she would remember witnessing Professor Channon's signature, particularly on a Will, because he was a noted figure in the college, he was a figure of some distinction, he was not a person she would have expected to ask her to attest his Will and she would have told others of the occasion and have remembered it.

37. Miss Reilly is sure that she did not see Professor Channon sign because she took a dislike to him fairly soon after she came to work at the college because he behaved in what she thought was an arrogant way towards her and she decided that he was not a nice man. Again, she is sure that she would have remembered an occasion on which she was asked to and did witness his signature, particularly because she did not like him and would have told others about this occasion. Miss Reilly, again like Mrs Roth, is quite sure that she did not see Professor Channon sign in her presence.

38. Secondly, the requirement of paragraph (d) is that the witness must sign the Will or acknowledge her signature in the presence of the testator. Both, again, are quite sure that they have not signed any document in the presence of Professor Channon. Again that was an occasion which would be well out of the routine of either of their experiences and would have been a matter which both of them would expect to have remembered. I accept their evidence.

39. Therefore, giving full weight to the presumption of due execution, I find that the requirements of section 9 of the Wills Act are not satisfied in the present case.

40. This is not a case, like many, where the Will was executed many years ago and the witnesses are now elderly and their memory of these events is necessarily blurred. The events in question occurred under nine years ago. The court is often required to make findings on events which are within that time scale and is accustomed to accepting the evidence of the people who were present at the time as reliable. Neither of the witnesses is aged, Mrs Roth is 60 and Miss Reilly is 35. These are events on which, in my judgment, I can accept their evidence that the Will, although it bears their signature, was not duly executed in accordance with section 9 of the Wills Act.

41. I do not think it is necessary for me to speculate as to how the signatures came to be upon that document. There are various possibilities but it is not necessary for me to make any finding on what would be no more than a surmise. The witnesses themselves cannot state how their signatures are there. What they quite sure of and have given repeated evidence of is that they did not see Professor Channon sign or acknowledge his signature and they did not sign in his presence. The acceptance of that evidence is, in my judgment, fatal to the claim for probate, even giving the maximum possible weight to the presumption of due execution."

6. The law in this field has recently been considered and discussed by this court in a case decided some two weeks after Judge Weeks gave his decision, namely Sherrington v Sherrington [2005] EWCA Civ 326. In giving the judgment of the court in that case, Peter Gibson LJ said this:

"40.... the decision of this court in Wright v Sanderson (1884) 9 PD 149… demonstrates … the strength of the presumption of due execution when there is an attestation clause and the testator and witnesses sign. In that case the testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to 'sign this paper' which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor did they see the testator sign. One witness said that she did not know what she was signing; the other said that she did not know what she was doing. Although the trial judge, Sir James Hannen P., did not doubt their honesty, he felt that he could not rely on their evidence to rebut the presumption arising from the regularity of the codicil on its face as regards all the formalities of signature and attestation when no suspicion of fraud arose. This court dismissed an appeal to it, the Earl of Selborne L.C. observing (9 PD at p. 161), 'I do not know how many wills, really

well executed and duly attested, might not be brought into peril if, upon the sort of evidence which we have here, after a lapse of several years, probate were refused.'

41. To similar effect was Lord Penzance in Wright v Rogers (1869) LR 1 PD 678 at p. 682. In this case the survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator. Lord Penzance said at p. 682 that the question was whether the court was able to rely on the witness's memory. He continued:

'The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed.'

42. It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has 'the strongest evidence', in Lord Penzance's words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator's signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness."

7. There is good reason for the requirement that one must have "the strongest evidence" to the effect that a Will has not been executed in accordance with section 9 when, as in this case, it appears from the face of the Will that it has been properly executed in all such respects and where there is no suggestion but that the contents of the Will represented the testator's intention. Where a Will, on its face, has been executed in accordance with the section 9, and where there is no reason to doubt that it represented completely the wishes of the testator, there are two reasons, one practical and one of principle, why the court should be slow, on the basis of extraneous evidence, to hold that the Will was not properly executed.
8. The practical reason is that oral testimony as to the way in which a document was executed many years ago is not likely to be inherently particularly reliable on, one suspects, most occasions. As anyone who has been involved in contested factual disputes will know, people can, entirely honestly and doing their very best, completely misremember or wholly forget facts and events that took place not very long ago, and the longer ago something may have taken place the less accurate their recollection is likely to be. Wills often are executed many years before they come into their own.
9. Furthermore, when one is dealing with the recollection of witnesses to a Will, one is, as my Lord, Mummery LJ, pointed out in argument, often, indeed normally, concerned with the evidence of persons who have no interest in the document that has been executed, and therefore to whom the signing of the Will would not, save in usual circumstances, have been of particular significance.
10. The principled reason for being reluctant to hold that a Will, properly executed on its face, representing the apparent wishes of the testator, should be set aside on extraneous evidence, is that one is thereby declining to implement the wishes of the testator following his death. That would be unfortunate, especially in a case he has taken care to ensure, as far as he can, that his wishes are given effect in a way which complies with the law.
11. In these circumstances, it is not surprising that in relation to Professor Channon's Will, which had a full and valid attestation clause and represented his wishes, there has to be cogent and clear evidence, ie testimony which constitutes "the strongest evidence" before one can justify the conclusion that the judge reached.
12. As explained in paragraph 33 of the judgment in Sherrington, and as was understandably emphasised by Mr Robert Arnfield, who appears on behalf of the respondents, the claimants below, in this case, there is a competing point of principle. While one should be slow to find that a Will, valid on its face and representing the wishes of the testator, is nonetheless ineffective on grounds of failure to comply with section 9, this court, as an appellate court, should be slow to interfere with the findings of fact made by a trial judge, who heard directly relevant oral testimony and who has delivered a clear and reasoned judgment. However, it should be remembered, in the light of the law summarised in paragraphs 40 to 42 in Sherrington, that this is not a case where the judge simply had to carry out the normal exercise of deciding whether certain witnesses were to be believed or not. It was a case where he had to decide whether, in light of the evidence taken as a whole, he could reasonably conclude that there was "the strongest evidence", that the Will has not been legally executed. Allowing for the fact that that expression is somewhat hyperbolic in its terms.
13. In order to explain why I have reached the conclusion that Judge Weeks was wrong in deciding not to admit the Will to probate, it is necessary, albeit as briefly as possible, to go through the evidence which was before him. He had the evidence of four witnesses, but only three of them were relevant.
14. I should begin with the evidence of Mrs Day whose evidence the judge said was of no assistance - see paragraph 34 of his judgment. The first problem is that it seems to me that the judge was wrong to say that Mrs Day:

"can be of no assistance in explaining how these two ladies [namely Mrs Roth and Miss Reilly] came to execute these two Wills..."

15. There was evidence, however, both in Mrs Days witness statement, and when she was cross-examined, as to why Mrs Roth and Miss Reilly were chosen as witnesses. It was because they were friends of Mrs Day and Professor Channon and because they worked in the same building as Mrs Day and (from time to time) Professor Channon.
16. It seems to me that, as an explanation, that is entirely convincing, at least in the absence of any good reason to the contrary. With all due respect to the judge, it cannot be said that Mrs Day's evidence was "of no assistance" on that particular aspect.
17. It is said by Mr Arnfield that that was an unconvincing explanation for two reasons, first of all, Mrs Roth and Miss Reilly challenged the suggestion that they were close friends of Mrs Day and Professor Channon. I think there is nothing in that point. First, it seems to me quite clear that, on her own evidence, Mrs Roth had known Mrs Day for a substantial time, namely 20 years, and they had worked together in the same building over that period. Secondly, Miss Reilly appears to have been there for a shorter, but significant, period. Secondly, the concept of friendship is flexible and it can have different meanings to different people. That point is illustrated by the fact that Mrs Day said that Professor Channon had no friends; accordingly, he might have regarded Mrs Roth as a friend when their relationship was such that she would have regarded him as an acquaintance, or even less than that.
18. Secondly, Mr Arnfield suggested that it was surprising that Mrs Roth and Miss Reilly were asked to act as witnesses when, on Mrs Day's evidence, the solicitors came to Professor Channon in her house with documents, from time to time, in relation to the Will. As my lady, Arden LJ, pointed out, there is nothing in that point because the solicitors could not, of course, have acted as witnesses because there was the usual charging provision in the Will in relation to their functions as executors. In any event, it was not a point that was put to Mrs Day.
19. Additionally, it seems to me that the evidence of Mrs Day, although she could not recollect the precise events at the time that the Will was executed, was of some significance in terms of setting the scene; indeed, it helped to cast light on what one might call the inherent likelihoods. She explained, in some detail in her evidence, that Professor Channon wanted himself and her to execute wills, that she, being rather younger, had not been very keen on this because she regarded it as "morbid" and that eventually solicitors were instructed, and they then had attended, from time to time, with documents on Professor Channon and on Mrs Day. She also said, when cross-examined, that the formalities must have been complied with, that she and Professor Channon were well aware of the formalities, and that Professor Channon would not have done anything which was not in accordance with the law. She also said that she and he would have been careful to do what was appropriate, having been told what to do by the solicitors in order to ensure that her Will and his Will were validly executed.
20. Mrs Day described Professor Channon as a "very precise businessman". She also said:

"to the best of my knowledge and belief, both my Will and Professor Channon's Will were signed in the presence of both witnesses on the day the Wills were dated. The proper method for signing the Will was explained to me verbally and in wriitng so I did know what we were supposed to do to make the Will valid."

21. Although the judge referred to the fact that it was "remarkable" that Mrs Day could not remember the events of the day when the wills were executed, the judge did not, in my view, and contrary to what Mr Arnfield suggested at one time, thereby intend to suggest that Mrs Day was, in effect, a dishonest witness. If the judge had intended to make that finding he would, I am sure, have said so in terms. He merely found it remarkable that Mrs Day could not precisely remember events of the day in question.
22. On the face of it, there may or may not have been remarkable fears. Mrs Day explained how it came about, namely because of the effect of the very serious and permanently disabling accident which Professor Channon suffered a short time after. It seems to me that it can fairly be said that it would ave been only too easy for Mrs Day to have gilded the lily and to say she did remember the perfectly simple events which, on her case, took place on the day the two Wills were executed. I think it is to her discredit that she said she could not remember.
23. So when the judge said he found Mrs Day's evidence of no assistance on one specific point, he was wrong to do so, and, more generally, the picture painted by Mrs Day was of some significance in terms of helping set the scene on the way on which the Will was executed.
24. I turn to the evidence upon which the judge so relied namely, that of Mrs Roth and Miss Reilly. To cite the evidence of Mrs Roth and Miss Reilly can be somewhat dangerous because one either finds oneself quoting the evidence very extensively, or one may be giving a false picture by selective quotations. The matter is somewhat complicated by the fact that Mrs Roth and Miss Reilly gave evidence on two occasions, first before Master Moncaster and, secondly, at the trial before Judge Weeks.
25. The effect of Mrs Roth's initial statement, dated August 2003, was that she had not been:

"requested by Derek French Channon to witness his signature to any document",

but that she acknowledged that:

"the handwriting of my signature and address on the will appears to by my handwriting"

26. Therefore, it appeared that she accepted that she had at least signed the Will. She ended her short statement by saying that she was.

"at a loss to understand or explain how my signature or address appear on the [will]."

27. So far as her oral evidence is concerned, both before the master and before the judge, she was unable to explain how, on her recollection, her signature and her address, both in her own handwriting, appeared on Professor Channon's Will. Her evidence was also, in a sense, inconsistent with the very fact that she acknowledged, namely that her signature was on the Will. She said, for instance, before the judge:

"No, I didn't sign Professor Channon's will."

A little later she said again:

"Professor Channon did not ask me to sign his Will and I did not sign his Will".

Yet, as she acknowledged, she must have done so because her signature is there. She described herself as

"bemused at how it got there".

28. It is also interesting to note that she did not have a very clear recollection about signing Mrs Day's Will either. The question was put to her by Mr Tom Dumont who appeared, as he does before us, for Mrs Day,:

"You have always had a vague memory of signing Pamela Ogden's Will?"

[ie Mrs Day's will], to which she said, "Yes". It is also interesting to note that, when re-examined by Mr Arnfield, Mrs Roth was asked:

"Have you signed other people's Wills in the past?"

to which she said:

"I've probably signed one of my sister's but I can't remember now."

29. So far as Miss Reilly was concerned, she did not provide a statement, but in her oral evidence, she rejected the notion that there was a possibility that her

"signature appears on Professor Channon's Will because Mrs Day put that Will in front of you and asked you to sign it?"

30. Furthermore, she said that she had no recollection of signing any Will in her life; yet she had signed not merely Professor Channon's Will but Mrs Day's Will. When asked:

"When you signed each of these documents, Professor Channon's Will and Pam Ogden's Will"

She replied:

"I haven't signed them, even though my signature's on them."

31. It is also noteworthy that Mrs Roth acceded fairly readily to the proposition that she:

"would not sign a document unless [she] knew why [she] was being asked to sign it."

As I have said, Miss Reilly similarly rejected the notion that she would have signed Professor Channon's Will merely because Mrs Day had put that Will in front of her and asked her to sign it.

32. This is not a case of fraud, or even a case where there was a motive for not complying with the provisions of section 9. This is not a case where there is any sort of positive recollection of some specific failure to comply with section 9. It is a case where neither witness recalls, more than nine years after the Will (if one takes the date of the trial) or seven years after the Will (if one takes the date of Professor Channon's death) signing the Will. There was no fraud or motive for fraud because, as I mentioned, Professor Channon intended to make a Will in the very terms in which he executed the Will. Indeed, as Judge Weeks explained, he made some manuscript amendments in relation to the proportion of his estate which he was leaving to his two children, and to the names of his children. There can therefore be no suggestion of Mrs Day seeking to defraud or take unfair advantage of Professor Channon. Also Mrs Day (like Professor Channon himself) knew that the Will, in order to be effective, had to be witnessed and executed in accordance with section 9. Given that Mrs Day knew she was a substantial beneficiary under the Will, far from her having a motive for having a Will not executed strictly in accordance with section 9, her motive was very much the other way, namely to do everything to ensure that the Will was properly executed.
33. Of course that does not automatically establish that the Will was properly executed, however, given that there had been allegations or suggestions that Mrs Day was not telling the truth, I think it is worth pointing out that fact.
34. So far as the witnesses to the Will are concerned, this is not a case where either witness can say that she positively recalls signing the Will, and that the other witness to the Will was not present, or the testator's signature was not on the Will at the time. If the Will appeared to be regularly executed on the face one would very critically and closely examine such evidence because of the concerns expressed in the cases cited in the passage I have quoted from in Sherrington. Such a case could turn out to be the type of case that the court had in mind at the end of the passage quoted from Wright v Rogers in paragraph 41 of Sherrington.
35. However, this is not such a case. In the end, as my Lord, Mummery LJ, pointed out in argument, the evidence of Mrs Roth and Miss Reilly boils down to this, that they cannot remember signing Professor Channon's Will as witnesses. Owing to the passage of time and the fact that it would not have been a particularly important event (although I accept it was an unusual event) for them, that is not surprising. As happens with many witnesses, the fact that they cannot remember an event has tended to harden over time into the notion that the event cannot have happened at all. One perhaps sees that from the relatively neutral stance taken in Mrs Roth's original statement suggesting that she simply could not remember signing the Will, to a firming up, as her evidence is given in court and she is being cross-examined, to the conclusion that she cannot have signed it.
36. Mr Arnfield points out that seven or nine years between signing a Will and giving evidence about it is not a long time, and that the significance of such a lapse of time was a matter for the judge. However, one cannot but help observe that four or five years was thought to be a significantly long time to explain loss of recollection in the judgments in Wright v Sanderson and paragraph 40 of Sherrington. Seven to nine years, in my judgment, represents a significant passage of time.
37. Furthermore, it would have been better in this case if the judge had taken a somewhat more enquiring attitude to the "various possibilities", to which he made reference in the first two sentences of paragraph 41 of his judgment. Those possibilities related to how the signatures of the two witnesses came to be on the Will recording that it was perfectly validly executed, if, as the judge decided, the witnesses' evidence that they had not executed the Will as witnesses was to be acceted. While, as I say it, it would be inappropriate to lay down an inflexible rule, it seems to me that where a judge is faced with a regularly executed will and evidence such as that given by Mrs Day, and what might be said to be evidence of poor recollection rather than anything else, from the witnesses, it would be generally appropriate to enquire as to how this could have happened if one is to pronounce against the Will. For instance, had he concluded that, if his decision was right, Mrs Day was being dishonest, that, I would have thought, would have caused him at least to reconsider the conclusion that he was otherwise minded to reach. Similarly he might have realised, if he analysed matters in more detail, that if his conclusion was right, the remaining possibilities were extraordinarily unlikely, in which case again he might have wished to reconsider the conclusion that he reached.
38. The question we have to ask ourselves is whether, bearing in mind all the evidence before the judge, and bearing in mind the advantage he had of seeing the witnesses, he could properly have concluded that the evidence taken as a whole satisfied the high test required by the law, as summarised in those three paragraphs in Sherrington. With all due respect to the judge in this case, I do not think he could properly have reached that conclusion. It seems to me that if the judge's decision was to stand then the sort of concerns expressed by the Earl of Selborne at 161 in Wright v Sanderson and quoted at the end of paragraph 40 in Sherrington would indeed come to be justified:

"'I do not know how many wills, really well executed and duly attested, might not be brought into peril if, upon the sort of evidence which we have here, after a lapse of several years, probate were refused.'"

39. Finally, it should be emphasised, although I have already mentioned it, that the decision of this court in Sherrington was handed down some two weeks after his decision in this case. It is only fair to the Judge to acknowledge, that it is quite possible that he would have approached the issue in this case rather differently, and that he could well have reached a different conclusion, had he had the advantage of the reasoning and decision in that case.
40. In the event I would allow this appeal.
41. LADY JUSTICE ARDEN: I agree with the judgment of Neuberger LJ. I would like to add some observations of my own as we are differing from the decision of a very experienced Chancery Judge. I start with Sherrington v Sherrington [2005] EWCA Civ 326. In that case this court, of which Neuberger LJ was a member, set out a number of authorities and applied, in particular, the holding of Lord Penzance in Wright v Rogers [1869] LR1 PD 678 at 682. Wright v Rogers was a case where the execution of the will was regular on its face. One of the witnesses was the testator's attorney, and the other the attorney's clerk. After the will was executed, an affidavit was sworn by the attorney confirming the regularity of its execution, to the knowledge of the clerk. After the attorney's death, the clerk said that the will had not been attested in the presence of the deceased. He gave evidence in court to that effect. However Lord Penzance held:

"I think too much has been said about the probability of this story. It is not necessary to assume that the witness came here to deceive the court. The question is whether the court is able to rely upon his memory. He may have mixed up two transactions, for a deed of revocation was executed at the same time as the Will."

42. Then follows the passage quoted in paragraph 41 of Sherrington v Sherrington and already quoted by Neuberger LJ in his judgment in this case. Lord Penzance then cited the case of Croft v Croft (4 SW at Tr.10). Lord Penzance continued:

"Here we have only the evidence of one witness, and we find the signature of the other attached to a full attestation clause. Taking all the circumstances into consideration, I come to the conclusion that the will was well executed, and that I ought not to rely upon a recollection of the witness, seeing that, if he did not himself, in the first instance, affirm the execution of the will, he stood by and assented to his fellow witness making such affirmation."

43. So, in this kind of case, the court is faced with a situation where the execution of the will by the testator together with the attestation of his signature by the witnesses is regular on its face but one or both of the witnesses come to the court later and give evidence that it was not in fact duly executed.
44. Lord Penzance refers to the need for the "strongest evidence" before the court will hold that such a will was not duly executed. I accept that, as Mr Robert Arnfield, for the respondent, submits, the requirement for the strongest evidence does not mean that there could be no other evidence that could be stronger. If that were the meaning of the phrase used by Lord Penzance, there would be no case in which anything less than perfect recollection of execution in accordance of the attestation clause could satisfy section 9 of the Wills Act.
45. So the question of what constitutes the "strongest evidence" for the purposes of this kind of case remains to be explored. As I see it, there is a sliding scale according to which evidence will constitute the strongest evidence in one case but not in another. What constitutes the "strongest evidence" in any particular case will depend on totality of the relevant facts of that case, and the court's evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the hurdle to be crossed to meet the requirement of showing the "strongest evidence", and the stronger that evidence will need to be.
46. Likewise, if the evidence of due attestation is weak, then the burden of displacing the presumption as to due execution may be more easily discharged and the requirement to show the strongest evidence satisfied. Allegations that were not made, or were not pursued, and mere suspicion, have to be put on one side.
47. I turn to another point. In paragraph 41 of his judgment the judge said:

"I do not think it is necessary for me to speculate as to how the signatures came to be upon that document. There are various possibilities but it is not necessary for me to make any finding on what would be no more than a surmise. The witnesses themselves cannot state how their signatures were there. What they are quite sure of and have given repeated evidence of is that they did not see Professor Channon sign or acknowledge his signature and they did not sign in his presence. The acceptance of that evidence is, in my judgment, fatal to the claim for probate, even giving the maximum possible weight to the presumption of due execution."

48. With respect to the judge, it seems to me it will in general be necessary for the court to consider the possible reasons why a witness who signed the attestation clause now avers that it was not signed in the way that the attestation clause states. If the explanation is simply lack of recollection, that on its own may not be sufficient to satisfy the court, but evidence from both witnesses that they were nowhere near the place of execution stated in the attestation clause on the particular date would be likely to carry more weight.
49. In evaluating all the evidence the judge must bear in mind the policy reason identified by Lord Penzance, namely that the court should not, by its decisions in this field, cause "the greatest uncertainty in the proving of wills".
50. It follows that the courts should not be astute to find that the presumption as to the due execution of a will, which is regularly executed and attested on its face, has been discharged. That is not to say that there will not be cases where the presumption is discharged. One such case is given by Lord Penzance where both witnesses swear that the will was not duly executed and there is no evidence the other way. Here, as my Lord has explained in his judgment, there is evidence the other way, in particular the evidence of Mrs Day as to how the witnesses, who witnessed the execution of both her will and that of the testator were chosen and, in addition, the evidence as to the execution, which Mrs Roth recalls, of Mrs Day's will on the same date as that of the testator.
51. For all these reasons I agree with the order that Neuberger LJ proposes, namely that this appeal be allowed.
52. LORD JUSTICE MUMMERY: I agree. Taking together all the written and oral evidence, Mrs Day's as well as that of Miss Roth and Miss Reilly, that evidence was not to use the expression in Sherrington, paragraphs 42 and 43: "the strongest" evidence for displacing a presumption as strong as the presumption of due execution. That is a presumption, as appears from my Lords' judgments, which is based on sound public policy reasons.
53. As for intentions, the deceased clearly intended to die testate and not intestate and the detailed testamentary intentions were clear in the Will that had been drafted by his solicitor. As for the formalities of execution, the deceased left the Will which was, on its face, in due form. That was real evidence of due execution of far greater strength, in my judgment, than the best which Mrs Day, Miss Roth and Miss Reilly could do to recollect distant formalities alleged to have taken place on 9th April 1996 and evidenced in the form of the Will itself.
54. With great respect to the judge, he has not, in my view, correctly applied the presumption of due execution to the evidence that was before him. Not to give effect to that presumption, in these circumstances, would introduce unnecessary and undesirable uncertainty into the proving of wills.
55. LORD JUSTICE MUMMERY: For all the reasons given by my Lord, Neuberger LJ and Arden LJ, and for the reasons I have just given, I would also allow the appeal. Mr Dumont, you are asking us then to pronounce for the Will of Professor Channon, dated 9th April 1996, in solemn form of law. That just leaves costs of the action and of the appeal.

(Submissions on costs follow)

Judgment on costs
56. LORD JUSTICE MUMMERY: For the reasons we have given in our judgment, the appeal is allowed and the court pronounces for the Will of Professor Channon, dated 9th April 1996, in solemn form of law. There will be a grant of letters of administration with the Will annexed to Mrs Day. We will be asking the parties to agree a minute of order, incorporating these matters, and that minute should be signed and submitted to the court as soon as possible. It should also incorporate the rulings that we are now making on costs, having heard submissions from Mr Dumont, for the successful Appellant, Mr Ashfield, for the unsuccessful respondent, and from Mr Howard Smith, who appears for Guide Dogs for the Blind. Mr Smith was limiting his participation in the appeal to having set aside the order for costs made against Guide Dogs for the Blind by the judge in the court below.
57. We have heard arguments as to the costs of the trial and the costs of the appeal. Dealing first with the costs of the trial, Mr Dumont accepts, subject to certain submissions he made about the way in which the proceedings have been conducted by the respondents as claimants in the action, that the proper order is no order as to costs. He pointed out to us certain aspects of the way in which the proceedings had been commenced, and he referred to offers which had been made on his side and on the respondents' side.
58. The suggestion that there should be no order as to costs of the trial was also accepted by Mr Arnfield for the respondents. Mr Smith, for the Guide Dogs for the Blind, sought an order against the respondents for his client's costs. In our judgment the proper order is no order for costs all round. It was a proper order to make in a case where the substance of the proceedings was concerned with due execution and bringing to the court, for their purpose of them giving evidence and having their evidence tested, the witnesses to the Will. There was no challenge to the validity of the Will on any other ground, though there were various suggestions made as to the circumstances in which the Will may not have been properly executed formally.
59. In our view no order as to costs is the proper order effecting all the parties and we do not regard the Guide Dogs for the Blind as being in any different position. Mr Smith submitted that they ought to have their costs against the respondents because the respondents had, in their capacity as claimants, joined them to the proceedings. Once they had been joined then they were entitled to have the costs they incurred. The costs they had incurred mainly arose out of their solicitors instructing the same counsel as represented Mrs Day in the proceedings in the trial.
60. In our judgment, although assuming that Guide Dogs for the Blind were properly joined as parties to the proceedings, there was no necessity for them to participate in the proceedings at all. It was open to them, without any risk, to await the outcome of the contest between Mrs Day and the children of Professor Channon who will be entitled, on intestacy, as to whether or not the Will was duly executed. If it was not, there will be an intestacy and the Guide Dogs for the blind will not get anything, and if it was a validate Will, as contested for by Mrs Day, they will get their share of residue. We see no reason for making any order for costs of the trial in favour of Guide Dogs for the Blind.
61. Then we come to the appeal. Again I think there is no contest between the appellant and the respondents. Mr Dumont asks for his costs of the appeal to be paid for by the respondents and Mr Arnfield said he could not resist that. Mr Smith applied for his costs of the appeal, so far as it related to the only grounds on which he was appealing, which was the order for costs made against his clients by HHJ Weeks. In our judgment he is not entitled to the order he asks for, that his costs of the appeal be paid by the respondents. The position should be reflected on the appeal, as was below, that there was no necessity for him to participate in the appeal. The order for costs that had been made against him had arisen out of his unnecessary participation in the trial.
62. I would also add that there was really another reason for his not participating in the appeal unless and until a decision was made on the question of due execution. If the appeal succeeded, as it had, then there was no necessity for him to advance any arguments about the order for costs made against him, because the effect of the appeal succeeding would be to set aside the orders for costs which have been made by his non-jury Judge Weeks below.
63. For those reasons, so principally that the Guide Dogs for the Blind took an unnecessary part in the litigation below and on this appeal, we think it right to make no order for costs in their favour, either here or below. As regards the other parties, there will be no order for costs at the trial, and as regards the appeal there will be an order that the respondents pay the appellants' costs. There will be a detailed assessment of the costs that have been ordered to be paid.