In the Estate of Charles Gibson, decd
| Jurisdiction | England & Wales |
| Date | 1949 |
| Year | 1949 |
| Court | Probate, Divorce and Admiralty Division |
Probate - Will - Attestation - Totally blind witness - Want of due execution -
A blind person is incapable of being a witness to a will.
Hudson v. Parker (
PROBATE MOTION.
The court was moved for a grant of probate of the will of the deceased as contained in a copy reconstructed from memory (the original will had been lost) together with two codicils thereto. The will was duly executed in 1925 and the first codicil in 1935. In 1943 the deceased signed the second codicil, the alleged attestation of which is the subject of this report.
The second codicil was signed by the deceased in the presence of one Fred Edward James, then managing clerk to a firm of solicitors, and of his wife. Mr. James was totally blind as a result of an accident which he had suffered in 1942; but he had known the deceased personally since 1932, and he knew him quite well by his voice.
The question was raised whether the second codicil had been duly executed in view of the total blindness of this witnessF1.
Percy Hollins for the applicant.
T. K. Wigan for the beneficiary under the second codicil: The evidence is that the testator and the two witnesses were sitting close together and that the testator was actually touching the blind man. Notwithstanding his blindness, Mr. James knew of his own knowledge of the man that he was next to Mr. Gibson, and he was aware that Mr. Gibson was signing a codicil. But for his blindness he would have seen him do so. The court is not interested in such a case in the narrow question, “Could the witness see?”; for as Sir Herbert Jenner Fust pointed out in Newton and Thomas v. ClarkeF2 “the object of the Act is to prevent the substitution of another paper, and that no fraud should be practised on the deceased.” For this purpose it is more important (as would appear to be recognized in Tribe v. TribeF3) that the testator should see the witnesses sign, and thus ensure that the document which they sign is in fact the document which he intends to put out as his will, than that the witnesses should see the testator sign.
There is no reported case of a blind witness, although there are cases of blind testators — e.g. Re Piercy deceasedF4. Those cases which would appear to be against me, such as Hudson v. ParkerF5 and Re Goods of Gunstan: Blake v. BlakeF6, are acknowledgment cases; and it has never been expressly decided that when it is alleged that the testator has actually signed before two witnesses it is essential that the witnesses should have seen him sign. On the contrary, in Newton and Thomas v. ClarkeF2 the testator was held to have signed his name in the presence of the witnesses although he was in bed with the curtains drawn; both witnesses and testator in that case were aware of what was being done; it is submitted that, although Dr. Lushington in Hudson v. ParkerF5 appeared not to agree with Dr. Fust's judgment in Newton and Thomas v. ClarkeF2, he had misunderstood the point of Dr. Fust's decision and was, moreover, adding a new requirement, namely “in the sight of,” to the Statute.
[PEARCE J. Unless it was considered that those words should be readily inferred and that it was not necessary specifically to include them in the statute.]
If there is any inconsistency between Hudson v. ParkerF5 and Newton and Thomas v. ClarkeF2 it is submitted that the judgment of Dr. Fust in the latter should be followed as a truer view of the objects and meaning of the statute.
(Counsel also referred to Smith and Smith v. SmithF7, Carter v. SeatonF8, Wright v. SandersonF9, Brown v. SkirrowF10.)
PEARCE J. In this case the argument for the validity of the codicil has been put forward with care and ability by Mr. Wigan.
The court is naturally loath to upset the wishes of a testator, but the requirements of the Wills Act, 1837, have to be complied with. I must decide whether this codicil was signed “in the presence of two or more witnesses present at the same time,” and whether such witnesses “attested and subscribed” the codicil.
I am satisfied on the evidence of the female witness that two witnesses, a man and his wife, were in the room with the testator when the codicil was signed, and that both witnesses subscribed it. But the man was blind. He had been blinded eighteen months before, in his middle age. He was not then so clever, therefore, in his remaining faculties as people who have been born blind and who have had many years of affliction in which to train their other senses. His evidence was honest, but he admitted that he relied on presumptions in regard to several...
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