The mystery of Malcolm Chenery’s will – Do fish fingers and mince pies go together? Will Validity

For most people making their wills, ensuring it is valid is straightforward. However, disputes can arise where the process was followed incorrectly. There is a body of interesting cases where the Court has been asked to intervene.

A recent case reported in the press involves the late Malcolm Chenery, who died in 2021 leaving a will which gifted his entire estate to charity. The terms of his will were not, perhaps surprisingly, disputed by his family members, given they were written on the inside of an empty packet of frozen fish. When he ran out of space, he continued his will and executed it on an empty box of mince pies.

Although Mr Chenery’s family members did not dispute the terms of the will, the fact it was written across two separate boxes and only the signature on the second box was witnessed caused some doubt at the Probate Registry as to whether this was valid and could be read as a single will. The charity brought High Court proceedings seeking a declaration that Mr Chenery’s will was valid, which was successful.

As the judgment in the matter of Mr Chenery’s estate is not publicly available, there have been varied accounts as to what the issues were in this case. Some commentators, as did I, believed that it centres only around whether the will met the formalities set out in section 9 of the Wills Act 1837.

For a will to be considered valid in England and Wales, section 9 of the Wills Act 1837 provides that the document purporting to be a will must meet the following requirements to be considered binding:

• It must be made in writing
• It must be signed by the testator (the person making the will) by their hand or by someone else at their direction (if they are unable to sign it themselves) and
• in the presence of two independent witnesses who also sign the will by their hands and/or acknowledge their signatures in the presence of the testator.

Other commentators drew comparisons to well-known (but also unreported) cases involving wills written on an eggshell, on a wall, or in a secret code. These cases dealt specifically with the issue on the different ways a will can be made “in writing” in accordance with the Wills Act 1837.

However, the barristers’ chambers involved in the case revealed in a LinkedIn post that the legal issues considered regarding Mr Chenery’s will centred around a case decided almost a century before the enactment of Wills Act 1837.

The barrister reported that whilst the application of the Wills Act 1837 was still crucial in deciding whether the will was valid, the main question before the Court arose from the witnesses only seeing the second ‘page’ of the will when witnessing Mr Chenery’s signature. The Court considered if that impacted on whether both unconnected boxes could be read together as a valid will. The case of Bond v Seawell, reported in 1773, offered the answer. In Bond v Seawell, it was held that even where the witnesses only see the last sheet of a will, the will would be valid. It can be presumed that the rest of the will was in the same room at the same time, if there are no doubts to the contrary.

In Mr Chenery’s case, it was argued that the two ‘pages’ were written in the same pen, indicating that they were made at the same time and contained overlapping subject matter. There could therefore be little doubt that the two ‘pages’ of the will were “in the same room” as each other and could read together as a single will, even though the witnesses only saw the second ‘page’.

The take-away points from Mr Chenery’s will are therefore as follows:

1. If you want to ensure that your will is valid and complies with the Wills Act 1837, it is preferable to instruct a solicitor to draft and witness your will.

A solicitor can not only bind the pages of your will together, but many can hold it for safekeeping so there is very little chance of it being lost. A specialist will-writing solicitor will know the proper process for witnessing it and should prepare a detailed note confirming that the formalities were met if there are any disputes after you pass away.

2. If you are an executor of somebody’s estate and you are uncertain about whether a will is validly executed or complete, seek legal advice from a specialist probate solicitor so you carry out your duties correctly.
3. If you are the beneficiary of a will and are concerned it may not be validly executed, or you have been unfairly left out of a will and you believe that the last will is not validity executed, seek legal advice from specialist contentious probate solicitors so you understand any potential claims you may have.