Proving a Will written on food packaging: execution requirements in England and Wales

Mr Chenery sadly died by suicide on 4 May 2021.  

North Yorkshire Police discovered two pieces of cardboard which he had numbered '(1)' and '(2)', one taken from a box of Young's fish fillets, the other from a box of Mr Kipling mince pies.  Mr Chenery had used the two pieces of card to write his Will.  There is a family history of diabetes and he named the 'Diabetic Society' as his principal beneficiary.  He signed one of the pieces of cardboard and, the day before he died, asked two neighbours to witness the signature for him, which they did.  

When subsequently asked, the neighbours only remembered seeing one of the two pieces of card.  Mr Chenery's sister Elizabeth submitted the pieces of cardboard to the Probate Registry.  But the Registry said that, because only one of the two pages had been signed and witnessed, and the witnesses did not remember seeing the second sheet, an application to Court was needed Court to get a grant of the complete Will.  Otherwise only the one page that was signed and witnessed could be admitted (and the gifts on the unsigned page would fail and pass on intestacy). 

The gift to Diabetic Society was on the unsigned page.

With Elizabeth's support, Diabetes UK (the 'parent' charity of Diabetic Society) prepared a claim asking the Court to admit both pages to probate.  Withers contacted Mr Chenery's other family members and ultimately all of the traceable family members agreed that his estate should go to charity as he wished.  As a result, the claim was undefended but it still had to proceed to a trial on written evidence (ie witnesses did not need to be cross examined).

Despite the unusual material which Mr Chenery had used to make the Will, the Wills Act 1837 simply requires a will to be in writing and clearly intended to dispose of property upon his death.  In 1926, the Court found that a testator (albeit a 'mariner or seaman at sea' to whom special rules apply under the Act) had successfully made a Will by writing on an egg.  In a 1988 Australian case, a testator wrote part of his will in pencil on one of the walls of his home and again that was upheld.

The trial centred instead on the question of due execution, and whether it made a difference that the witnesses could not recall seeing both sheets of cardboard at the time they signed.

The charity's case rested on the longstanding principle that, where possible, the court should favour a result where a deceased person is found to have died testate (ie with a will) rather than intestate.  A will can be valid even if it is written on disconnected sheets of paper (or, as here, cardboard), as long as all the disconnected sheets are in the same room and under the testator's control at the time of execution.  Even where sheets are disconnected, the law presumes that all sheets were present unless there is evidence to the contrary.

In Mr Chenery's case, there was no evidence that the second sheet of cardboard was not present at the time of execution.  

At trial, Master McQuail found that Mr Chenery clearly intended the two pages to be his Will, and accepted that there was nothing in the evidence to rebut the presumption that both sheets of cardboard were present at the time of execution.  She therefore ordered both pages should be admitted to probate.  

We await the full judgment but are pleased to have secured a result which allows Mr Chenery's last wishes to be upheld.

Paul Hewitt and Rosalind Russell acted for Diabetes UK, instructing Sam Chandler of 5 Stone Buildings.