The perils of pandemic Wills

The case: Coady v Coady

This case revolved around a dispute concerning the validity of a Will dated 25 April 2020 (the “2020 Will”) of the late Kathleen Bernadette Coady, who passed away on 18 November 2022. The Claimant, Peter Coady (her eldest child), challenged the 2020 Will, asserting that his mother’s previously executed Will from 31 March 2017 was her true last Will. The 2020 Will appointed the Defendant, Gerard Coady (the fourth eldest child), as sole executor and trustee, leaving the residual estate to him. The 2017 Will, in contrast, named Peter Coady as executor, provided legacies to three of the five children (including Gerard), legacies to seven grandchildren, and left the residue to Peter Coady.

The Claimant’s initial grounds for challenging the 2020 Will included lack of testamentary capacity, lack of knowledge and approval, undue influence, and fraud. Subsequently, the Claimant was granted permission to amend the particulars of claim to plead a new ground: a lack of adherence to formalities as per Section 9 of the Wills Act 1837. This preliminary hearing focused solely on whether the 2020 Will was executed in accordance with Section 9.

The conflicting accounts

In the Coady case, there were the conflicting accounts of the 2020 Will’s execution. The Defendant, Gerard Coady, contended that the Will was validly executed. He stated that he was living with and caring for his mother, and that he contacted solicitors to draft the Will. He claimed that on the day of execution, his mother greeted the witnesses, David and Edna Meeson, and thanked them for agreeing to witness the Will. He further stated that he read out the Will execution instruction sheet and the Will itself, and his mother confirmed her understanding.

However, the witnesses, David and Edna Meeson, presented a different narrative. They stated that they were asked by Gerard to witness the Will as an emergency due to Kathleen’s ill health and COVID-19. David Meeson testified that he did not see Kathleen sign the Will, nor did he see anything to suggest she knew a Will was being witnessed. He described Kathleen as looking very ill, much thinner, and appearing half asleep. He was adamant that he and his mother could not see Kathleen when they were signing the documents.

Edna Meeson corroborated her son’s account, stating that Kathleen looked dishevelled, very thin, tired, ill, frail, and feeble. She testified that Kathleen did not speak or make any gesture indicating she knew they were there to witness her Will. Edna Meeson also stated that Gerard rushed them, and she did not properly read or see what she was signing, recalling that some papers were folded or covered. Both David and Edna Meeson denied that Gerard read out the Will or the execution instruction sheet, with Edna Meeson explicitly stating, “he’s a liar” in response to Gerard’s claim.

Further complicating matters was a document dated 18 February 2023, titled “Statement concerning the signing of Mrs Kathleen Coady’s Will dated 25/03/20,” which appeared to be signed by Edna and David Meeson. This document stated that Kathleen was clearly aware they were there to witness her Will, greeted them, and thanked them. However, both witnesses contended the content of this document during cross-examination. David Meeson claimed he could have signed it but the paragraphs above his signature were covered, and his name was misspelled. Edna Meeson stated Gerard brought a document for her to sign, saying he would “fill it in after,” and she never saw the full content, believing he would only confirm they had signed the Will.

Practical implications for contentious probate lawyers

From the perspective of a contentious probate and trust lawyer, the Coady case offers several critical insights:

1. The importance of scrutinising formalities and evidence

This case underscores the Court’s strict approach to compliance with Section 9 of the Wills Act 1837. It highlights the importance of obtaining and carefully reviewing all available evidence surrounding the signing; including witness statements, correspondence, file notes, and any contemporaneous documentation. Understanding the physical layout, who was present, and the sequence of signing can be decisive in determining validity.

2. Assessing witness credibility and the presumption of due execution

The Court’s decision in Coady demonstrates the weight placed on the credibility of independent witnesses. Even where a Will contains a regular attestation clause, the presumption of due execution can be rebutted by convincing, detailed evidence to the contrary. For practitioners, this reinforces the need to evaluate witness evidence critically; considering consistency, demeanour, independence, and any potential conflicts of interest, when building or defending a claim.

3. Evaluating family dynamics and motives

The case also serves as a reminder that challenges to Wills are often deeply rooted in family conflict. Where a beneficiary has been heavily involved in arranging or overseeing the execution, this may raise suspicions about undue influence or lack of knowledge and approval. Consideration needs to be given to the broader relational context; who stood to gain, what roles they played, and how the deceased’s circumstances may have affected their independence.

4. Strategic use of preliminary issue hearings

The preliminary issue hearing in Coady was limited solely to the question of due execution. This can be an effective strategy to narrow the scope of dispute and control costs early in the litigation process. Identifying whether there is a clear, determinative legal issue suitable for preliminary resolution can be key to efficient case management.

Conclusion

The Coady v Coady case serves as a powerful cautionary tale regarding the execution of Wills, particularly in the context of the challenges posed by the COVID-19 pandemic. It highlights that the legal formalities governing the execution of Wills are not mere technicalities but safeguards designed to protect the testator’s true intentions.

In the years following the pandemic, we are increasingly seeing more Wills coming to light that were prepared or executed under difficult circumstances, often without full legal supervision. As a result, it is expected that practitioners will continue to see a rise in disputes concerning Wills made during this period. The case underscores the invaluable role of professional legal advice in ensuring that a person’s final wishes are not only expressed clearly but are also upheld.

If you have concerns about a Will that you or a loved one executed during the pandemic, or if you are dealing with the estate of a loved one who has passed away and have questions about the validity or execution of their Will, please get in touch with Victoria Lea-Holton.