Coady v Coady - due execution and presence

Richard Guy, a Partner in the Lifetime Planning team at Ashtons Legal LLP, looks at “due execution” and “presence”, and how Covid-19 affected will making in England and Wales.

What is “lack of due execution” when disputing a will?

When somebody makes a will, there are certain formal requirements to observe for it to be valid, including when it comes to signing and witnessing. These are described in Section 9 of the Wills Act 1837:

(1) 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.

(2) For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made on or after 31 January 2020 and on or before 31 January 2024, "presence" includes presence by means of videoconference or other visual transmission.

If any of the legal requirements stated above in Section 9 of the Wills Act 1837 are believed to have not been met, the will’s validity can be challenged under "lack of due execution".

How did Covid-19 affect making a will in England and Wales?

When the Covid-19 social distancing restrictions came into force, it was difficult for people to meet and sign a will. The case of Coady v Coady [2025] is an example of how the restrictions on “presence” had a very real impact for one family.

Coady v Coady [2025]

The dispute

In this case, a dispute arose about the validity of the will of the late Kathleen Coady, who died on 18 November 2022. She left five adult children and two sons disputed the position of her last will. Her estate had a net value of £191,756.

The Claimant, Peter Coady, asserted that her 2017 will was her true last will. It named him as executor and left legacies to three of her children and her seven grandchildren, with the residue passing to him.

The Defendant, Gerard Coady, supported a later will of 25 April 2020, appointing him as the sole executor and residuary beneficiary.

Various arguments were raised, but the key issue at hearing was whether the 2020 will was invalid due to a lack of adherence to formalities under s9 of the Wills Act 1837.

The evidence

The Judge heard evidence from the witnesses, neighbours mother and son Edna and David Meeson, who both described the physical set-up for the signing; driven by the requirements of the Covid-19 lockdown.

They had come to the deceased’s property through the back gate into the garden. There was a table, without chairs, in the garden around 10ft to 12ft from the open back door with paperwork and pens on the table. Mrs Coady was at the table in the dining room around 6ft to 8ft inside the back door.

They had no recollection of the will being read out or having any conversation with Mrs Coady or any reading out of the solicitor’s instructions. Both said that although she could see them in the garden, when they were at the table signing the documents, she could not see them.

The Defendant, Gerard, said that his mother sat at the dining table facing the back door and he placed a table outside the back door about 8ft to 10ft away. Edna and David both communicated with her, and he read out the will and instructions. He passed the will from his mother to the table and they followed the instructions, signing the will and the instruction sheet.

The verdict

The Judge considered that David and Edna were credible and impressive witnesses. They had given answers independently, so neither of them had heard the other’s evidence in Court.

Gerard’s answers, although clear and calm, did not persuade the Judge. His statement was detailed, but under cross-examination he could not recall simple details from the time. The will was read out by him in Court and the Judge felt it not credible that the supposedly 6-to-7-minute meeting would have been adequate for this. Furthermore, the timing and wording of a later February 2023 document describing these events rendered it not credible.

The Judge accepted David’s evidence that Mrs Coady could not have seen him and his mother sign the documents on the garden table. Both were clear they did not see her sign the will nor see her acknowledge in any way that her will was being witnessed.

The Judge found that the 2020 will had not been executed in accordance with section 9 of the Wills Act 1837, because the signature of the testator was not made or acknowledged by the testator, the late Mrs Coady, in the presence of two or more witnesses present at the same time. The 2020 will was therefore found not to be valid and the Claimant, Peter, was therefore successful.

Summary

The formal requirements of Section 9 of the Wills Act 1837 are essential for the validity of a will, and arrangements made for signing a will should be undertaken carefully.

About the author

Richard Guy is a Partner in the Lifetime Planning team at Ashtons Legal LLP. He is an experienced solicitor and provides bespoke and expert legal advice for clients planning for the future.

He specialises in private client law and has experience acting for a range of clients, from business owners, farmers and high net worth individuals to retirees and the elderly. He advises on a wide variety of matters, including Wills, trusts, inheritance tax and estate planning, powers of attorney, probate & estate administration, including estates with business interests and land or overseas assets.

Find out more

Wills Act 1837 (Legislation)

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Publication date

9 February 2026

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.