Walker v Whitwell [1915] UKHL 6 (15 December 1915)

Walker v Whitwell [1915] UKHL 6 (15 December 1915)

A will that lacks the attestation of two subscribing witnesses at the time of the testator's death is invalid under Scottish law; subsequent attestation by a witness after the testator's death cannot cure this defect, as the statutory solemnities are not fulfilled and the Conveyancing (Scotland) Act 1874 does not authorize such rectification.

Citation
[1915] UKHL 6
Parties
Appellant: Walker; Respondent: Whitwell
Jurisdiction
United Kingdom
Judgment Date
15 December 1915
Procedural Posture
Appeal / Final Judgment by House of Lords
Outcome
Appeal allowed; petition refused.
Legal Topics
Testamentary Formalities, Attestation of Wills, Probative Deeds, Solemnities of Execution, Validity of Wills
Succession Law Property Law Trusts and Estates Testamentary Formalities Attestation of Wills Probative Deeds Solemnities of Execution Validity of Wills

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Parties

Walker

Appellant

Whitwell

Respondent

Procedural Posture

Appeal / Final Judgment by House of Lords

Legal Issues

  1. 1 Whether a will can be validated by the attestation of a witness after the death of the testator under Scottish law
  2. 2 Whether the Conveyancing (Scotland) Act 1874 allows for rectification of such a defect

Ratio Decidendi

A will that lacks the attestation of two subscribing witnesses at the time of the testator's death is invalid under Scottish law; subsequent attestation by a witness after the testator's death cannot cure this defect, as the statutory solemnities are not fulfilled and the Conveyancing (Scotland) Act 1874 does not authorize such rectification.

Court Disposition

Appeal allowed; petition refused.

Orders

  • The appeal is allowed.
  • The prayer of the petition is refused.