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The 1778 case of Honora Jenkins's last will and testament is a case in English law dealing with the witnessing of a
testator A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."Gordon Brown, ''Administration of Wills, Trusts, and Estates'', 3d ed. (2003), p. ...
's
will Will may refer to: Common meanings * Will and testament, instructions for the disposition of one's property after death * Will (philosophy), or willpower * Will (sociology) * Will, volition (psychology) * Will, a modal verb - see Shall and will ...
. In this case, the testatrix, Honora Jenkins, visited her solicitors' office to sign her will, but it was later recorded how "being asthmatical and the office very hot, she retired to her carriage to execute the will", which was outside the office window.


Background

English law at that time required that a testator's signature "shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time". Jenkins's maidservant testified to the court that, specifically, "the moment the witnesses were signing the carriage horses reared up, causing the carriage to move into a line of sight with the office window". Thus she believed that, had Jenkins looked up at that moment, she would have been able to see the attestation take place.


''Casson v. Dade''

On the grounds that she had not been in the same room as her witness at the point of signing, the will was challenged in court. However, in the following judgment, ''Casson v. Dade'' of 1781, it was decided that the requirement was specifically that the parties were able to observe each other, and the fact that Jenkins had been able to look in the window of the office from her coach was deemed sufficient to fulfil the requirements of law. The precedent has also been established in US law.


21st century

In 2005, Senior Judge Denzil Lush judged that two parties could be deemed to be observant of each other even though the parties were in separate rooms, on the grounds that a glass door separated them and that this enabled a line of sight between them. The
legal scholar Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the a ...
Catherine Rendell has described the case as an "extreme example" of the line of sight doctrine, being specifically concerned with defining presence "with regard to the testator being present when the witnesses signed, rather than the witnesses being present when the testator signed". The case became of renewed relevance in the legal
Anglosphere The Anglosphere, also known as the Anglo-American world, is a Western-led sphere of influence among the Anglophone countries. The core group of this sphere of influence comprises five developed countries that maintain close social, cultura ...
during the
COVID-19 pandemic The COVID-19 pandemic (also known as the coronavirus pandemic and COVID pandemic), caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), began with an disease outbreak, outbreak of COVID-19 in Wuhan, China, in December ...
following the introduction of lockdown policies. '' MoneyWeek'', for example, wrote that "lockdown makes writing a will almost impossible". Likewise, the ''
Financial Times The ''Financial Times'' (''FT'') is a British daily newspaper printed in broadsheet and also published digitally that focuses on business and economic Current affairs (news format), current affairs. Based in London, the paper is owned by a Jap ...
'' noted that the requirement for the testator to sign in the presence of witnesses "is inconsistent with rigorous self-isolation". Governmental advice was usually for individuals to remain a certain distance apart to restrict the spread of the virus; however, this also had implications for the witnessing of testaments. ''
The New York Times ''The New York Times'' (''NYT'') is an American daily newspaper based in New York City. ''The New York Times'' covers domestic, national, and international news, and publishes opinion pieces, investigative reports, and reviews. As one of ...
'' noted that "England's influential will-making traditions have stood still", and that there was an increasing pressure for the strictures surrounding will-making to be loosened. The 1837 act had been designed, in a time when few were literate, to ensure that witnesses were available to prevent the defrauding of testators. The rediscovery, however, of Jenkins's case enabled individuals to witness wills without the concomitant proximity of attending a legal office: as a result of her case, said ''The New York Times'', it was confirmed that "witnessing a will through a window was legal", although the ''Financial Times'' urged caution upon those who did: "relying on a precedent that pre-dates the French Revolution would potentially make wills signed and witnessed in this way open to challenge".


Note


References

{{reflist English case law Wills and trusts in the United Kingdom