We often receive instructions from beneficiaries who do not agree with the personal representative’s position that the Deceased died without a Will or that the Will being relied upon is not the most recent version, but the correct Will cannot be found.
Often the beneficiaries base their belief on the existence of the Will from conversations that they have had with the Deceased during the Deceased’s lifetime and the fact that the distribution of the estate that they had been told is very different.
Where a Will that is believed to have been made cannot be found, the law assumes that the Will must have been destroyed (revoked). This presumption of revocation can be rebutted if the Court is satisfied, on the balance of probability, that the Deceased did not destroy their Will with the intent to revoke it.
The following two cases looked at this issue.
Background
Dr Steven Cooper died suddenly in July 2019. He previously divorced his wife of 13 years in 2016 and was in a new relationship with a Ms Chapman.
Dr Cooper had made a Will in 2009 leaving his entire estate to his children and this Will was submitted for probate.
Ms Chapman challenged the validity of the 2009 Will, claiming that Dr Cooper had drafted a Will on his computer in March 2018, which left most of his estate to her, with no provision for his two children who she claimed had been provided for in the financial settlement in his divorce.
However, there was no trace of the 2018 Will being executed. There was a file on the computer which experts agreed was created in January 2018 and subsequently amended in March 2018. This file had been copied to another computer in February 2019 and had not been altered after that time.
Ms Chapman claimed that the file had been printed and signed on 27 March 2018 in the presence of two witnesses whose evidence was relied upon, although the hard copy could not be located.
The judge considered whether the computer document really was the Deceased’s signed Will and concluded, on the balance of probabilities, that it was. It was also found that the Will was not subsequently revoked on the basis that no significant changes had taken place to change the perspective that the Deceased had in 2018.
Jones v Tracey & Ors [2023]
Background
Here it was considered whether, a Will that could not be found should be presumed to have been destroyed with the intention of revoking it.
David Turner executed a Will in February 2013, which benefited his close friend, Sam Jones. The original Will could not be found and Mr Jones applied for the grant of probate on the basis of a copy which he had found amongst the Deceased’s paperwork.
A claim was brought by the Deceased’s sister who would benefit under an intestacy and from whom he had been estranged for many years.
There was no dispute that the 2013 Will had been validly executed, that Mr Turner had the mental capacity to make a Will, and that he had not made a subsequent Will. No evidence was provided as to why Mr Turner might have revoked his Will, apart from his sister suggesting that he was ‘prone’ to doing so when he fell out with beneficiaries.
The judge considered that, although there was evidence that it was likely that the Deceased had destroyed the original Will by accident, because he was highly disorganised and likely to have mixed up the original and copy Wills. In addition, evidence showed that the deceased was estranged from his sister and remained estranged from her. It was found the presumption of revocation was rebutted as the Deceased was likely to have known that, if he died intestate, his sister would benefit and therefore unlikely that he would have intentionally destroyed his Will.
Comment
Each case will be assessed on its merits and the Court will undertake a detailed review of the circumstances of the last Will and the deceased’s intentions, including events in the Deceased’s life.
Both cases show that, whilst there is not always direct evidence that a Will exists and has not been revoked, the nature of the relationship between the Deceased and the main beneficiary and the Deceased and the disappointed beneficiaries is given much weight in reaching a decision.
The circumstances of such claims are rarely the same so can make it difficult to draw any solid conclusions from the findings in these cases, however, they do provide useful examples of how the Court may proceed when a Will is missing.
This article is for information only and does not constitute legal/financial advice. Please contact us for advice tailored to your specific position. Some of the content presented on our website has been generated with the assistance of Artificial Intelligence (AI). We ensure that all AI-generated content meets our high standards for accuracy and relevance.
