In CASE you missed it…

Copy Will Admitted to Probate Despite Ongoing Dispute about Revocation

In this new regular feature, we will examine key cases in relation to will writing and other estate planning activities to keep you up to date on recent developments in the law. All cases covered will be recent, relevant, and widely reported. For this first feature we’ll look at Blyth v Sykes [2019] EWCH 54 (Ch).

Blyth v Sykes concerned the admission to probate of a certified copy of a will and the presumption of revocation when an original will is missing at death. While the admission of a copy will in itself is not too unusual, what makes this case stand out is the fact that there was an ongoing dispute as to whether the deceased had actually destroyed the will to revoke it prior to his death.

The deceased, Mrs Agnes Moore, died a widow on 9 January 2016. Found amongst her possession was an envelope that contained a certified copy of her will, executed on 11 April 2008, an unsigned draft of the same will, an original codicil to that will dated 15 October2009, and an invoice from her solicitor who prepared the documents. Note the absence of the original signed will.

The terms of the will appointed one of Mrs Moore’s daughters Gail (the Claimant) and her husband as executors. The estate was split equally between four people; the Claimant, the other daughter Debbie, Debbie’s former husband (the Defendant), and Mrs Moore’s son. Any failed share would pass to the beneficiary’s children.

Mrs Moore and the Defendant had remained close despite his split from her daughter, and in fact the provision for him in the will had been made some 10 years after the split.

Debbie predeceased her mother, so under the terms of the Will the estate would pass 25% to the Claimant, 25% to the son, 25% to the Defendant, and 25% share equally between Debbie’s children.

The claim

The Claimant claimed that the original will had been destroyed by her mother with the intention of revoking it at some point after Debbie’s death. She alleged that the intention was to revoke the will as she didn’t want part of her estate to pass to Debbie’s children. She wanted her estate to pass equally between the Claimant, the son, and the Defendant.

If the will had been revoked this would mean that Mrs Moore’s would be intestate, and her estate would pass in 1/3 shares to the Claimant, the son, and Debbie’s children, making no provision for the Defendant. Clearly this didn’t meet Mrs Moore’s apparent intentions, and His Honour Judge Saffman even pointed out that he found it ‘difficult to believe that even a layperson would believe that her ex son-in-law would inherit on intestacy’.

The Defendant claimed that Mrs Moore had not revoked her will be destruction, and it was simply lost. Therefore, the copy will should be proved, and the estate administered according to its terms.

The law

Section 20 of the Wills Act 1837 deals with revocation of a will:

‘No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.’

Where a will is missing at death but was last known to be in the testator’s possession there is a presumption that the testator destroyed the will with the intention of revoking it. This presumption is rebuttable by ‘clear and satisfactory’ evidence.

So, it mainly became a question of proving that the presumption did not arise in this case. The Judge identified three issues to consider:

1. Whether the presumption of revocation arose on the basis that the will was last in the possession of the deceased.
2. If the presumption did arise, whether there was clear and satisfactory evidence to rebut the presumption.
3. If the presumption did arise and could not be rebutted, then whether the revocation was conditional and whether or not the condition was met. This involves examining Mrs Moore’s beliefs when revoking the will and whether the revocation was dependant on the accuracy of those beliefs.

For the first issue it had to be considered whether it was likely that the will was in the deceased’s possession between 2010, when the codicil was executed, and her death in 2016.

In this case the evidence suggested that the envelope had only ever contained a certified copy of the will, and indeed one of the beneficiaries who would have benefited more under Mrs Moore’s intestacy even gave evidence stating that he had only seen a copy will when invited to look at the envelope in 2015. This evidence was clearly against his own interests, and it is a well-known principle that a witness giving evidence that is against their own interests is more likely to be truthful.

HHJ Saffman ultimately took the view that if the deceased had been given a certified copy of the will then the obvious inference was that the original had remained with the solicitors. He accepted that it is unusual that the original will and an original codicil would be separated, especially when prepared by the same solicitor, but held that the separation of will and codicil may have happened by accident, maybe by accidentally enclosing the original codicil instead of a copy. He was quite critical of the solicitors for failing to keep a record of retaining the original will, or any record of it being taken by the deceased.

Although HHJ Saffman was satisfied that the will had not been revoked and the other two issues therefore fell away, he still considered them in his judgement. For the second point he considered that even if the presumption had arisen there was clear and satisfactory evidence to rebut it. Finally, if the presumption had arisen and there was not evidence to rebut it, he considered that if the deceased had revoked the will she would only have done so if that revocation was conditional upon if having the desired effect of sharing her estate between the Claimant, the son, and the Defendant. She had expressed that she had always wanted the Defendant to take an equal share in her estate.

Points to consider

This is a helpful insight into how the courts deal with the presumption of revocation where a will cannot be found on the testator’s death.

It should also serve as a reminder to will writers of the importance of keeping accurate records when it comes to will storage. If you are offering professional storage you must make sure that you have records of where your client’s wills are and when they were retrieved from storage.

The full judgement can be read here: https://www.bailii.org/ew/cases/EWHC/Ch/2019/54.html