Analysis
The deceased died a widow on 9 January 2016, aged 81. Among her possessions at the time of her death was an envelope containing a copy of a will executed on 11 April 2008 (the will). The envelope also contained an unsigned draft of the will and an invoice from solicitors in respect of its preparation. The original will was absent from the envelope and was never found. The copy had been certified by the solicitors on the same date that a codicil to the will was executed to the effect that it was a true copy of the original. The codicil did not interfere with the devolution of the estate save as to the appointment of executors.
The envelope containing the copy of the will bore a printed statement ‘YOUR ORIGINAL/COPY WILL IS ENCLOSED’. The word ‘ORIGINAL’ was struck through on the envelope so that the impression was that the envelope contained merely a copy.
The will revoked earlier wills and directed that the net estate be held on trust equally for four beneficiaries: the deceased’s three children and her former son-in-law, the defendant. There was a default provision whereby if any of the beneficiaries died before the deceased then the share that they would have inherited would be divided equally by the children of that deceased beneficiary.
The claimant (one of the daughters of the deceased) contended that the will was revoked by destruction by the deceased with the intention of revoking it on a date after 26 February 2016, being the date when the deceased’s other daughter, Debbie (the ex-wife of the defendant), died. A revocation would not, by virtue of s22 of the Wills Act 1837, have resurrected any earlier will, but would give rise to an intestacy under which the defendant’s children would receive one third of the estate, but the defendant would personally receive nothing.
The defendant did not accept that the will was destroyed. His position was that the estate should be administered in accordance with the will, under which he would receive a quarter share, as would his children. His family would, therefore, be entitled to half of the estate.
The claimant gave evidence that, after the death of Debbie, the deceased intended that her estate should be divided equally between her two surviving children and the defendant, and specifically that she did not want her grandchildren to inherit directly. The deceased destroyed the will because it would not have achieved that objective, since one quarter would pass to Debbie’s children. It was accepted that the apparent wishes of the deceased were not achieved by the application of the rules of intestacy either, because the defendant got nothing under those rules, and Debbie’s children inherited directly from their grandmother’s estate.
Held:
- 1) By virtue of s20 of the Wills Act 1837, a will may be revoked by its tearing up by the testator with the intention of revoking it. If a will is last traced to the possession of the testator and is not forthcoming at his death there is, prima facie, a presumption, in the absence of circumstances tending to a contrary conclusion, that the testator destroyed it with the intention to revoke it. The presumption however may be rebutted by evidence which must be ‘clear and satisfactory’. If the presumption arises, it is up to the propounder of the will to establish, on balance, that the presumption has been rebutted. The strength of the presumption depends on the level or degree of security with which the testator had custody of the will during his lifetime. The presumption does not arise in circumstances where it is more likely than not that the will was not in the possession of the testator before his death, but rather was in the possession of a third party such as a solicitor. In such a case then, where the proper execution of the will is not in doubt, the onus of proof is on the party asserting revocation to prove that, on balance, revocation occurred.
- 2) The court was not satisfied that, on balance, the will was in the deceased’s possession from 2015 (when Debbie died) to the date of her death, or from 2010 to the date of her death. The clear implication from the wording on the envelope was that the will was retained by the solicitors at least before 2010. It was otherwise difficult to see why the envelope should specify that the document retained by the deceased was nothing more than a copy. It was only at the time that the codicil was executed that the copy will was certified. This too militated in favour of the original will remaining with the solicitors, or at least not being in the possession of the deceased. If an original document is available, a certified copy becomes superfluous. Having found that the presumption of revocation did not arise, there was insufficient evidence to find that the will had been revoked.
- 3) If the court had found that the will had been in the deceased’s possession, and that thus the presumption of destruction and revocation had applied because the will could not now be found, the court would have found that there was clear and satisfactory evidence to rebut the presumption that the deceased had destroyed the will with the intention to revoke it. It was difficult to believe that even a layperson would believe that her ex-son-in-law would inherit on intestacy. It would also be odd to tear up the original will, yet leave a certified copy completely intact.
- 4) Even if the will had been in the possession of the deceased and the presumption arose that she had destroyed it with the intention of revoking it, and even if that presumption was not rebutted, the court would have found that there was a conditional revocation. A will is not revoked if it is destroyed on the basis of any assumption of fact which proves to be false, where the revocation is based on the assumption being correct. The claimant’s clear evidence was that the deceased wanted her estate to be divided between her surviving children and the defendant, and that there should be no bequest to her grandchildren. The court was satisfied, despite the absence of any direct evidence, that, had the deceased revoked the will, she would actually have done so contingent upon the revocation having that effect, and would not have done so had she been aware that it would not have that effect. There was no dispute that the revocation would not have had that effect. The revocation would, therefore, have been inoperative.
- 5) The court proposed to propound in favour of the certified copy of the will.
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