Can a will be valid if not found?
Guy Platon looks at a recent high court case in which a holistic approach was taken by the judge and witness evidence was king
As probate practitioners, we can sometimes get used to dealing with professionally drafted and validly executed wills but there are grey areas and a very interesting recent High Court case of Cooper and another v Chapman and others  EWHC 1000 (Ch) put this in sharp relief.
After a three-day trial in April 2022, the approved judgment was handed down on 6 May 2022.
The trial focused on the question of whether or not a will was validly executed and also the well-established presumption a will has been revoked where the original will was in the testator’s possession before their death but cannot be found after it.
In reaching his decision, the judge admitted to his ‘holistic’ approach, which it could be said is often a hallmark of a probate or financial provision dispute. This was despite the crucial witness evidence being far from perfect, by the judge’s own reading.
It is generally understood a valid will must be signed in the presence of two attesting witnesses present at the same time and the original will must be available. However, this is not strictly true.
The ‘presumption of revocation’ has to be overcome where the original will is missing and only the copy will can be found. In cases such as these, which are quite common, an application will have to be made for leave to prove a copy will or reconstruction. However, evidence to rebut the presumption of revocation is needed if the will is to be proved.
Overcoming this presumption and therefore proving the testator did not revoke their will can be a mountain to climb if the evidence isn’t sufficiently clear cut. It has been known to lead to frustration for a beneficiary where, for example, a good quality will has been found, but it was not ‘wet inked’ and the evidential hurdle was not otherwise cleared.
This kind of undesirable outcome can be avoided by ensuring your will is professionally drafted and also stored with the will writers or otherwise in a safe, secure and readily identifiable place.
In terms of due execution, section 9 of the Wills Act 1837 is the starting point and was of course cited in Cooper. Section 9 states:
“No will shall be valid unless:
(a) It is in writing and signed by the testator or by some other person in his presence and by his direction; and
(b) It appears that the testator intended by his signature to give effect to the Will; and
(c) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) Each witness either:
(i) Attests and signs the Will; or
(ii) Acknowledges his signature
In the presence of the testator (but not necessarily in the presence of any other witness) but no form of attestation shall be necessary.”
In Cooper, a draft will was found on the deceased’s computer in circumstances where his executed will could not be found. In fact, the only available copy was the digital one which was also unsigned.
He had made a valid will in 2009 which left his estate to his children. In 2014, he unfortunately suffered a ”very sudden and catastrophic decline in his mental health” and suffered from mental ill health for the rest of his life.
His marriage collapsed and he divorced his children’s mother in 2016. He had no direct contact which his children from around February 2015.
He began a relationship with a longtime friend (the first defendant) and she alleged he had made a new will in 2018 which largely benefited her and expressly disinherited his children (the claimants). His new will was – unfortunately (if you are looking at this as a probate practitioner) – a DIY will; he had apparently used a template on his computer. He asked his two friends to witness it. This would turn out to be crucial when the evidential hurdles had to be overcome at trial.
The 2018 will purportedly provided for the revocation of earlier wills. He subsequently died – unexpectedly – in 2019. We therefore had a validly executed original will made in 2009 – which was recognised as such by all parties – and a disputed ‘digital only’ and unsigned will from 2018.
The deceased’s children issued a claim for a probate to be granted on the basis of the 2009 will on the grounds there was no evidence the deceased had executed the 2018 will. If it was found it had been validly executed, the presumption of revocation should apply on the basis the original could not be found.
The deceased’s partner/first defendant sought to prove (or propound) the 2018 will on the basis it was a valid will which satisfied the requirements of section 9 (above) and further that the ‘presumption of revocation’ could be overcome because:
1. The will was only made shortly before the testator died and there had been no material change in circumstances in the interim; and
2. The revocation of the 2018 will would benefit the claimants (his children), at the expense of the first defendant and this is not what he would have wanted.
These were not hugely compelling arguments on the face of it. The 2018 will being digital only allowed for a side issue in that the computer it was found on was “not in the same state it was when the Testator had died”. This was overcome relatively easy as computer experts were instructed to investigate and they found the 2018 will had not been modified with reference to the dates contained in the metadata.
Ultimately, this proved to be a peripheral point, despite the use of expert witnesses, but for someone who had never heard of ‘metadata’ until a few years ago it certainly places the case in the present day.
As I mentioned, at trial, the two ‘attesting’ witnesses gave credible evidence of their involvement and described how the deceased had signed the 2018 will before they arrived at his house but he gestured towards the will in their presence and stood by when they attested it.
This was held to have satisfied the requirement (as set out in section 9(c) above) he ‘acknowledged’ his own signature. As one can imagine, this is a requirement that is very easy to fall short of, but there are authorities to suggest even small gestures, such as a head nod, can be sufficient.
This witness evidence appears to have been very weighty and perhaps decisive. The judge believed they were telling the truth and this appeared to overcome the oral testimony apparently departing from their statements, all too often a fatal blow in a case’s presentation. The holistic or ‘evidence in the round’ approach was taken by the judge’s own admission in a trial where witness (and not documentary) evidence was king.
The presumption of revocation was then considered and it was held this had been overcome, perhaps surprisingly given some of the circumstances. The judge was satisfied there had been no change in the deceased’s circumstances between the making of the will and his death, the deceased had a continuing wish to make financial provision for his partner and an absence of evidence there was any change in the deceased’s view of his children (who he felt had already benefitted satisfactorily from his divorce from their mother).
The digital will was therefore found to have been duly executed despite the signed original being lost.
The apparent ease by which the presumption of revocation was overcome in this case was quite striking. However, the judge’s holistic approach to the evidence, the apparent momentum from his finding the digital will had been duly executed and the civil standard of proof allowing for some degree of uncertainty all suggest the result is not unsurprising in hindsight.
Guy Platon is a solicitor at Nicholson Jones Sutton Solicitors njslaw.co.uk