Where there's a certified copy Will, there's a way? English High Court admits certified copy Will to probate, despite dispute about whether the will-maker had revoked it

In Blyth v Sykes [2019] EWHC 54 (Ch), the English High Court decided that an estate would be administered in accordance with a certified copy of the will-maker's Will.  This was despite the Claimant arguing that the will-maker had deliberately revoked her Will by destroying it.  This case is a useful reminder that Courts insist on clear evidence of revocation of Wills, otherwise they will grant probate even if the original Will cannot be found. We consider this decision further below.

Background

Mrs Agnes Moore died a widow on 9 January 2016. Among her possessions was an envelope from her solicitors containing a certified copy of a will she had executed on 11 April 2008 (the "Will"), an unsigned draft of the Will, the solicitors' invoice for preparing the Will and a codicil to the Will dated 15 October 2010 (the "Codicil"). However, the original Will was absent from the envelope and could not be found.

By the terms of the Will, Mrs Moore appointed one of her daughters (Mrs Gail Blyth, the "Claimant") and the Claimant's husband as her executors and trustees.  Mrs Moore's estate was to be divided equally between four beneficiaries: the Claimant, Mrs Moore's other daughter (Debbie Sykes), Debbie Sykes'  former husband (Leslie Sykes, the "Defendant") and Mrs Moore's son (William Moore). The Will contained a fairly common provision whereby if any of the beneficiaries predeceased Mrs Moore, their share of the estate would be divided equally between that person's children. Mrs Moore's decision to provide for the Defendant in the Will was made almost 10 years after Debbie and Leslie separated.  Despite this, it was not unexpected because she had continued to stay in close contact with her former son-in-law.

Debbie died on 26 February 2015.

The Claimant alleged that Mrs Moore had revoked the Will by destroying it on an unknown date after Debbie's death.  The effect of this would be that Mrs Moore would have died intestate (Mrs Moore's previous wills having been revoked by the Will). The Claimant alleged that Mrs Moore revoked the Will because she did not want any part of her estate to pass to Debbie's children and instead wanted her estate to be divided between the Claimant, William Moore and the Defendant.

However, as noted above if Mrs Moore had revoked the Will, she would have died intestate.  On an application of the intestacy rules, the Claimant, William Moore and Debbie's children would each receive a third of the estate. The Defendant would receive nothing, which would mean the intestacy rules would not have achieved Mrs Moore's alleged rationale behind destroying the Will.

In contrast, the Defendant did not accept that Mrs Moore had revoked the Will by destroying it.  Instead, he said it was merely lost and argued that the estate should be administered in accordance with its terms. Under the Will, the Claimant and William Moore would each receive a quarter of the estate, Debbie Sykes and the Defendant's children would share equally in the third quarter and the Defendant would receive the fourth quarter.

Judgment

The Judge considered the law relating to revocation of a will, in particular section 20 of the Wills Act 1837:

"… No will or codicil, or any part thereof, shall be revoked otherwise than … by another will or codicil executed in manner hereinbefore required or by some writing declaring an intention to revoke the same and executed in the manner in which a will is hereinbefore required to be executed or by 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"

Furthermore, the Judge reiterated the following important principles:

• For a will to be revoked, it must be torn or otherwise destroyed with the intention that, by doing so, the will is revoked;
• A will is not revoked if the will-maker destroys it on the basis of any assumption of fact which later proves false;
• If revocation is conditional upon the revocation having a particular effect, then it is only only effective if the revocation has that effect (Re Southerden's Estate, Adams v Southerden (1925) P 177);
• If a will is last traced to the possession of the will-maker, but cannot be located after this death there is, prima facie, a presumption that the testator destroyed it with the intention to revoke it. However, the presumption does not arise in circumstances where it is more likely than not that the will was not in the possession of the will-maker before his death but rather was in the possession of a third party such as a solicitor.  The presumption can be rebutted by "clear and satisfactory" evidence;
• The revocation of a will does not resurrect any earlier will; and
• A codicil to a will can survive the valid destruction of the will where it makes testamentary dispositions which can stand alone independent of the will.

The Judge identified three issues on the facts of this case: (1) whether a presumption arose in favour of revocation of the Will on the basis that the Will was probably in the possession of Mrs Moore before her death; (2) if the presumption of revocation did arise, whether it could be rebutted on the basis of 'clear and satisfactory' evidence; and (3) if the will had been revoked, whether the revocation was conditional and whether the condition was in fact met.

On the first issue, the Judge had to decide whether he was satisfied, on the balance of probabilities, that the Will was in Mrs Moore's possession sometime between 2010 when she executed the Codicil and the date of her death. If he was not satisfied that the Will had been revoked, the other two issues would fall away.

The Judge considered the obvious inference that, if Mrs Moore was given a copy, then the original had remained with her solicitors. He criticised Mrs Moore's solicitors for having neither any record of retaining the Will nor a record of a receipt from Mrs Moore if she took custody of the Will. The Judge was not satisfied that the Will was in Mrs Moore's possession from 2010 and therefore concluded that the presumption did not arise. The Claimant accepted that in this case, there was insufficient evidence to find that the Will had been revoked. The Judge therefore ruled it was appropriate for the estate to be administered on the terms set out in the certified copy of the Will.

However, the Judge went on to consider the second issue in case his conclusion in relation to the first issue was found to be wrong. On the facts, he considered there was 'clear and satisfactory' evidence to rebut the presumption that the Will had been revoked.  In particular, the Judge considered that it was difficult to believe that Mrs Moore would think that by tearing up the Will her former son-in-law would inherit on intestacy, instead of her grandchildren.

Finally, in the event that the Judge erred in his conclusion on issue one and two, he considered whether the revocation was conditional in the sense considered in Re Southerden and whether that condition was met. The Claimant argued that there is no evidence in support of a construction that the revocation of the Will was specifically conditional on it having the effect that Mrs Moore believed it might. Whilst the Judge accepted there was no direct evidence on this point, he was satisfied on the evidence that, had Mrs Moore revoked the Will, she would have done so only if it had the effect of giving the Defendant 50% of her estate.

Comment

This case serves as a useful reminder of the law on revocation of a will and the circumstances in which the presumption of revocation will arise. Solicitors and their clients should be aware of the narrow circumstances in which a will shall be treated as revoked other than on the making of another will or codicil. Furthermore, this case should serve as a reminder to solicitors of keeping accurate records of the location of their clients' wills.