The impossibility of asking a deceased person what their real intentions were makes the value of these being clear before death quite obvious, as a recent case shows.

It involved an elderly widow who died in 2016. After her death, her family discovered an envelope containing a copy of a will dated 2008 and an unsigned draft of the will which her solicitors had prepared for her. The original could not be found, however.  She had added a codicil to the will in 2010 and the original codicil was found in the envelope. At the time the codicil was made, the copy of the will had been endorsed by the firm of solicitors to the effect that it was a true copy of the original will. The codicil replaced one executor with another but made no other change.

The problem was, as the judge hearing the case put it, that ‘if a will was 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’.

Were the will to be revoked, the woman’s estate would be distributed differently between family members, as the rules of intestacy would apply. It was claimed by some family members that she had destroyed the will on purpose, with the intention of revoking it. In practical terms, the main protagonists in the dispute were arguing over the difference between a one-third share in the woman’s estate and a one-quarter share.

The judge commented, "The estate is not large, in money terms the difference in outcome may well be disproportionate to the costs involved but it is a sad fact that, in claims over the division of an estate, like many boundary disputes, the quest for a solution based on commercial pragmatism is not given the weight it may deserve."

After considering the evidence, the judge ruled that the certified copy of the will should stand, there being insufficient evidence that the woman had intentionally destroyed the will to revoke it.

Source: Private Client Library Content