Analysis
This was a probate claim by the testator’s children (minors with their mother, the testator’s ex-wife, as litigation friend). The first defendant (who was the only active defendant) was the testator’s new partner.
The claimants sought to propound a will from 2009. The first defendant sought to propound a will from 2018. The first defendant claimed that the 2018 will had been signed by the testator on 27 March 2018 with the intention of giving effect to it as a will, and that he had acknowledged his signature in the presence of witnesses who attested and signed the document in the testator’s presence. The 2018 will had been lost but the first defendant claimed to have found a draft on a computer the testator had used.
A trial of three preliminary issues was ordered. The issues were:
- (1) whether the testator had executed a will in compliance with s9 Wills Act 1837 on or around 27 March 2018; and if so
- (2) what the will’s contents were; and
- (3) whether, in the absence of an executed original, the 2018 will should be presumed to have been destroyed with the intention of revoking it.
Held (pronouncing for the 2018 will):
The two witnesses to the 2018 will gave evidence which was credible, notwithstanding some differences between their oral evidence and their witness statements and that there was some divergence in their accounts.
The limited documentary evidence also supported the witnesses’ accounts. The meta-data from the draft will showed that it was created in January 2018, which was when the first defendant said that the testator had discussed making wills with her. The draft was last saved on 20 March 2018, a few days after a birthday party at which one of the witnesses recalled being asked to witness it and a few days before it was said to have been executed. The alleged execution was also a few days before the testator had considered nominating the first defendant to receive death benefits from his pension (indicating that he wished to make significant post-death provision for her).
Claims that grammatical and spelling errors and poor record keeping by the testator were out of character were explained by his deteriorated mental health in the last years of his life.
There was force in the point that the testator could have been expected to take care of the 2018 will, which reflects the presumption of revocation by destruction. However on the balance of probabilities, the testator did not intend to revoke the 2018 will. In the last years of his life, there was a degree of chaos in the testator’s life due to his ill health and due to his dividing his time between his flat in Bolton and the first defendant’s home. He was therefore unlikely to have taken as much care of the 2018 will as many other testators do.
The testator also probably had a continuing wish to make significant testamentary provision for the first defendant, so it was improbable that he intended to revoke the 2018 will without making a new will. Nothing happened after March 2018 to change the testator’s perspective, which also supported the conclusion that he did not intend to revoke the 2018 will.
While the testator had intended the 2018 will to be a temporary measure and did not refer to it after March 2018, this did not undermine the conclusion that he did not intend to revoke it. The testator was willing to make the 2018 will alone even though there was no obstacle to the first defendant making her own will. While he might have seen the 2018 will as temporary, it was unlikely that he saw it as conditional on the first defendant making her own will. Rather he is likely to have seen it as a will which was to remain in place until he could have a will professionally drafted.
While the first defendant told the testator that she was upset that he had not made testamentary provision for the claimants, this did not stop him from making no provision for them in the 2018 will and there was no evidence that the first defendant sought to change his mind or that he did change his mind.
JUDGMENT HHJ KLEIN: [1] Dr Steven Cooper died suddenly on 20 July 2019. He is survived by his children, the First and Second Claimants, who are now 16 years old and 14 years old respectively. He is also survived by the Claimants’ litigation friend, their mother (‘Ms Cooper’), who married Dr Cooper on 10 August …Continue reading "Cooper & anr v Chapman & ors [2022] WTLR 895"