When a will has been lost it is necessary to establish whether a testator destroyed it with the intention of revoking it before it can be entered into probate. In the recent case of Cooper V Chapman & Others  the court had to consider whether a 2018 will which had been lost had been validly executed and if so, if it had been revoked.
Dr Steven Cooper (“Steven”) died suddenly on 20 July 2019. He was survived by his two minor children, Lauren and Jessica, his former wife, Sara and his girlfriend, Karen with whom he had been in a relationship since April 2015.
In 2014 Steven suffered a very sudden and catastrophic decline in his mental health and was admitted to hospital as a psychiatric patient. He was discharged from hospital in January 2015 but continued to suffer mental ill-health for the rest of his life. He commenced divorce proceedings shortly after he was discharged from hospital and a decree absolute was granted in June 2016. He had no direct contact with his children following the divorce proceedings and in November 2017 the family court made an order barring him from having any direct or indirect contact with them. In August 2018 he retired from his job as a chemistry teacher on the grounds of ill-health.
On 4 June 2009 Steven made a will. By that will, he appointed Judith Edwards and Anne Hatton as his executrices and left the entire estate to his children, contingent on them reaching 21 years old – at the time of the trial they were 16 and 14 years of age.
Between 2017 and 2019 Steven took steps to nominate Karen as a beneficiary of the death benefit payable under his occupational pension. He started to complete the online nomination form in July 2017, although did not submit the same at this stage. He did so again in April 2018 but also did not submit the form. On each occasion, however, he saved the completed nomination form and on 17 February 2019 he opened the form once again and this time he submitted it. Only Karen was named as a beneficiary of the death benefit.
On 27 March 2018 or thereabouts, Steven made another will, which had since been lost.
The 2018 will
The 2018 will was a homemade document. It was entitled “Last Will and Testemant” (sic). It appointed Karen as Steven’s executrix, gave a pecuniary legacy of £1,000.00 to Bolton School (the school where Steven had taught) and left his residuary estate to Karen and if that gift failed to the “Royal Manchester Childrens’ Hopsital” (sic) (the hospital which had cared for Lauren when she was born). The document made no provision for the children recording instead:
“I am fully aware that I have given nothing to my two estranged children … and do not wish them to receive anything from my estate. They were fully provided for during the financial settlement of my divorce from their mother and I made that arrangement with this in mind.”
Finally, the document also recorded “I wish my body to be disposed of either by buriel (sic) or cremation, at the discretion of my executor.”.
Karen claimed that the will had been signed by Steven on about 27 March 2018, that he intended by his signature to give effect to the document as his will and that his signature had been acknowledged by Dorothy and James Hartley who were present at the same time and who then attested and signed the document in Steven’s presence. Accordingly, Karen contended that the 2018 will satisfied the requirements of Section 9 of the Wills Act 1837 (“the Act”).
Although the original of the 2018 will had been lost, Karen claimed that she had found a copy of it on a computer used by Steven. Karen accepted that as the original will had been lost she must establish that Steven did not destroy it with the intention of revoking it.
The children disputed the validity of the 2018 will. Accordingly, they issued proceedings seeking to propound the 2009 will. Karen, by way of counterclaim to the children’s claim, sought to propound the 2018 will.
Mr & Mrs Hartley’s evidence
Mr and Mrs Hartley both gave evidence to the court that they had signed a document on or about 27 March 2018. Whilst their evidence slightly differed from each other and indeed, from their written witness statements, the judge rejected the children’s contention that they were not telling the truth when they said they had both signed a document because, said the judge, it was improbable that a witness would perjure himself and even more improbable that two witnesses would perjure themselves in respect of the same evidence. There was no conceivable reason for Mr and Mrs Hartley to give fabricated evidence. They did not benefit in any way from Steven’s estate. The judge considered this conclusion was reinforced by the conclusion he had reached about Mr and Mrs Hartley more generally; namely, that they were genuinely trying to tell the truth and help him.
Karen told the court that she and Steven had an initial discussion about his will in January 2018. Steven had indicated that he was keen to have wills in place for them both. Karen had no desire to make a will herself but Steven drafted a will in Karen’s conservatory and showed her the draft which she said was the same as that executed in March 2018. Prior to execution of the will, she said he arranged to print off a copy and placed it on her dining room table. This, she said, was in readiness for a visit which had been arranged at Steven’s recent birthday party for Mr and Mrs Hartley to attend at Karen’s home. The visit coincided with the day that Steven and Karen were due to go on holiday to Morecombe. Karen said therefore that following the visit and execution of the will, Steven put the executed will on the back seat of their car. When they returned from holiday, Steven then put the will as executed back on the dining room table but a couple of days later, the will getting in the way on the table, Karen arranged to place it in a basket in which Steven kept some of his belongings. Karen told Steven what she had done. She and Steven did not discuss the will again. Following Steven’s death Karen discovered that the will was not in the basket.
The court was further assisted by expert witnesses. They did not give oral evidence but had provided written confirmation that they were agreed as regards the following matters:
The draft of the 2018 will was created on 24 January 2018;
The draft of the 2018 will was last modified and saved on 20 March 2018; and
The draft of the 2018 will was copied to the hard drive of the computer on 4 February 2019 and had not been modified since then.
Was the 2018 will a valid will?
Having considered all the evidence, the judge concluded that it was probable Steven decided to make no testamentary provision for the children because he had grown estranged from them and wrongly thought that provision had been made for them in his divorce proceedings and because he wanted to make significant testamentary provision for Karen.
In reaching his decision, the judge stated that he had taken into account that by 2018 Steven had had no direct contact with the children for three years and only limited indirect contact with them for a shorter period of time. By 2018 he had been barred from all contact with them. He knew that they had some financial security as a result of a compensation award that Sara had been awarded in December 2014 and believed, albeit wrongly, that they were the beneficiaries of his life insurance policy and so provided for in his divorce.
In all the circumstances, the judge concluded that the document which Mr and Mrs Hartley witnessed on 27 March 2018 (and a copy of which Karen found on the computer following Steven’s death) was the 2018 will and that it had been signed by Steven. The judge further held that the will was a valid testamentary instrument, having been executed in accordance with the provisions of Section 9 of the Act.
Had the 2018 will been revoked?
Whilst accepting that there was force in the children’s counsel’s representations that Steven could have been expected to take care of the 2018 will and it having been lost, the judge should conclude that he had destroyed it with the intention of revoking it, the presumption of revocation by destruction operating in the case, the judge ultimately concluded that he considered it improbable that Steven had destroyed the will with the intention of revoking it. Rather, he said, most probably Steven did not have any intention of revoking the will.
In reaching his decision, the judge commented on Steven’s lifestyle in the last years of his life. The impression the judge formed was that there was a degree of chaos in his life because of his ill-health and because he was spending part of his time at his flat in Bolton and the other part at Karen’s home. This, said the judge, meant it was unlikely Steven would have taken as much care with the 2018 will as many other testators would do with their wills.
The judge noted that the draft of the 2018 will was last saved on 20 March 2018, a few days after his birthday party (so, consistent with him having made a request at the party of Mr and Mrs Hartley to witness his will) and shortly before Mr and Mrs Hartley’s visit. That the draft was opened and saved (and no other document having been identified) led the judge, in part, to conclude that it was probable that it was that document which was on the dining room table at the time of Mr and Mrs Hartley’s visit.
The visit by Mr and Mrs Hartley was only a few days before Steven considered the death benefit nomination form again which was consistent with Steven wishing to make significant post-death provision for Karen, as the 2018 will did. Steven had a continuing wish to make significant financial provision for Karen, such that it was improbable that he intended to revoke the 2018 will otherwise than by making a new will (which he had not done).
Steven had made some lifetime gifts to Karen in the sum of £95,000.00 following the execution of the 2018 will and the children’s counsel argued that these gifts tended to support the conclusion that he had destroyed the 2018 will, having concluded that he had fully benefitted Karen during his lifetime. The judge disagreed. In the absence of any evidence that Steven’s relationship with Karen had deteriorated after March 2018, that his relationship with the children had improved or that he had begun to think of them more favourably than he had done in March 2018, the judge concluded that the making of the gifts tended to support his conclusion that Steven had a continuing wish to make significant financial provision for Karen.
In all the circumstances, the judge concluded that Steven did not destroy the 2018 will with the intention of revoking it.
In light of his conclusions regarding the 2018 will, the judge made an order finding that Steven had executed a will in accordance with the formalities of Section 9 of the Wills Act 1837 on or about 27 March 2018, that the will was in the terms of the draft of the 2018 will in evidence before the court and that in the absence of an executed original of the 2018 will, the same should not be presumed to have been destroyed by Steven with the intention of revoking it.
This was a very sad case. Unfortunately, the order made only dealt with the preliminary issue as to which will should be entered into probate and so it remains to be seen whether further proceedings will now ensue including, in particular, a claim by the children under the Inheritance (Provision for Family and Dependants) Act 1975 that the 2018 will does not make adequate financial provision for them.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.