Whether a will has been misplaced, destroyed or never properly executed, the absence of the original document can lead to disputes between family members, potential claims under the rules of intestacy and legal battles that may require court intervention. It also gives rise to a crucial legal concept: the presumption of revocation.

In this blog post, Walker Foster probate and inheritance disputes specialist solicitor Guy Platon explains what happens when the original Will is lost, using insights from a recent High Court case to illustrate how such matters are approached in practice.

What happens when the original will is lost: the basics

When someone dies and their original will cannot be located, it can create significant complications for administering the estate. English law requires that, in order to be valid and enforceable, a will must generally be the original, signed and witnessed document. If only a copy exists - or if no version at all is found - the estate may instead be dealt with under the rules of intestacy.

In situations where the original will was known to be in the possession of the deceased but cannot be found after their death, the law assumes that the will was intentionally destroyed and therefore revoked. This is known as the presumption of revocation. However, this presumption is not absolute and can be challenged with sufficient evidence to show that the will was not revoked deliberately.

If the court is persuaded that the will was validly made and was simply lost or destroyed without the testator’s intention to revoke it, then it may admit a copy into probate. However, the burden is on the person relying on the lost will to prove its validity and contents.

Packer v Packer: lessons to be learned from a recent case

The recent case of Packer v Packer, which was heard over a three-day trial at the High Court, offers a good illustration of how the Courts will approach and deal with a case where an original will is missing.

In this case, Stephen Packer died in 2022 and was survived by his wife Debra and his sister Lynn. Unfortunately, a dispute arose between them over whether a purported will from 2022 was valid, despite the original being lost and the only evidence being an unsigned draft which Lynn had located.

Debra’s position was that it was invalid, and therefore the estate should be administered under the intestacy rules. This would give the whole estate to her, as Stephen had no children. On the other hand, if the 2022 will was held valid then Lynn, her partner Clive and her son Giles would all stand to benefit.

Debra stated that she had advised Stephen to make a will but he had refused, saying he didn’t see the point, as the rules of intestacy would provide for her in any event. However, in 2017, Stephen had apparently been persuaded to make a will. Debra asked Lynn to help her, as she didn’t want to upset Stephen, and she helped him prepare a DIY will. Stephen was purported to have taken this copy away to have it signed and witnessed, but there was no evidence he ever did. It provided for Lynn, amongst other things, but neither side sought to prove (‘propound’) this will in the Court.

In early 2022 it emerged that Stephen had a terminal medical condition. At trial, Lynn claimed that she assisted Stephen in making a will in February 2022. She was able to show that she had typed up the document on her computer on February 21st 2022.  Debra’s case was that this will was never validly executed.

Amongst other things, the 2022 will made a gift of the residuary estate to Debra and Lynn in equal shares. Both Debra and Lynn were present when Stephen died on July 5th 2022, but in the following months, Debra gave evidence that she searched through Stephen’s paperwork but could not find any will. Moreover, there was then a passage of correspondence between the two where Lynn made no reference to apparently knowing about a 2022 will.

The Court later held that Lynn’s email to Debra dated August 6th 2022 was the first time she had “made clear that she considered that was a will and that it was with a solicitor”. However, at trial she later said that she didn’t in fact know the latter point.

Lynn finally disclosed a copy of the 2022 will in August 2023, in response to Debra’s Letter of Claim. Lynn stated that the unsigned will had been taken away by Stephen to get independently witnessed.

Debra subsequently issued proceedings in order to propound against the 2017 and 2022 wills, on the basis that neither was executed properly in accordance with section 9 of the Wills Act 1837, as they had not been signed by the Deceased or any witnesses.

What does the law say?

A valid will must satisfy the following requirements, under Section 9 of the Wills Act 1837:

• It is in writing, and signed by the testator or by some other person in his presence and by his direction; and
• It appears that the testator intended by his signature to give effect to the will; and
• The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
• Each witness either- attests and signs the will; or 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.

It is worth noting that a will can generally be revoked in the following ways:

• By making a new will or codicil
• By subsequent marriage or civil partnership
• By destruction

In the case of the original will being lost or untraceable (ie, in circumstances where a signed or unsigned copy is available), and where it can be found that the will was in the testator’s possession but was missing at their death, the presumption of revocation will apply. In the case of Packer v Packer, this useful extract from a previous case was cited, and is a good summation of the presumption:

“The presumption is founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved by a person of ordinary caution in some place of safety, and would not be lost or stolen, and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probably that the deceased himself has purposely destroyed it.”

It would therefore be up to Lynn, as the propounder of the 2022 will, to show to the court that Stephen had not destroyed the 2022 will.

It was acknowledged that in more recent years the Court was perhaps more likely to find in favour of the presumption being rebutted, ie, copy wills were more likely to be held valid. There are other cases to this effect, with perhaps counterintuitive results - where draft wills were merely found on a home PC and nevertheless upheld.

In this case, there was perhaps the additional hurdle as to whether the 2022 will had been correctly executed in the first place, before the question of whether the presumption of revocation could be rebutted was considered.

The decision

The court firstly found that the 2022 will was, on a balance of probabilities, created by Lynn on the instruction of Stephen. A paper copy of the 2022 will had not been found despite extensive searches.

The next relevant question was therefore whether the 2022 will was correctly executed in accordance with Section 9 of the Wills Act 1837. The only evidence of this was in the form of witness statements.

Lynn’s partner, Clive, gave evidence that he saw Stephen sign his will, and further that he witnessed and signed it himself. His son, Giles, gave similar evidence. It was of course significant that these could hardly be said to be independent witnesses, and therefore their evidence could be weighted accordingly.

The court found Lynn’s evidence to be inconsistent, with as many as five iterations of her evidence as the case evolved. On that basis, the Court decided that the 2022 will was probably not validly executed and therefore dismissed Lynn’s case. Debra therefore was allowed to take letters of administration and distribute the estate according to the rules of intestacy.

The court did, however, consider the presumption of revocation point, despite it not being pivotal to its decision (ie, the 2022 will had already failed on the ‘due execution’ issue).

Lynn gave evidence that Stephen had later told her that “it was all sorted and done now”, suggesting that the 2022 will had been signed and witnessed.

The court decided that given the circumstances, including Stephen’s reluctance to engage with making a will, it was more likely than not that he did not sort the matter out, notwithstanding what he told Lynn, and that the draft will was destroyed by him in any event.