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The Will That Didn’t Exist

We always impress on clients the importance of making a valid Will. Equally important is to ensure that the original is then stored in a safe place so that when the time comes, the Will can be used to administer your estate. However, the recent case of Cooper v Chapman 2022 EWHC 1000 (heard in the High Court), showed that there can be circumstances where a Will can be admitted to probate even when it is just an unsigned draft on a computer.

The brief facts of the case were that Dr Cooper had two children from a relationship which ended in divorce in 2015. He stopped having any contact with his children later that year and soon afterwards, the Family Court stopped his access to the children. He had made a Will in 2009 in which he left his estate to his two children subject to them reaching the age of 21. Following his death in 2019, his children wanted to prove that Will but his partner, Ms Chapman, with whom he had started a relationship in 2015, counterclaimed that Dr Cooper had drafted a Will for himself on his computer in 2018 which he had printed out, signed and had witnessed by her aunt and uncle, and of which she was the main beneficiary, with no provision for his children. However, no copy of it could be found at this death; just an unsigned draft on his computer.

There were two points of particular interest in this case and which could have made the 2018 Will invalid:

  1. Had the 2018 Will had been signed and witnessed correctly; and
  2. Was there sufficient evidence to indicate that Dr Cooper had revoked the 2018 Will? There is a presumption that if no Will can be found at death (which was last known to be in a testator’s possession), it should be presumed that the testator has destroyed that Will with the intention of revoking it.

S9 of the Wills Act 1837 sets out how a Will must be signed and witnessed to be valid. This is most usually done by the testator signing in the joint presence of two independent witnesses. However, it can be also be signed by the testator who (later) acknowledges their signature to the Will in the joint presence of the two witnesses who then sign or acknowledge themselves. Ms Chapman’s aunt and uncle gave evidence in Court that this is what happened. The judge found them to be credible witnesses and accepted that the Will had been executed correctly.

In respect of the second point, the judge had to consider all the evidence and then decide, on the balance of probabilities (this being a civil case) whether Dr Cooper had destroyed the 2018 Will with the intention of revoking it. The judge concluded that this was unlikely. The facts he took into consideration here were that Dr Cooper’s life had become quite chaotic and so he may not have taken as much care of the original Will as might have been expected; there was every reason to think that he wanted to make provision for Ms Chapman; there was no reason to think that he had begun to think of his children more favourably in the period between the 2018 Will and his death.

While, in this case, it may have been relatively easy to overturn the presumption of revocation where the original Will was lost, that will not always be the case and so it is vitally important to keep your original Will in a safe place and perhaps let your executors know where it is. Also, signing your Will in the joint presence of two independent witnesses is likely to be the best evidence that it was signed correctly.

At Hodge Jones & Allen, our Wills & Probate Team can advise and draft your Will for you and once signed and witnessed, we can store it for you. To speak to one of our experts, call 0330 822 3451 or request a call back online.