The High Court recently determined that a draft Will found on a Deceased Person’s computer after his death could be admitted to probate as his last Will in circumstances where the executed Will could not be located.
The Deceased was married between 2003 and 2016 and had two children. He made a Will in 2009 (2009 Will) which left his estate to his wife and in default, to his children.
Following a period of ill-health and hospitalisation in 2014, the Deceased separated from his wife. Their divorce, which was finalised in 2016, made provision for their children.
The Deceased entered into a new relationship and in 2018 decided to make a new Will to benefit his Partner (2018 Will). He drafted a Will using a template on his computer and asked two relatives of his Partner (First Defendant) to witness the making of the same.
Following the sudden death of the Deceased in 2019, the Executors of the 2009 Will sought to administer the estate on the basis of that Will. The First Defendant sought to rely on the terms of the 2018 Will but was unable to find the executed version of it.
The Deceased’s ex-Wife on behalf of their Children (Claimants) brought a claim for a Grant of Probate based on the 2009 Will and argued that there was no reliable evidence that the 2018 Will was ever executed. It was argued in the alternative that, even if the 2018 Will was executed, the fact that it could not be found meant that it should be presumed that the Deceased revoked it.
The Court, therefore, had to determine:
- Whether the 2018 Will was validly executed;
- The contents of the 2018 Will; and
- Whether or not it should be presumed that the 2018 Will was revoked by the Deceased.
The general rule is that in order for a Will to be valid, it must be signed in the presence of two attesting witnesses present at the same time and the original signed Will must be produced after death in order to obtain a Grant of Probate.
However, where an original Will is lost post-death, a copy or draft Will may suffice where the Court is satisfied that (1) the original Will was executed and (2) the loss was not a result of the Will-maker destroying his or her Will with the intention to revoke it.
Section 9 of the Wills Act 1837 states that a Will is valid if the Will-maker ‘acknowledges’ his or her previously executed signature on their Will. However, Section 9 does not define what will and will not constitute an ‘acknowledgment’. Case law suggests that it will all depend on context and even very small gestures may be sufficient.
The Court’s decision
It was found that the 2018 Will was duly executed in the form of the draft on the Deceased’s computer and on the balance of probabilities, it had not been revoked. The First Defendant was therefore entitled to a Grant of Probate on the basis of the 2018 Will.
The 2018 Will was deemed to be validly executed on 27 March 2018. The First Defendant’s two relatives who had witnessed the making of the 2018 Will were deemed to be credible witnesses and able to describe how the Deceased signed the Will prior to their arrival but gestured towards the Will in their presence and stood by whilst they witnessed it. Whilst the Deceased had not signed the Will in the presence of the witnesses, he had acknowledged his signature in their presence which was sufficient to satisfy Section 9 of the Wills Act 1837.
Expert evidence showed that the date of creation and date of last access of the draft 2018 Will saved on the Deceased’s computer was consistent with the date of execution as recalled by the witnesses.
There had been no change in the Deceased’s circumstances between the making of the 2018 Will and his death and so the presumption of revocation was rebutted.
There are two key implications of this case.
Firstly, a hand gesture toward a pre-signed Will without any verbal acknowledgment can satisfy the requirement in Section 9 of the Wills Act 1837.
Secondly, little evidence is required to rebut the presumption that in circumstances where an original executed Will cannot be found, it will be deemed to have been destroyed by the Will-maker with the intention to revoke it.
In this case, the presumption was simply rebutted as a result of an absence of evidence of a change in the Deceased’s circumstances between making the 2018 Will and his death.
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