Packer v. Packer: A Legal Dispute Over Missing Wills

The case of Packer v. Packer has shed light on the complexities surrounding the validity of missing wills and the administration of estates. This dispute involved the estate of the late Stephen George Packer, highlighting the legal challenges when original testamentary documents are absent.

Background of the Case

Stephen George Packer passed away on 5 July 2022, leaving behind his wife, Debra Ellen Packer, and his sister, Lynn Ann Packer. Debra asserted that Stephen died intestate and sought letters of administration to manage his estate. In contrast, Lynn claimed that Stephen had created two wills—one in 2017 and another in 2022—both appointing her as executrix. However, neither the original signed versions nor copies of these wills could be located after Stephen’s death.

Legal Proceedings and Allegations

At a pre-trial review in January 2025, Debra applied to amend her reply to remove allegations of fraud against Lynn concerning the creation of the 2017 and 2022 wills. Lynn pursued allegations throughout the case and at trial that Debra had fraudulently destroyed the draft will but withdrew this allegation in closing submissions. The court granted this amendment to withdraw the accusation of fraud, but the issue of costs related to this application remained unresolved.

The High Court found (i) Lynn’s pleaded case was not pursued at trial and the evidence adduced at trial did not support her pleaded case, (ii) contrary to Lynn, her son, and her partner’s evidence at trial, the draft will had not been executed in accordance with s.9 Wills Act 1837, (iii) the presumption of revocation was not rebutted, and (iv) in any event, the Deceased likely destroyed the draft will himself.

Court’s Findings

The High Court examined several key aspects:

1. Presumption of Revocation: The court applied the presumption that a will is revoked if it was last seen in the testator’s possession and cannot be found after their death. This presumption was not rebutted in this case.
2. Execution of the Draft Will: The court found that the draft will had not been executed in accordance with the requirements of the Wills Act 1837, as the necessary formalities were not observed.
3. Destruction of the Draft Will: It was determined that Stephen likely destroyed the draft wills himself, further supporting the presumption of revocation.

Outcome

The Judgement stated that the 2022 Will as set out in the Defence of Lynn was not pursued in closing, it being realistically accepted Stephen would not have got the 2022 Will independently witnessed. The oral evidence adduced at trial with regards to attestation by Clive and Giles (Lynn’s son and partner) was to support a case which was not pleaded, and no application was made to amend to bring the two in line, which was enough to dispose of Lynn’s case. The Judge went on to consider that, even if an application to amend had been made, and granted, it would have concluded there was insufficiently clear or cogent evidence to support the conclusion that the 2022 Will was executed in accordance with section 9 of the Wills Act 1837. The judge stated that even if he was wrong about that too, he concluded it is more likely than not that Stephen disposed of the 2022 Will believing it was invalid on the basis of what Lynn had told him.  So, on that basis the presumption of revocation applied, and the evidence supported the conclusion that destruction was more likely than loss and Stephen wished to die intestate and did so.

The High Court ruled in favour of Debra, granting her letters of administration to manage Stephen’s estate.

Implications for Estate Administration

This decision underscores the challenges faced by individuals seeking to uphold the validity of missing or disputed wills. The fact that cases such as these always turn on the strength of evidence, and in particular witness evidence, it is imperative that getting a robust handle on the evidence to be relied on if it is sufficient to pursue such a claim is paramount as having to withdraw the claim at a later date can prove fatal.