Revocation of a missing Will


Posted by Stephanie Walls, 20th May 2019
We look at a case where a certified copy will has been admitted to probate, despite dispute over whether the original will had been revoked.

In the case of Blyth v Sykes [2019] Mrs Agnes Moore, the deceased, died in January 2016. Upon her death, she left an envelope containing a certified copy of her will executed 11 April 2008, an unsigned draft of the same will, an original codicil to the will dated 15 October 2010 and an invoice from the solicitor who prepared the documents. No original will was found.

The copy will appointed one of the deceased’s daughters, Gail and her husband as executors and trustees. The estate was split four ways between Gail, the other daughter Debbie, Debbie’s former husband and Mrs Moore’s son William.

If any of the beneficiaries died before the deceased, their share would pass to their children. Debbie passed away before her mother on 26 February 2015. Gail, the Claimant in this matter, claimed that her mother had destroyed the original will with the intention of revoking it, after the death of her daughter. The Claimant stated that as the will was revoked the estate should pass under the rules of intestacy, whereby the Claimant, William Moore and Debbie’s children would be the beneficiaries of the estate.

The Defendant, Debbie’s former husband, would receive nothing. However, the Defendant argued against this and suggested that the will had not been revoked but had simply been lost. He maintained that the estate should be administered in accordance with the terms of the certified copy will.

The Judge considered s.20 of the Wills Act 1837, which states that, for a will to be revoked by destruction there must be intention to do so. The Judge identified three issues in dispute; where a will is missing upon death but was last known to be in possession of the deceased, a presumption that the testator destroyed the will with the intention of revoking it will arise. If this presumption does arise it can be rebutted with evidence that is clear and satisfactory.

Further, if the will had been revoked, whether the revocation was conditional and whether the conditions had been met. The Judge held that the presumption in favour of revocation did not arise on the basis that he could not be satisfied that the will was in Mrs Moore’s possession from 2010 when she executed the codicil and the date of her death. Therefore, the two further issues in dispute fell away although these were still considered in the judgment. The judge ruled in favour of the Defendant and the certified copy will was issued to probate.

This case highlights the limited circumstances under which a will shall be held revoked, if there is no replacement will or codicil. Where a will cannot be found upon the death of a testator, the courts will take a narrow approach when determining whether a presumption of revocation will arise. Parties would be well advised to keep accurate records of will storage and should also ensure that any intention to revoke is accurately recorded. Further, a new will or codicil should be executed.