The world of wills is always evolving and I was particularly interested to read a recent case which revolved around a lost will which was deemed valid as an electronic copy was found – even though it was unsigned.
When an original will has been lost and only a copy can be located, there is a presumption that the will was revoked.
When this happens, anyone looking to argue that the copy of the will is the deceased’s last valid will must rebut this presumption.
And that is what happened in Cooper v Chapman (2022), where the partner of the deceased successfully satisfied the court than an unsigned will saved on a computer hard drive was valid as it had been executed at some point and there was sufficient evidence to conclude that the deceased was unlikely to have intentionally revoked his will.
Background
In this case, the deceased was married and had two children with his wife. He suffered ill mental health and divorced his wife in 2016. A court order in 2017 prevented contact between the deceased and his children.
The deceased began a new relationship with a childhood friend in 2015. They never married but the deceased appeared to have taken steps to nominate her on his pension.
The deceased died in 2019.
He had made a will in 2009, leaving his estate to his children, who were under-18 at the time, and appointing two executors.
The children, via their mother as litigation friend, sought to prove the 2009 will. The partner, however, counter claimed that the deceased had made a homemade will in 2018, which had since been lost. This will made some cash gifts to a school and a charity, while the rest passed to the partner. This will specifically said the deceased had not benefitted the children as they had been provided for in the divorce.
The partner claimed the will was signed in the presence of her aunt and uncle in 2018. She argued that, since it was made shortly before he died, there had been no material change in circumstances and they were his wishes.
A draft will on a computer was located and computer experts agreed that it was created in January 2018, last modified in March 2018 and copied onto another computer in February 2019.
The claimants said the deceased was a meticulous record keeper and would not have lost the signed will. They also highlighted uncharacteristic spelling and grammatical errors and that the gift to the school was “out of character”.
They also asserted that the partner couldn’t prove that the deceased did not destroy any 2018 will, whereas the partner claimed the 2018 will was a temporary measure until a professional will was made.
The ruling
The court ultimately ruled that the draft will executed in March 2018 was valid. The court noted the deceased’s record-keeping had become chaotic in later years and that the fact he made lifetime gifts to his partner made it improbable he intended to destroy his will.
The court said there was no real change in circumstances to support an argument he would wish to revoke his will – and the fact he never made a professional will was irrelevant.
Conclusion
This case proves the court will take into account all circumstances of a case when determining whether the presumption that the deceased intended to revoke their will should be overturned.
A party seeking to rely on a copy of a will must build a very full picture to demonstrate their case. It is not sufficient to simply argue that there is no evidence the deceased actually revoked their will.
This case shows, once again, the importance of having a clear, executed will at all times to avoid costly and upsetting contentious probate.
Had the deceased kept the signed original of the 2018 will then this court action could have been avoided.
However, it also shows that all is not necessarily lost just because the original has been misplaced by the deceased or cannot be found after they have died.
