The Difficulties Of Proving A Will

The difficulties of proving a Will has been revoked by destruction.

In the case of Blyth v Sykes [2019] EWHC 54 (Ch), the claimant was unable to prove that her deceased mother tore up her last Will with the intention of revoking it. Instead, the estate was distributed in reliance on a certified copy of the Will. 

The testator, Mrs Agnes Moore, had a son, William Moore, and two daughters; Gail Blyth, who was the claimant, and Debbie Sykes, who was previously married to the defendant, Leslie Sykes. In her last Will, Mrs Moore’s estate was held on trust equally for William, Gail, Debbie, and Leslie. If any of them died before her, their share would be divided equally between their own children. Unfortunately, Debbie pre-deceased Mrs Moore.

When Mrs Moore later died, only a certified copy of her Will and an original codicil were located but no copy of the Will could be found at her home or at her solicitors’ offices.

Gail argued that Mrs Moore had torn up her Will because she intended to revoke it after Debbie died but there was no evidence that it had even been in her possession. Gail (and her daughter) also argued that following Debbie’s death, Mrs Moore had told her she was destroying her Will because she wanted to leave her estate to Gail, William, and Leslie; and not to Debbie’s children. On the other hand, Leslie stated that he had only seen the copy Will and his son also said that the original had never been in Mrs Moore’s possession.

The High Court (the “Court”) noted that by revoking her Will, Mrs Moore’s estate would be distributed under the intestacy rules which would benefit Debbie’s children rather than Leslie.

Gail also relied on the presumption of destruction where a Will has been in the possession of a testator but cannot be located. She also argued that solicitors do not lose Wills and so it must have been kept by Mrs Moore if it was not stored on their file.

The Court was not satisfied that the Will had been in Mrs Moore’s possession, because although she had been given the original codicil, it did not mean she received the original Will at the same time. There was no good evidence the Will had not been lost but there was evidence that Mrs Moore had been given a copy.

The Court found that the Will had not been in Mrs Moore’s possession and so there was no presumption that its absence meant it had been destroyed. It was also difficult to believe that Mrs Moore would have thought that tearing up her Will would mean her estate would be left to Gail, William, and Leslie; especially as she had previously made Wills and so it was unlikely she would have destroyed it rather than making a new one.

The Court decided that if Mrs Moore had revoked her Will, her intended effect would be that her estate would devolve only to Gail, Leslie, and William, but she would not have revoked it knowing this would exclude Leslie and Debbie’s children.

This case shows that the court will insist on clear evidence that a Will has been revoked otherwise it will grant probate even if the original Will cannot be found.

Therefore, if you decide to revoke your Will by destroying it, it is important that you leave a note about the circumstances of doing so, sign and date it, and leave it in a sensible place with your other important paperwork. Ideally you should also inform the solicitors who drafted your Will so that they can add a note to the file. This will help to avoid any confusion when the time comes for your estate to be administered. Alternatively, you can make a new Will or codicil and you should seek legal advice if you intend to do this.

To discuss any of the issues raised above, please contact a member of the Private Client team on 01384 410410.