Rowe v Clarke

Where a will last traced to the testator’s possession is not found at death, the presumption is that the testator destroyed it with intent to revoke. The party propounding the will bears the burden of rebutting that presumption. The presumption is one of fact, not an inflexible rule, and its strength depends on the character and security of the testator’s custody. The party relying on it need not prove that the will was absent when the testator died. The court must assess the competing probabilities, including destruction with intent to revoke, accidental loss or destruction, and removal by another person. A copy may be admitted to probate where accidental loss or destruction is more probable than revocation.

Barrie James Clarke made a will appointing Mark Andrew Rowe executor and leaving him the estate. The original was not found after Barrie’s death, although a copy sent to Mr Rowe’s mother survived. Barrie’s brother, Kenneth Anthony Clarke, obtained letters of administration on the footing of intestacy and resisted probate, relying on the presumption that a missing will last in the testator’s possession was destroyed with intent to revoke.

The principal issues were whether the presumption arose, whether the brother had to prove that the will was not in existence at death, and whether the evidence rebutted the presumption. The court also considered a counterclaim for possession of the house.

1. The claim allowed. The court pronounced in favour of Barrie’s will in solemn form, in the form of the surviving copy until the original was produced, and revoked the grant of administration. The counterclaim for possession was dismissed.
2. The presumption applied because the will had been traced to Barrie’s possession and was not forthcoming at his death. Under Welch v Phillips and Sugden v St Leonards, it remained a rebuttable presumption of fact. Its strength depended on the character of Barrie’s custody.
3. The custody was exceptionally weak. The will may initially have been kept in a filing cabinet, but documents were later stored untidily in wardrobes and may have been discarded during a clearance. Barrie’s disorganisation, alcohol abuse, limited experience of legal transactions and failure to appreciate the importance of retaining the original weakened the presumption.
4. There was no requirement for Kenneth Clarke to prove that the will was not in existence at Barrie’s death. The contrary reasoning in Finch v Finch was wrong to that extent. The court followed Sykes v Sykes and treated Allan v Morrison as persuasive authority against imposing that additional burden.
5. The court considered three possible explanations: deliberate destruction with intent to revoke, accidental loss or destruction, and fraudulent removal after death. Suspicion and opportunity did not establish fraudulent removal, because there was no positive evidence that the will still existed at death. Deliberate revocation was possible but improbable, given Barrie’s continuing affection for Mr Rowe, his dependence on him, and his earlier purpose in excluding his brother from the estate.
6. Accidental loss or destruction during Barrie’s lifetime was more probable than deliberate revocation. The presumption was therefore rebutted on the balance of probabilities. The surviving copy was admitted to probate.