Ferneley v Napier & Ors

A missing or suppressed will may be proved by oral evidence, but the ordinary civil standard of proof applies. The evidence must nevertheless be clear and cogent because the court is being asked to reconstruct testamentary intentions without the document and because serious allegations may be involved.

The court must separately assess whether the alleged will existed, was duly executed, and can be sufficiently reconstructed. Suspicion, witness evidence of variable quality, and an implausible suppression theory will not suffice. The seriousness of the allegations strengthens the evidential requirement without converting the civil standard into proof beyond reasonable doubt.

The claimant, who had been in a relationship with the deceased, sought probate of an alleged 2007 will whose original could not be produced. She alleged that the defendants had found and suppressed a signed will at the deceased’s property shortly after his death. The defendants accepted finding and reading an unsigned 2002 draft will, but denied finding any executed will.

The central issues were whether a valid will had been found, whether its contents and execution could be established by oral and documentary evidence, and whether the alleged suppression conspiracy was proved.

1. Claim dismissed. The claimant failed to prove that the alleged 2007 will existed in executed form, that it had been suppressed, or that its contents and due execution could be established sufficiently to justify probate.
2. A lost or suppressed will can in principle be proved by oral evidence where its terms and due execution are satisfactorily established. The applicable standard is the ordinary civil standard, namely the balance of probabilities. The stricter criminal standard was not justified merely because the document was unavailable.
3. The court nevertheless required evidence of appropriate clarity and cogency. The absence of the testamentary document removed the safeguards ordinarily provided by the Wills Act 1837. The seriousness of alleging that members of the deceased’s family had suppressed a will also required a strong case, but did not alter the civil standard.
4. The court followed the approach of Pearce J in Re Wipperman, deceased [1955] P59 and Oliver J in Re Yelland, deceased [1975] 119 Sol Jo 562. It treated the contrary observations in Woodward v Goulstone [1886] 11 App Cas 469, Young v Holloway [1895] P87 and Harris v Knight [1890] 15PD 170 as not establishing a binding rule requiring proof beyond reasonable doubt.
5. On the facts, the electrician probably overheard the reading of the unsigned draft will and misheard or misunderstood matters concerning the claimant, execution and a cabinet. The evidence did not establish a sufficiently plausible suppression conspiracy. The court dismissed the claim to prove the 2007 will, but left open the question whether the 2002 draft might be a copy of an executed will and therefore did not finally pronounce an intestacy.

First instance decision. No prior appellate decision is stated in the judgment.