Blyth v Sykes

A will is not revoked merely because it has been destroyed. The party relying on revocation must establish the statutory requirements, including the necessary intention. Where a will was last in the testator’s possession and cannot be found at death, a rebuttable presumption of destruction with intent to revoke may arise. The strength of that presumption depends on the security of the testator’s custody, and it may be rebutted by clear and satisfactory evidence.

Where destruction was conditional upon an assumed effect of revocation, the revocation is ineffective if that condition was not satisfied. The court must determine objectively, from the evidence, whether the assumed consequence was a condition of the revocation.

Agnes Moore died leaving an envelope containing a certified copy of a 2008 will and the original of a 2010 codicil. The original will was missing. The will divided the estate equally between her two surviving children, her deceased daughter’s children, and Leslie Sykes, her former son-in-law. The claimant, Gail Blyth, contended that Moore had destroyed the will after her daughter’s death and that the estate therefore passed on intestacy. Mr Sykes disputed revocation and sought probate of the certified copy.

The central issues were whether the will had probably been in Moore’s possession so that the presumption of revocation arose, whether that presumption was rebutted, and whether any revocation had been conditional on the estate passing in accordance with Moore’s mistaken intentions.

1. Disposition. The court directed that probate should proceed in favour of the certified copy of the will.
2. The presumption that a missing will was destroyed by the testator with intent to revoke did not arise. The claimant had not proved, on the balance of probabilities, that the original will was in Mrs Moore’s possession between 2015 and her death. The envelope’s wording, the certification of the copy when the codicil was executed, and the evidence concerning the solicitors’ custody supported the conclusion that the original might have remained with the solicitors.
3. Even if the presumption had arisen, it would have been rebutted by clear and satisfactory evidence. The evidence that Mrs Moore wanted her estate divided between her two surviving children and Mr Sykes did not establish that she had destroyed the will. Destruction of the original while leaving the certified copy intact, without making a replacement will, also weighed against revocation.
4. In the further alternative, any revocation would have been conditional. Applying Re Southerden’s Estate, Adams v Southerden (1925) P177, the court held that the evidence showed that Mrs Moore would not have revoked the will if she had known that intestacy would exclude Mr Sykes and would give direct benefits to her grandchildren. Since the assumed consequence was not achieved, the revocation would have been inoperative.
5. The court also noted that a codicil may survive destruction of the will where it contains independent testamentary dispositions. Here, the codicil could stand alone as to the appointment of trustees, but not as to dispositions dependent on the will.