LAUREN VICTORIA COOPER & Anor. v KAREN MARIE CHAPMAN & Ors.

For a will to satisfy the acknowledgment requirement, the testator need not use particular words or expressly identify the signature. An acknowledgment may arise from words, gestures or conduct, provided the signature is already on the document and the witnesses see it or have the opportunity to see it. The court must assess the circumstances as a whole. Where an executed will is lost, the presumption of revocation by destruction remains relevant, but it may be rebutted by the probabilities and all the evidence. The civil standard requires the court to decide what probably happened, allowing for some uncertainty.

The claimants, two children of the deceased, sought to prove a 2009 will under which they would inherit his estate. The first defendant counterclaimed to prove the contents of a lost 2018 will under which she would inherit. The court was directed to determine three preliminary issues: whether the 2018 will was executed in accordance with section 9 of the Wills Act 1837; its contents; and whether its loss raised a presumption that it had been destroyed with the intention of revoking it.

The central issues were whether the deceased had acknowledged his signature in the presence of the attesting witnesses and whether the evidence rebutted the presumption of revocation.

1. The court found the two attesting witnesses credible and concluded that the document they signed on about 27 March 2018 was the draft 2018 will. The deceased had signed it, intended his signature to give effect to it as his will, acknowledged his signature while both witnesses were present, and the witnesses then attested and signed in his presence. The will therefore complied with section 9 of the Wills Act 1837.
2. The acknowledgment requirement does not demand a particular form of words. The signature must already be on the will, and the witnesses must see it or have the opportunity to see it. An acknowledgment may be established by conduct or gestures. The witnesses need not know the technical legal requirement or even be told that the document is a will.
3. The court treated the evidential issues holistically and applied the balance of probabilities. Individual inconsistencies did not require rejection of the evidence where the overall evidence and probabilities corroborated the witnesses’ account.
4. Although the original will was lost and the presumption of revocation by destruction applied, the evidence showed that the deceased probably continued to intend significant provision for the first defendant and had no intention of revoking the will. The presumption was rebutted.
5. The court answered the preliminary issues by confirming execution of the 2018 will, finding its contents to be those of the draft in evidence, and holding that it should not be presumed to have been destroyed with the intention of revoking it.

First instance. The judgment records that DJ Goldberg ordered a trial of the three preliminary issues on 1 June 2021.