Samuel Arthur Jones v Neal Tracey & Ors

Where a will last traced to the testator’s possession cannot be found, the presumption of revocation is not a rigid rule. The court must assess the evidence as a whole and decide, on the balance of probabilities, whether the will was destroyed with an intention to revoke it. Relevant matters include the circumstances of custody, the adequacy of searches, the testator’s testamentary intentions, subsequent conduct and relationships, and the possibility of accidental loss or destruction. The burden remains on the person propounding the will. The court may take a practical and relatively flexible approach to evidence in a probate claim because the interests of the deceased and the estate require protection. On the facts, the presumption carried little weight and the evidence established that the testator’s intentions had not changed. Probate was therefore granted of the contents of the missing original will proved by copies.

The claimant sought a grant in solemn form based on a copy of David Charles Turner’s will dated 21 February 2013. The original had not been found. The will was validly executed, Mr Turner had testamentary capacity, and he made no later will.

The third defendant, Mr Turner’s sister, opposed the claim. She relied on the presumption that a will last traced to the testator’s possession and missing at death was destroyed with an intention to revoke it. If the will were revoked, she would inherit on intestacy. The central issue was whether Mr Turner had revoked the 2013 will, intentionally or otherwise.

1. Probate claim and evidential approach. A probate claim engages interests wider than those of the parties. The court must ensure that the estate is distributed lawfully. It may therefore call relevant evidence itself and may adopt a less stringent approach to witness-statement requirements where evidence may assist in determining the validity or revocation of a will, although parties remain subject to court orders and procedural rules.
2. Statutory framework. Under section 20 of the Wills Act 1837, revocation requires a later compliant testamentary instrument, a compliant written declaration, or destruction of the will by the testator, or by another person in the testator’s presence and at his direction, with intention to revoke.
3. Presumption of revocation. The original will was found to have been in Mr Turner’s custody and adequate searches had been made. The presumption therefore arose. It remained a presumption of fact rather than a rigid rule. The burden was on the claimant to prove, on the balance of probabilities, that the will had been lost rather than intentionally destroyed. The court rejected a separate two-stage inquiry into the weight of the presumption. Matters bearing on its weight formed part of the overall assessment of the evidence.
4. Application. Mr Turner was highly disorganised, kept papers in several locations, and possessed a copy difficult to distinguish from the original. Those circumstances created a substantial risk of accidental loss or destruction, so the presumption was given only very minor weight. The will and contemporaneous legal file showed a continuing intention that the claimant should benefit and that Mr Turner’s sister should not. The intended lifetime transfers of land were tax-planning measures and did not demonstrate a change of testamentary intention. There was no convincing evidence of a change of mind, an attempted later will, or an instruction to destroy existing copies.
5. Disposition. The evidence overwhelmingly established that Mr Turner had not intentionally revoked the 2013 will. An order was made for a grant of probate of its contents as contained in copies, and caveats entered against the estate were discharged.

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