Debra Ellen Packer v Lynn Ann Packer

Where an alleged will cannot be found, due execution must still be proved on the balance of probabilities. Clear evidence is required, although the presumption of due execution is not necessarily excluded. The presumption that a missing will was revoked is fact-sensitive. Its strength depends substantially on the character of the testator’s custody, the searches undertaken and the inherent probabilities.

A party cannot advance at trial a materially different case from that pleaded without amendment. A litigant in person receives no special rule of interpretation, although the court may consider whether an informal amendment can fairly avoid prejudice.

The claimant, the deceased’s widow, sought declarations that he had died intestate and an order for letters of administration. The defendant, his sister, sought to propound a draft will prepared in February 2022. The original will could not be found.

The issues were whether the draft had been prepared on the deceased’s instructions, whether it had been executed in accordance with Wills Act 1837, and whether any presumption of revocation had been rebutted. The defendant’s pleaded case relied on independent witnesses, but the evidence at trial developed towards alleged witnessing and attestation by family members.

1. Disposition. The court pronounced against the validity of the alleged 2022 Will and granted the claimant letters of administration. The defendant’s pleaded case was not pursued in closing, and the unpleaded alternative case could not be introduced without amendment.
2. Due execution. The court accepted that the draft had been created by the defendant on the deceased’s instructions. However, the evidence did not establish compliance with section 9 of the Wills Act 1837. The defendant’s changing account, the weaknesses in the evidence of the alleged witnesses, and the absence of reliable evidence of independent witnessing meant that due execution was not proved.
3. Pleading and amendment. The Defence was reasonably understood to advance execution by independent witnesses. It did not plead execution by family members. The fact that the defendant had acted in person did not justify treating the Defence as advancing a different case. Any such case required amendment, and no application was made.
4. Presumptions. The presumption of due execution is not incapable of applying merely because a will cannot be found. It requires evidence of an intention to carry out the formal act, together with circumstances consistent with completion. The presumption of revocation is also fact-sensitive. Here, the deceased was likely to have believed that the document remained invalid and, given his previous reluctance to formalise a will, destruction was more likely than loss. The presumption was therefore not rebutted.
5. The court considered the alternative conclusion that, even if the draft had been duly executed, it had been revoked. The same conclusion followed independently on the balance of probabilities.