The tribulations of validating a will after losing the original
The High Court upheld the validity of a later will and granted administration with a copy annexed, after the party challenging the document failed to substantiate claims of a lack of testamentary capacity or undue influence.
Facts:
This probate claim concerns the estate of the late Elizabeth Rowell, who died on 13 April 2017. The claimant sought to prove a will dated 12 June 2014. While the first defendant initially challenged its validity and counterclaimed to propound an earlier will dated 9 May 1984, one which equally distributed the residue of the estate to all her children.
The claimant and the defendants are the three adult children of the deceased. The deceased had been estranged from the first defendant since 2009 and had repeatedly told the claimant that she intended to change her will to exclude the first defendant.
The 2014 will substantially altered the disposition, excluding the first defendant entirely in favour of the claimant, the second defendant, and the first defendant's two sons. The deceased executed the 2014 will on 12 June 2014, after two meetings with a wills consultant, Tom Wansbrough.
The first defendant challenged the 2014 will on four grounds, specifically a lack of testamentary capacity; want of knowledge and approval; undue influence; and revocation by destruction (as the original was missing). By the time of trial, the first defendant withdrew the challenges regarding capacity (accepting the expert evidence that the deceased had capacity, despite the onset of early-stage dementia) and undue influence, and adopted a neutral position in relation to knowledge and approval. The first defendant also accepted that the original 2014 will had been sent to the Probate Registry after the deceased's death, thereby rebutting the presumption that the deceased had destroyed it with the intention of revocation. The evidence showed that the Probate Registry had the original will in January 2023 but had subsequently lost it by April 2024.
Decision:
The High Court ruled that the deceased's estate is to be distributed according to the terms of the 2014 will, which excluded the first defendant from benefitting directly. The Court's reasoning for sanctioning a grant of letters of administration with the copy of the 2014 will annexed—thereby validating the 2014 will—rested on the successful rebuttal of all challenges raised by the first defendant, primarily through the acceptance of unchallenged evidence.
The Court accepted the unchallenged expert report, which concluded that the deceased retained the capacity to understand the nature of the act, the extent of her property, and the claims of potential beneficiaries (the Banks v Goodfellow test), despite being in the very earliest stages of dementia. Since the deceased was found to have capacity and the will was duly executed, the legal presumption of knowledge and approval of the will's contents applied.
The legal presumption that a missing will was destroyed by the testator with the intention of revoking it (revocation by destruction) only applies if the will was last traced to the testator's possession. The evidence proved that the original 2014 will was in fact sent to the Probate Registry and was confirmed to be in its possession after the deceased died in 2017. Since the will was lost by the Probate Registry and not the deceased, the presumption of revocation did not apply.
Implications:
This decision underscores the critical importance of expert evidence in probate disputes, especially regarding testamentary capacity. The judgement clarifies the application of the presumption of revocation (Welch v Phillips), which applies when a will last traced into the testator's possession cannot be found at death. The mere loss of an original will does not invalidate it if there is compelling evidence that the testator did not destroy it. A grant of probate (with the copy annexed) is possible, even if a Government body (e.g., the Probate Registry) is responsible for the loss.
The case confirms the law's respect for a testator's right to disinherit a child following an estrangement, provided they have testamentary capacity. The Court's role is not to judge the reasons for the estrangement but rather to determine the validity of the document reflecting the testator's final wishes.