What happens if a will has been made but can no longer be found? Exploring the presumption of revocation

One enquiry that we frequently receive is that, although the enquirer is certain that the deceased wrote a will, it cannot be located (or a will has been produced that they do not believe to be the most recent version). 

As noted in my colleague, Joseph Austin’s blog Lost Will - Lost Inheritance? an original Will is usually (in order of likelihood) (i) in the strong room of the law firm that prepared it; or (ii) at home; or (iii) at the bank. 

If a will that is believed to have been made cannot be found, then the law assumes that the will must have been revoked (in other words, destroyed). This is known as the “presumption of revocation”. This presumption can be rebutted if the court is satisfied, on the balance of probability, that the testator did not destroy their will with the intent to revoke it. 

Each case will involve a detailed review of the circumstances of the last will and the testator’s intentions, as well as subsequent events in the testator’s life having made their will. 

This issue has been at the centre of two recent disputes reaching the High Court. 

Cooper v Chapman [2022]

In brief summary, Dr Steven Cooper was married to Sarah Cooper for 13 years. They had two children together before divorcing in 2016. Dr Cooper then entered into a relationship with Karen Chapman, which continued until his sudden death in July 2019. 

In 2009, Dr Cooper made a will leaving his entire estate to his children (contingent on them reaching the age of 21). Following Dr Cooper’s death, Mrs Cooper submitted the 2009 Will for probate. 

Ms Chapman rejected the validity of the 2009 Will, claiming that Dr Cooper had drafted a homemade will on his computer in March 2018, which revoked his earlier will. Ms Chapman said that the 2018 Will left most of Dr Cooper’s estate to her, with no provision for the deceased’s two children who had been provided for in the financial settlement as part of his divorce. 

However, there was no trace that the 2018 Will had been executed, the only evidence of the existence of the 2018 Will was a file on the deceased’s computer. Experts were instructed and it was agreed that the file was created on 24 January 2018 and subsequently amended on 20 March 2018. This file was copied to another computer on 4 February 2019 and was not altered after that time. 

Ms Chapman also claimed that the file had been printed and signed on 27 March 2018 in the presence of two witnesses. Although the hard copy could not be located, Ms Chapman relied on the evidence of those two witnesses that the will had been executed. Mrs Cooper rejected that set of events or, in the alternative if they were true, then the will must have been destroyed by the deceased with the intent to revoke it. 

The judge, HHJ Klien, rejected the suggestion by Mrs Cooper that the witnesses were lying and said it was “improbable” that they would perjure themselves. He went on to say that he believed they were ‘genuinely trying to tell the truth’. Klien HHJ then went on to consider whether the document really was the deceased’s signed will and concluded, on the balance of probabilities, that it was. 

Finally, HHJ Klien had to decide whether the will was subsequently revoked. Again, he found this was improbable on the basis that no significant changes had taken place to change the perspective that the deceased had in 2018. To that extent, the judge found, the deceased probably wanted to continue to make provision for Ms Chapman. As such, the presumption of revocation was rebutted and Ms Chapman consequently was entitled to a Grant of Probate on the basis of the 2018 will. 

Jones v Tracey & Ors [2023] 

In the more recent case of Jones v Tracey,  Master March considered whether, a will that could not be found should be presumed to have been destroyed with the intention of revoking it. David Turner had executed a will in February 2013, which benefited his close friend, Sam Jones (the Claimant). Mr Turner’s original will could not be found and Mr Jones had applied for the grant of probate on the basis of a copy which had been found amongst the deceased’s papers. 

The third defendant, Linda Cano, was the deceased’s sister and she and Mr Turner had been estranged for some years. Ms Cano would benefit under an intestacy if the will was presumed revoked. She entered a caveat and defended Mr Jones’s claim. There was no dispute that the 2013 Will had been validly executed, that Mr Turner had capacity and that he did not make a will subsequent to the 2013 Will. Ms Cano also provided no evidence as to why Mr Turner might have revoked his will, apart from suggesting that he was ‘prone’ to doing so when he fell out with beneficiaries.  

Master Marsh found that, although there was evidence that the deceased had destroyed the original will, this was only of very minor weight because the deceased was highly disorganised and likely to have mixed up the original and copy wills thus destroying the original by accident. He also considered evidence that showed that the deceased was estranged from his sister and remained estranged from her. Master Marsh found that the deceased was likely to have known that, if he died intestate, his sister would benefit and to that extent, it was unlikely that he would have intentionally destroyed his will with the intention of revoking its’ terms.

Again, the presumption of revocation was rebutted.  

Moving forward

As is generally the case in relation to these types of matters, the facts that the court has to consider are highly specific and unlikely to be repeated exactly. However, both cases demonstrate that the nature of the relationship between the testator and main beneficiary was key in reaching a decision. 

To that extent, it is difficult to draw any solid conclusions from the findings however, these cases do provide useful examples of how the court may proceed when deciding whether to rebut the presumption that a missing will has been destroyed. 

further information

If you have any questions or concerns about the topics raised in this blog, please contact Laura Phillips.

about the author

Laura Phillips joined Kingsley Napley in 2012 and became a Legal Director in the Dispute Resolution Department in 2023. Laura has particular expertise in Wills, Trusts and Inheritance Disputes but also has a broad range of litigation experience.