The law on the revocation of wills has recently been in the spotlight, with the case of Blyth v Sykes. Here we explore the relatively narrow circumstances in which a copy of a will can be admitted when the original document cannot be located without explanation.
Earlier this year, in Blyth v Sykes [2019] EWHC 54 (Ch), it was held by the High Court that a certified copy of a deceased’s will would be sufficient to prove to probate where the original will could not be found after death. This is despite the prima facie presumption that where an original will cannot be found after death, the testator deliberately destroyed it with the intention to revoke, which is what the claimant sought to argue.
Blyth v Sykes
The will dispute relates to the estate of Mrs Agnes Moore who died in January 2016. A certified copy of a professionally prepared will, made by her in April 2008, was found among her possessions, together with a draft of the will and the solicitors’ fee note for its preparation. The original of the will could not be found.
The will
In the will, Mrs Moore had appointed her daughter, Ms Blyth (‘the Claimant’), together with her daughter’s husband, as executors. The residuary estate was to be divided equally between the claimant and the deceased’s two other children, Mr Moore and Ms Sykes, with a fourth share to Ms Sykes’ former husband, Mr Sykes ‘the Defendant’. The will was made some 10 years before Mr and Mrs Sykes had separated. However, Mrs Moore and Mr Sykes did stay in close contact with each other thereafter. Ms Sykes had also predeceased her mother, dying in February 2015. The will contained the usual provision, whereby if any beneficiary predeceased, their share of the estate would pass to their children, if any, in equal share (per stirpes absolutely).
The Claimant’s case was that the revocation of the will took place after the Sykes separated and after Ms Sykes’ death, such that Mrs Moore died intestate (any previous wills having been revoked when she made the now disputed will; the revocation of a will does not resurrect the terms of any earlier wills). The effect of this would be that under the statutory rules which apply on intestacy, there would be no provision for the Defendant, Mr Sykes. The Defendant however, argued that the original will had simply been lost.
The envelope in which the copy will and other documents had been found, detailed on it clear instructions as to what to do if the testator's intentions changed. It also bore the printed statement ‘Your original/copy will is enclosed’ and the word ‘Original’ was struck through, leaving the impression that the envelope just contained a copy. The envelope also stated ‘keep a note in this envelope if the Original Will is deposited elsewhere’. There was no such note.
The Judge held that the obvious inference was that the original will had remained with Mrs Moore’s solicitors and so was not traceable to having been last in the deceased’s possession for her to have destroyed it with the intention to revoke. Accordingly, there was insufficient evidence to conclude revocation.
The law
Despite the prima facie presumption that where an original will cannot be found after death the testator deliberately destroyed it with the intention to revoke (Eckersley v Platt (1886) L.R. 1 P. & D. 281), it is clear that the courts require the clearest evidence of revocation.
The leading case is Sugden v Lord St Leonards, in which former Lord Chancellor Lord St Leonards made a will in 1870, together with a further eight codicils between 1870 and 1873, and died in 1875. They were kept in a deed box at his home, but other family members had access to this box, so it was not particularly secure. After his death, the box was opened and the codicils were in it, but no will. It was held, without hesitation, both at first instance and on appeal, that there was no destruction by the testator with the intention to revoke on the basis that no careful Chancery lawyer would be likely to destroy their will without also destroying the codicils and making a new one. There was insufficient evidence of revocation.
This begs the question of when is a copy will admissible in circumstances where an original will cannot be found.
Revocation
There are, broadly, three ways in which a will may be revoked:
Executing a new will; marrying; or destroying the original will with the intention to revoke it.
In respect of revocation by destruction, S20 of the Wills Act 1837 provides that ‘… No will or codicil, or any part thereof, shall be revoked otherwise than … by burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.’
It can be difficult to determine whether a will has actually been destroyed with the intention that it is revoked, or whether it has simply been lost.
To revoke a will, the will must be (1) torn or otherwise destroyed and (2) destroyed with the intention that, by doing so, the will is revoked.
Destruction
There must be an actual destruction i.e. torn apart as opposed to merely, for example, being crossed through with a pen (Cheese v Lovejoy (1877) 2 P.D. 251). The testator must also intend to revoke. The presumption can be rebutted by evidence of destruction by accident, such as fire or flood, and in that case, the contents of the missing will can be proved by a copy, or even a draft or oral evidence. Accordingly, admissions of copies are fairly commonplace and standard.
The presumption of revocation also does not apply, as in this case, where it is more than likely that the will was not in the testator’s possession but, rather, being held by a third party such as a solicitor.
Intention
A will destroyed whilst a testator is of unsound mind is not revoked; the same test for capacity to make a will (Banks v Goodfellow QBD 1870) applies to its revocation. A will is also not revoked if the testator destroys it on the basis of an incorrect assumption of fact and if the revocation is conditional upon the revocation having a particular effect, then it is only effective if the revocation has that effect (Re Southerden’s Estate, Adams v Southerden (1925) P 177).
In this case, the Claimant sought to argue that Mrs Moore intended to revoke the will because she did not want the children of Ms Sykes to inherit, but only the remaining surviving beneficiaries named in the will. However, this would not be the effect of the intestacy rules and so whilst the judge had already concluded that there was (1) no revocation, he also considered, had there been a revocation, whether there was (2) the necessary intention to revoke. In this respect, he held that there was not the requisite intention because the revocation was on the basis of an incorrect assumption of fact (namely the understanding of the operation of the intestacy rules) and/or was conditional upon the revocation having a particular effect (so as to disinherit the grandchildren as opposed to the Defendant) which it did not have.
Conclusion
This case serves as a useful analysis of the law on revocation of a will where there is very little recent case law and in the context of the relatively narrow circumstances in which a copy of a will can be admitted when the original cannot be found without explanation.
The judge was also critical of the solicitors who made the will for the deceased, for having no record of what happened to the original; so this case is a poignant reminder and warning to solicitors to maintain accurate records as to the whereabouts of original wills.
originally written for The Gazette.
