I recently acted for a successful Claimant in a probate claim to prove a copy will with an original codicil endorsed on the back. The original will could not be found. The question for the Court was whether the absence of the original will, which was last known to be in the testator’s possession, led to the presumption that the testator intended to revoke it.

The case is Whitton v Herman HC-2016-2058. It looks at the evidential questions around rebutting the presumption of revocation, and considers an alternative argument that any revocation would be conditional on the making of a new will. It is among a relatively small number of cases on this topic so is a useful illustration of these points in practice.

The testator, Stanley Herman, had made a will in 2003 leaving his residuary estate to a number of charities, the Wallace Collection, an NHS Trust, the State of Israel, and a couple of people including the Claimant. The will had been drafted by will writers. Two years later, Mr Herman made a codicil increasing the Claimant’s share of the residue. The codicil was written by hand on the back of a copy of the 2003 will. On the face of the copy will on the bottom page was written “PTO” in the same ink as the codicil was drafted.

Mr Herman had no living close family. His intestacy beneficiaries were numerous, around 35 distant cousins some of whom lived abroad. There was no evidence that Mr Herman had contact with them. Mr Herman had appointed his friend, Mr Williamson, as one of the executors. He had given custody of the original will to another friend, Mr Samuels, who lived in the same residential block. When Mr Williamson died in 2008, Mr Herman asked for the original will back and it was handed over to him by Mr Samuels. He told Mr Samuels that because Mr Williamson had died, he intended to make a new will.

On Mr Herman’s death, an original will could not be found. His flat was searched by Mr Samuels and Ms Wells, a nurse from the hospital. Mr Samuels died before the hearing, but Ms Wells gave evidence that the flat had been tidy and ordered. She found the copy will with the original codicil in Mr Herman’s bedside table with his bank statements. She described them as looking like his important papers.

The court noted that there was no evidence that Mr Herman had shown any interest in changing the provision in his will and codicil after the death of Mr Williamson.

The Court pronounced for the force and validity of the copy will. The Court found that there was insufficient evidence to upheld the prima facie presumption of revocation.

Important facts weighing against the presumption were Mr Herman’s deliberate storage of the copy will with his important papers. The Court found that he intended to give effect to the copy will by retaining the original codicil with it. The codicil was not capable of standing alone. Had Mr Herman wished to destroy the will, it would have been illogical for him to have retained the original codicil. In all likelihood he would have destroyed the codicil as well if he did not want the will to take effect. In fact, he must have wanted the provisions of the will to take effect to give effect to the codicil, a fact reinforced by his annotation “PTO” to draw attention to the codicil on the reverse of the copy will.

The Court distinguished the case from Re Jones (deceased) [1976] 1 Chancery 200 where the testator had mutilated the will to prevent it taking immediate effect and because he wanted to change the provision. In this case, the court found no evidence that Mr Herman would have wanted to benefit the intestacy beneficiaries. This was due to their lack of contact with him, and the fact that the main beneficiaries of the will included institutions and charities which it was unlikely Mr Herman ceased wishing to benefit in favour of relatives he did not know.

The Court held that if that finding was wrong, there was sufficient evidence to lead to a conclusion that any revocation was to be conditional on the making of a new will. Mr Herman told Mr Samuels that he wanted to make a new will because Mr Williamson had died. The court found that any changes to the will were likely only to have been to replace his executor. It was held that Mr Herman did not intend to revoke one will without having another in place. As no other could be found, that condition was not fulfilled.

Accordingly, the evidence was sufficient to rebut the prima facie presumption and the will was pronounced as valid.