Blyth v Sykes  EWHC 54 (Ch) is a recent case that demonstrates how the court deals with the presumption of revocation of a Will by destruction when the original Will cannot be found.
Mrs Moore died aged 81 on 9 January 2016. Amongst her possessions was an envelope containing a certified copy of a Will executed on 11 April 2008 (the Will), an unsigned draft of the Will, an invoice from the solicitor who prepared the Will and an original Codicil to the Will dated 15 October 2010 (the Codicil). The original Will was nowhere to be found.
Mrs Moore had three children, Gail (the Claimant), Debbie, and William. The Will appointed the Claimant and her husband as executors and provided that the estate was to be divided equally between the Claimant, Debbie, William and Debbie’s former husband, Leslie (the Defendant). The default provision in the Will was that if any of the beneficiaries predeceased Mrs Moore, their share of the estate would be divided equally between the deceased beneficiary’s children. The Codicil did not interfere with the devolution of the estate and simply substituted Leslie as executor, in place of the Claimant’s husband.
Debbie predeceased her mother. Therefore, in accordance with the terms of the Will, Mrs Moore’s estate would be distributed equally between the Claimant, the Defendant, William and Debbie’s 25% share would pass to her children.
The Claimant claimed that the original Will was missing as it was torn up by her mother with the intention to revoke it. In which case, Mrs Moore’s estate should pass in accordance with the intestacy rules (which would provide that the Claimant and William would both receive a 1/3 share of their mother’s estate and the remaining 1/3 would pass to Debbie’s children). Under the rules of intestacy, there would be no provision for the Defendant.
The Defendant did not accept that Mrs Moore had revoked the Will by destroying it and asserted that the Will must just be lost, in which case the certified copy of the Will should be admitted to probate.
The case of Blyth v Sykes is concerned with revocation of a Will by destruction. Section 20 of the Wills Act 1837 deals with revocation of a Will and provides that:-
“No will to be revoked but by another will or codicil, or by a writing executed like a will, or by destruction.
No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is herein-before required to be executed, or by the 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. “
As in the case of Blyth v Sykes, 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. Where the question of its actual destruction is an issue, if a Will can be last traced to the possession of the testator, there is a presumption, in the absence of clear and satisfactory evidence to the contrary, that the testator destroyed the Will with the intention to revoke it.
The main issues for consideration by the court in this case were:
- Whether the presumption of revocation arose on the basis that the Will was more likely than not to have been in Mrs Moore’s possession before her death;
- If the presumption arose, whether, the Defendant has rebutted the presumption;
- If the presumption has not been rebutted, and therefore it is concluded that the Will was destroyed with the intention to revoke it, whether the revocation was conditional and whether the condition was met or not.
If the Judge was not satisfied that the presumption of revocation had arisen in this case, the other two issues would of course fall away.
On hearing all of the evidence, His Honour Judge Saffman ultimately took the view that, if Mrs Moore was given a certified copy of the Will, then the original must have remained with the solicitors. Unfortunately for the Claimant, the solicitors had no record of retaining the original Will nor a record of sending the same to Mrs Moore. HHJ Saffman could therefore not satisfy himself that the original Will was in Mrs Moore’s possession and therefore concluded that the presumption of revocation does not arise. It was therefore ordered that the estate be administered in accordance with the terms set out in the certified copy of the Will.
In the event he was wrong in his initial conclusion, HHJ Saffman went on to consider issue two and three above (and concludes in any event that (1) there was clear and satisfactory evidence to rebut the presumption and (2) if the revocation was conditional the condition was not met) and so the Judgment makes interesting reading. You can find a copy of the full Judgment here:- https://www.bailii.org/ew/cases/EWHC/Ch/2019/54.html
Points to note
This case clearly sets out the application of the law on revocation of wills including on the presumption of revocation.
Will drafters should take note that HHJ Saffman criticised the solicitors for failing to keep a record as to the location of the original will and so this case serves as a useful reminder to keep accurate records.