In the recent case of Cooper v Chapman [2022] EWHC 1000 (Ch), a Will of which the executed copy had been lost and of which only a draft on a computer had been located was found to be validly executed and was admitted to probate.

The Facts

Dr Cooper, the testator, died suddenly in July 2019. He was survived by his partner, the First Defendant, his children, the First and Second Claimants, and by the mother of his children from whom he was divorced.

In 2014, Dr Cooper suffered a significant decline in his mental health. Shortly after that his marriage broke down and he was divorced in 2016. Direct and indirect contact between Dr Cooper and his children ceased following an order of the Family Court in 2017.

In 2009, Dr Cooper had made a Will leaving his estate to his children (“the 2009 Will”). The Claimants sought to prove this Will. The First Defendant claimed that Dr Cooper had made another Will in 2018 on his computer which, in essence, left his estate to the First Defendant (“the 2018 Will”) and sought to prove this Will.

In February 2019, Dr Cooper nominated the First Defendant as a beneficiary of the death benefit payable under his occupational pension and made gifts to her during his lifetime.

The First Defendant did not have the original copy of the 2018 Will, instead claiming that she had a draft of it on a computer that Dr Cooper used.

Both parties instructed computer experts. Both experts agreed that the draft of the will was created on 24 January 2018, amended and last modified on 20 March 2018, copied to another computer on 4 February 2019 and then remained unaltered.

The First Defendant’s aunt and uncle gave oral evidence stating that they had witnessed Dr Cooper signing the 2018 Will on 27 March 2018. Their evidence was that Dr Cooper had already signed the 2018 Will but effectively he acknowledged his signature in their presence.

Requirements for a Validly Executed Will

Generally speaking, most people are aware that to be valid a Will must be in writing, signed by the testator and witnessed by two or more people. What is less well known is that under section 9 of the Wills Act 1937, it is not necessary that the testator signs their Will in the presence of the witnesses; the testator can instead acknowledge their signature in the presence of the witnesses meaning that the testator signs the Will beforehand and confirms in the presence of the witnesses that the signature is the testator’s.

There is also a presumption that a missing Will has been revoked by destruction where there is no evidence to the contrary. These were the issues at play in this case.

The Decision

At a hearing on the preliminary issues, namely:

  1. Whether Dr Cooper executed a Will in accordance with the formalities of s.9 of the Wills Act 1837 in 2018; and, if so;
  2. What the contents of the 2018 Will were;
  3. Whether, in the absence of an executed original of the 2018 Will, the same should be presumed to have been destroyed by Dr Cooper with the intention of revoking it.

The court held that:

  • The 2018 Will had been properly executed in accordance with s.9 of the Wills Act 1837 as there was evidence that it had been signed by Dr Cooper and witnessed by the First Defendant’s uncle and aunt. The court found that Dr Cooper had acknowledged his signature in the witnesses’ presence by gesturing towards the Will and watching them sign it.
  • The 2018 Will was in the terms of the draft of the Will found on the computer.
  • Dr Cooper had a continuing wish to make significant testamentary provision to the First Defendant and that nothing significant had happened after 2018 to make Dr Cooper change his mind.
  • The Judge held that there was no presumption that the 2018 Will had been destroyed by Dr Cooper with the intention of revoking it.

Comment

This case is somewhat unusual and as is standard in these types of cases turned entirely on the specific facts and evidence available. The Judge found the attesting witnesses’ evidence to be credible. In deciding that the there was no support for the presumption that the Will had been destroyed, the court relied on there having been no events after March 2018 to change Mr Cooper’s position that he wanted to make significant provision for the First Defendant (he had made lifetime gifts to her in that time period).

While it is possible to prove a copy of a draft Will where the executed copy has been lost, this is a rare occurrence; this case demonstrates the fact sensitive nature of these disputes and the importance of the evidence available to the court. Here both the attesting witnesses’ and the expert computer evidence was key.