The recent case of Cooper v Chapman  EWHC 1000 (Ch) has once again highlighted the importance of safe storage and valid execution of a Will, and the difficulties faced if this is not followed.
In the case, the executed copy of the Will had been lost and the only copy of it which could be located was stored as an unsigned version on a computer. The computerised draft was then admitted to Probate.
Facts of the Case
Having passed away in 2019, Dr Cooper left behind his children, partner, and the mother of his children whom he previously divorced in 2016. His partner was the First Defendant in the case with his children being the Claimants.
Prior to his divorce, Dr Cooper’s mental health was in significant decline which ultimately led to the breakdown of his marriage and the end of his contact with his children in 2017 following an Order made in the Family Courts.
Under a Will from 2009 Dr Cooper left his estate to his children; the Claimants sought to uphold this Will. However, Dr Cooper’s partner (the First Defendant) claimed that he had made a newer Will in 2018, and a copy of it remained on his computer, and in which he intended to leave his estate to her instead.
Additionally, in 2019, Dr Cooper chose the First Defendant to be a beneficiary of the death benefit of his pension through which he made lifetime gifts to her.
Both sides to the litigation appointed technical experts to analyse the computer and it was held by both that the draft Will was created and sent to another computer on the same dates, with the content remaining unchanged since March 2018.
The aunt and uncle of the First Defendant gave evidence stating that Dr Cooper had acknowledged the signing of his latter Will in their presence as they acted as witnesses to the 2018 Will despite Dr Cooper having already signed the document.
Validly Executed Wills
It is generally understood that a Will must be written, signed by the testator and witnessed by at least two people. However, under section 9 of the Wills Act 1837, it is not strictly necessary for the testator to sign their Will in the presence of their witnesses (although it is best practice to do so). Rather, the testator can acknowledge their signature in the presence of the witnesses. This means that the testator can have already signed the Will at the time they meet their witnesses and can confirm it is their signature in the presence of his witnesses.
It is also worth noting that there is a general rebuttable presumption that any missing Will has been revoked by destruction, as long as there is no evidence to suggest otherwise.
The main issues discussed in this case were:
In assessing these issues, it was held that the Will created in 2018 had been validly executed by Dr Cooper and was compliant with the formalities in section 9 of the Wills Act 1837. This was because there was evidence that the Will had been signed by Dr Cooper and witnessed by his partner’s aunt and uncle.
The Court also held that the 2018 Will was reflected in the terms of the draft version stored on Dr Cooper’s computer and that there was a continuing wish to leave the estate to the First Defendant because nothing significant had occurred since March 2018 which would have led Dr Cooper to change his mind.
Although this case is unique in some respects, the credibility of the First Defendant’s aunt and uncle was key. Upon finding that there was no presumption the Will had been destroyed, the Court used the fact that there were no events after March 2018 which would have changed Dr Cooper’s mind, especially given that he had made several lifetime gifts to his partner during this time.
This case is a rare occurrence. It is not always possible to prove a draft Will, and indeed such an approach will almost certainly be the exception rather than the rule in the future. However, Cooper v Chapman demonstrates the delicacy of this area and that the exact facts and available evidence can make all of the difference in the outcome of a case. For instance, the conclusions of the expert witnesses relating to the computer and the credibility of the First Defendant’s aunt and uncle were pivotal to the Defendant’s success.
Notwithstanding the outcome of this case, it should be remembered that:
If you are considering making a Will and want to ensure that it is compliant with the law, and that the risk of challenge can be kept to a minimum and/or any risks mitigated, then please contact our Wills and Probate team on 01543 267237 or email firstname.lastname@example.org
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