February 1, 2019
Engaging Solicitors to both draft your Will and store it safely until it is needed really is the only sensible course to take. In a case where such wisdom did not prevail, the High Court had to decide whether a missing Will had been deliberately destroyed, mislaid or dishonesty removed.
After a homeowner’s death the original of a Will, by which he had left his estate to his partner, could not be traced. The only evidence that such a document existed was a copy of a self-drafted Will, completed on a shop-bought form, that the man had sent to his partner’s mother. In those circumstances, the man’s brother – who stood to inherit his estate if he had died intestate – argued that there was a presumption in Law that he had deliberately destroyed the Will with the intention of revoking it.
In ruling on the matter, the Court rejected the partner’s claim that the brother had fraudulently suppressed the Will be removing it from the man’s home following his death. The brother had both an opportunity and a motive to take the Will, but there was no positive evidence that he had done so and suspicion was not enough.
The partner had cared for the man during his final illness and, given their subsisting relationship, the Court found it unlikely that the man had deliberately destroyed his Will. The Will had not been kept securely and, however obvious the point might appear to be a legal professional, the man may not have appreciated the importance of retaining the original document, given that a copy was in safe hands.
The evidence established that the man was neither tidy nor house-proud. In those circumstances, the probability was that the Will had been mislaid or destroyed without any intention to revoke it. The Court upheld the partner’s claim and pronounced in solemn form in favour of the extant cop[y of the Will.
Our Legal Executive, Janine Guthrie, comments that “This case highlights the need to take professional advice when making a Will and the importance of having it stored safely.”
If you would like to draft or update your Will, contact our Private Client team to book an initial consultation. Call us on 0800 158 4147 or visit us at our offices in Gloucester.
Rowe v Clarke. Case Number: HC 04 02383