Many people put off making a will or have reservations about doing so, but having a professionally drafted will drawn up by a solicitor is the best way to avoid disputes arising after you are gone. This point was amply illustrated by an unusual High Court case in which a deceased man’s wife claimed that he had died intestate while his sister alleged that he had made a valid will, although it could not be found after his death.
The man had been diagnosed with cancer in 2010. Although it was kept at bay for many years through radiotherapy and medication, he eventually died in 2022 at the age of 65. His wife and sister had both cared for him as his health declined, but their relationship deteriorated almost immediately after his death, and his sister lodged a caveat with the Probate Registry to stop a grant of representation for his estate. She contended that he had made a will which included her as a beneficiary. His wife brought proceedings, maintaining that he had died intestate and she was therefore entitled to inherit his entire estate.
His wife gave evidence that, although she had urged him to make a will, he had said that he could not see the point as she would inherit everything anyway. However, his sister claimed that she had assisted him to make a will, which she drafted on her computer, several months before he died. The Court had to consider whether a draft will had been created on his instructions and, if so, whether it had been executed in accordance with Section 9 of the Wills Act 1837. As no will had been found, the question also arose of whether the presumption that he had revoked it by destroying it could be rebutted.
The Court accepted that his sister had created a will for him on his instruction, but found that he had most likely never had it witnessed by independent witnesses. Although those conclusions were sufficient to decide the case, the Court was alive to the possibility that an application could have been made to amend the defence to argue that the will had been witnessed by family members. On the evidence, it seemed more likely that the man had been encouraged to take the will to be witnessed independently, without any signature being placed on it. It had thus not been validly executed.
The Court also found that, even had a valid will been made, the presumption that it had been revoked would not have been rebutted. The Court noted that the will would probably have been at the man’s house, and his family had been unable to find it there. It was most likely that, having been reluctant to make a will and having been told that the will had not yet been validly executed, he had destroyed it.