Missing wills, testamentary capacity, and probate disputes — lessons from Burgess v Whittle

The facts

Elizabeth Rowell died in April 2017.  She made two wills, one in 1984 (the "1984 Will"), and one in 2014 (the "2014 Will").  The original of the 2014 Will had however been lost, and only a copy remained.

A dispute arose between her children over which will would apply to her estate and determine the distribution of her assets. The Claimant wished for the 2014 Will to apply, and the Defendant wished for the 1984 Will to apply. The Defendant lodged a caveat in May 2017, which prevented the estate from being administered pending a ruling from the court.

To unlock matters, the Claimant issued a claim to prove or 'propound' the 2014 Will.  In simple terms, this means that the Claimant was asking the court to rule that the 2014 Will was the deceased's last valid will.  Such a ruling would resolve the dispute, and would mean that the estate would be administered according to the 2014 Will, with the deceased's assets (after payment of any expenses, debts, and taxes) distributed according to that will's terms.

The Defendant opposed the claim on four grounds, and if she convinced the court of her argument, then the 1984 Will would apply. The grounds on which she opposed the 2014 Will were as follows:

1. that the deceased lacked capacity to execute the 2014 Will,
2. that the deceased did not 'know and approve of' the 2014 Will's terms,
3. that the 2014 Will was made while the deceased was subject to the undue influence of the person who took instructions for the drafting of the will, and/or
4. that the original of the 2014 Will was lost, such that the 1984 Will should apply.

In the end, the Defendant withdrew her opposition to the proving of the 2014 Will.  But the judgment provides a succinct summary of the law behind each of the above four issues, and, crucially, shows just how long these cases can last for.

Capacity

The court explained that the test in Banks v Goodfellow still applies to questions regarding the capacity of a person to make a will.  The Mental Capacity Act 2005 does not undermine or supersede that test (Re Clitheroe). It was noted that the test for capacity cannot be pitched too high, because the policy of the law is to allow people, even people who are  "… elderly, of modest or even limited intelligence, and even suffering from illness, and taking medication" to make wills, and that capacity depends on the potential to understand, not a person's memory.

On this point, the jointly instructed expert found that: "…[the deceased] had a disorder of the mind, namely dementia…however I think that at the time she…signed her will…her symptoms were not severe enough to affect negatively her testamentary capacity…there is no evidence that she was confused…"

Want of knowledge and approval

The court explained that it is the burden of the person seeking to prove that a will is valid, to prove that the testator (the person making the will) knew and approved of its contents.  This is normally discharged by proof of capacity and proper execution of the will (i.e., it being signed and witnessed properly).  But if there are suspicious circumstances around the making of the will or as to its contents, then " the vigilance of the court may be aroused and affirmative proof from the [person seeking to uphold the will in question] may be required."

Simply put, if the will is properly executed and capacity is proven, then the assumption is that the testator knew of and approved the contents of the will.  If there are suspicious circumstances however, which might include:

1.  a note on a solicitor's file indicating a lack of knowledge of the terms of the will,
2. the terms of the will not being explained to the testator at the time he signed it, or
3.  the terms of the will conflicting with some statement made by the testator around the time of the execution of the will,

then the burden falls on the person who wants the will to apply to prove that the testator did in fact know of and approve of the terms of the will.

Undue influence

If a will is made while the testator is subject to undue influence, then the will is void. Undue influence requires coercion, and not simply encouragement.  Coercion has been defined as "…pressure that overpowers the volition without convincing the testator's judgment". In other words, it is not about persuasion, but instead the application of some force or pressure that overpowers the testator's will.

It is therefore a very high bar.

Loss of a will, and revocation by destruction

Finally, the court explained that the loss of an original will does not prevent that will from being admitted to probate and therefore determining the succession to a testator's estate.  Specific rules (the Non-Contentious Probate Rules) provide for the admission to probate of a copy of a will. It is even possible to reconstruct a will, where no copy exists, from other evidence (Wildmore v Wildmore 1938) 185 LT Jo 297).

On the other hand, if it can be proven that the testator has deliberately destroyed a will, with the intention of revoking it, then it is revoked (Wills Act 1837, section 20).  Interestingly, if a will is traced into the testator's possession, but cannot be found after his death after reasonable searches, there is a presumption that the testator has destroyed it with the intention of revocation (Welch v Phillips, (1836) 1 Moo PC 299). That presumption can be rebutted through evidence.

Conclusions

Apart from the welcome guidance on the four legal issues discussed, the key takeaway from this case is the duration of the dispute. The disagreement over the validity of the deceased’s wills began in 2017, shortly after her death, and remained unresolved until 2025, a span of eight years. This case illustrates how probate disputes can drag on for years, often incurring significant costs, stress, and wasted time.

Timely and pragmatic legal advice is essential to resolving probate disputes efficiently. Had the Defendant received robust guidance in 2017, the lengthy litigation, along with its associated costs and delays, might have been entirely avoided.