EWHC rules will validly executed despite absence of original and copies

Monday, 09 May 2022
A will drafted by the late Steven Cooper (the deceased) on his computer in March 2018 has been accepted as valid by the England and Wales High Court (EWHC), even though neither the executed version nor any copies of it can be found.
Last will and testament

The deceased passed away suddenly in July 2019 after several years of poor physical and mental health. He had been married for 13 years to Sara Jane Cooper, with whom he had two children, but the marriage had ended in divorce in 2016. He then formed a close relationship with a childhood friend, Karen Chapman, which continued until his death.

The deceased had made a will in 2009 while still married to Cooper, leaving his estate to his children on condition they lived until the age of 21. After his death, Cooper submitted this will for probate.

However, Chapman objected, claiming that the deceased had in 2018 written a homemade will on his computer, revoking the 2009 will and leaving almost all his estate to her. This document left no provision for the deceased’s two children, stating instead that he did not wish them to receive anything from his estate as they were fully provided for by the financial settlement made on his divorce from Cooper.

The problem for Chapman was that the only remaining trace of the 2018 will was a draft contained in a file on the deceased’s computer. Both parties to the dispute had instructed computer experts to examine this file, which they agreed had been created on 24 January 2018, amended on 20 March 2018, copied to another computer on 4 February 2019 and since then had remained unaltered. Chapman further claimed that this file had been printed out and signed by the deceased on about 27 March 2018 and that he later acknowledged his signature on it in the presence of two relatives of hers acting as witnesses. She therefore contended that the 2018 will is a valid will that satisfies the requirements of s.9 of the Wills Act 1837 (the 1837 Act), although no paper version was found at the deceased’s home. Chapman was able to produce the witnesses, who confirmed her account.

Cooper, acting as her children's litigation friend, disputed this, on the grounds that these events never happened or, if they did, that the deceased later destroyed the executed will with the intention of revoking it.

In the absence of physical evidence, the judge, Klein HHJ, had to reach his conclusion by sifting through the oral testimony. He quickly rejected the suggestion that the witnesses were lying when they said they both signed a document on the date that the alleged will had been executed. It was ‘improbable’ that they would perjure themselves for no personal benefit, especially in these circumstances, he said. Moreover, Klein believed they were ‘genuinely trying to tell the truth’.

He then had to decide whether the document they witnessed really was the deceased’s signed will and whether it was correctly executed and attested. Taking all the evidence into account, he concluded on the balance of probabilities that it was.

The final question was whether the deceased later revoked this will by destroying it. Klein decided that this was improbable, mainly because nothing apparently occurred after March 2018 to change the perspective the deceased had had at that point, so he probably continued to want to make significant testamentary provision for Chapman and did not intend to revoke the 2018 will. Klein therefore found that the 2018 will had been validly executed in accordance with the 1837 Act (Cooper v Chapman, 2022 EWHC 1000).


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