Missing original Will ruled validly executed…

Date Added 13.07.22

Missing original Will ruled validly executed – It is commonly understood that for a Will to be valid, it must be in writing and signed by the testator in the presence of two witnesses, who are both present at the time of the Will signing. Each witness then attests to witnessing the testator’s signature in the presence of the testator.

However, it is not strictly true that the witnesses need to be present when the testator signs the Will. In fact, section 9 of the Wills Act 1837 (“the Act)” allows for the testator to sign the Will in private. As long as the testator later acknowledges their signature in the presence of two witnesses, present at the same time, this shall suffice to satisfy the Act.

The point about ‘acknowledgment’ was discussed in the unusual recent High Court case of Cooper v Chapman [2022] EWHC 1000, where neither the signed original Will nor any executed copies could be found.

In this case, Dr. Steven Cooper died in July 2019, having suffered from ill health for many years. He had been married to Sara Jane Cooper for 13 years and they shared two children together. In 2009 Dr. Cooper made a Will, leaving everything to his children when they reached the age of 21.

Dr. Cooper and Mrs. Cooper later divorced in June 2016. Dr. Cooper started a relationship with his childhood friend, Karen Chapman, which continued until he passed away.

When Dr. Cooper died, Mrs. Cooper submitted his 2009 Will for probate. However, Ms. Chapman objected to this, claiming that Dr. Cooper had written a Will in 2018, which left everything to her instead.

The 2018 Will was homemade. Ms. Chapman claimed that the Will had been printed, signed and witnessed on or about the 27 March 2018. The only version of the 2018 Will that Ms. Chapman could find, was saved as a draft unsigned document on the computer of Dr. Cooper. Ms. Chapman was unable to find the executed original or a signed copy of the 2018 Will. Ms. Chapman maintained, however, that the Will was signed by Dr. Cooper, who later acknowledged his signature in the presence of two relatives of hers, both present at the same time, who acted as witnesses to the Will.  Ms. Chapman, therefore, claimed that the 2018 Will was valid in accordance with section 9 of the Act and was able to produce the two witnesses, who confirmed Ms. Chapman’s account.

Mrs. Cooper argued that these events never happened but that even if they had, Dr. Cooper later destroyed the 2018 Will with the intention of revoking it, meaning his 2009 Will was his last Will.

The two witnesses to the 2018 Will gave evidence in court to say that they signed a document on or about 27 March 2018, which Dr. Cooper had signed and who pointed to his signature.

The judge in the case, Klein HHJ, rejected the idea that the witnesses were lying about the signing of the Will and held that it was “improbable that they would perjure themselves for no personal benefit”. The judge was also satisfied that Dr. Cooper had intended to create a new original Will and that on the balance of probabilities, the Will and been correctly executed and attested.

Judge Klein also rejected Mrs. Cooper’s argument that Dr. Cooper must have destroyed the 2018 Will, as there was nothing that occurred significantly from the time the Will was made, until Dr. Cooper’s death to suggest this. Judge Klein found that the 2018 Will had been validly executed.

This case highlights the importance of storing your original Will safely and informing those close to you where they can find such a document in the event of your death. If you believe that you have a Will validity claim … Talk to Tollers on 01604 258558 our experienced contentious trusts and probate solicitors will be happy to discuss things further.

Disputing A Will | Tollers Solicitors – Contesting A Will


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