EWJ 60 April 2025 web - Journal - Page 98
which could not be located. In the subsequent months,
post-issue and up to trial, Lynn’s position variously
shifted, each time apparently getting closer to contending for a s.9-compliant execution. The final case
as articulated at trial was an evolution of and in
important respects inconsistent with these earlier
iterations ([125]-[127]).
Even if that inconsistency could be explained, Lynn’s
evolved case faced problems viewed against the
Judge’s findings as to Lynn’s character, and internal
and external inconsistencies of Clive and Giles’
evidence ([128]-[131]).
The Judge therefore rejected it. He found it more
likely that Lynn handed Stephen the draft will, created by her, and encouraged him to take it to be independently witnessed. It was not signed at all on 21
February 2022. Lynn did not advance (and there was
no evidence to support) a case that Stephen proceeded to have the will witnessed by third parties. Accordingly, Lynn’s (unpleaded) case on s.9 compliance
failed on the evidence ([132]).
(2) Presumption of revocation?
Assuming the 2022 Will was validly executed by
Stephen on 21 February 2022, the inevitable question
arose: what happened to it? Even if validly executed,
the question still arose: what happened to the drafts!
The law has developed a presumption in such cases
where the court cannot answer this on the evidence:
the presumption of revocation, effectively summarised
by the Judge at [99]-[107]:
l When a will is last known to be in the testator’s
possession, but is not found on their death, it is
presumed the testator destroyed the will with the
intention to revoke;
l The presumption can be rebutted, on the balance of
probabilities, by circumstances pointing to the contrary. The burden of proof lies with the person seeking to propound the will (i.e., Lynn);
l The strength of the presumption will vary depend-
ing on the character of custody the testator had over
the will.
The Judge’s conclusion was based on the “unusual
feature” of the case: even if Stephen had created a valid
will, he was nevertheless told by Lynn that it needed to
be independently witnessed. In other words, the document he was given was, as far as he was concerned, incomplete. When viewed alongside Stephen’s reluctance
to make a will and spend money on solicitors, it was
more likely he destroyed it himself. Given the thorough
searches made of Renditt by Debra and others, and the
findings made about the custody Stephen kept of important documents, the simple loss of the will was not
the likely scenario ([135]-[141]).
Not only was the presumption of revocation unrebutted, but the Judge was prepared to reach the same
conclusion on the facts.
Discussion
The decision is significant for its treatment of the two
evidential presumptions engaged by the case: due
execution and revocation.
EXPERT WITNESS JOURNAL
96
APRIL 2025
