EWJ 60 April 2025 web - Journal - Page 99
Debra, and the view expressed in Theobald, that the
presumption applies even where the first person to
search the testator’s repositories is someone whom a
finding the will was revoked would favour. A finding
of fraudulent abstraction by the would-be beneficiary
must be proved on the facts ([103]).
Due Execution
It might be thought that such a presumption could
have no application in circumstances where the will is
lost. This (as the Judge observed) is the view of the
learned editors of Theobald on Wills. The presumption is raised by facts suggesting the regularity of the
will on its face, i.e. by the presence of an attestation
clause accompanied by signatures. Certainly, the presumption’s strength varies with the circumstances, and
will naturally be weaker where the relevant document
does not contain a full or proper attestation clause; but
to suggest it might apply in the absence of any written
document appears, on the face of it, a surprising
proposition.
Notably, Packer v Packer is the first time that
presumption has been applied obiter and gone unrebutted since the case of Broadway v Fernandes [2007]
EWHC 684 (Ch), [103]. The last case we can find in
which it formed part of the ratio was decided almost a
century ago: Barkwell v Barkwell [1928] P 91, a decision of Lord Merrivale sitting in the old Probate, Divorce and Admiralty Division.
Yet this is precisely the position endorsed by the
Judge, obiter, at [96(c)-(d)]:
“there may be features of a case which show an intention to do some formal act, coupled with evidence
which is consistent with an intention to have carried
that into effect, but which falls short of producing the
actual will, which may still support the application of
the presumption; but in order for the presumption or
inference to have any force it will be necessary to show
an intention to do some formal act and the evidence
adduced must be consistent with an intention to have
carried that into effect.”
Conclusion
So, what does all this tell us? Most of all: the
importance of pleading, which can often be overlooked in probate claims. Packer v Packer is also a reminder of how presumptions still hold providence.
The necessary absence of the one person who actually
knows the truth, the deceased, means that factual presumptions continue to play a key role in probate
claims whilst their application has faded in other areas
of the law. Even so, as the Judgment shows, judges
should still be invited to make findings on the likely
facts, rather than just fall back on presumptions.
Probate practitioners will no doubt have their own
view on that.
Ollie Murrell acted for Debra Packer, the successful
Claimant. Ollie was assisted throughout the trial by
current pupil, Zachariah Pullar.
Revocation
The Judge endorsed the submissions on behalf of
EXPERT WITNESS JOURNAL
97
APRIL 2025
