Case study: Late discovery of Will puts the cat among the pigeons – a cautionary tale

The recent decision in Wrangle v Brunt has demonstrated the importance of making executors and trusted relatives or close friends aware of the existence of a Will once made. Of course, there is no obligation to tell them the terms of the Will itself. In this case a cat caused the testator's whole estate to be unravelled in accordance with his actual wishes when it uncovered a Will that his mother had tried to keep hidden for her own benefit.

The facts

The testator died in 2007 at the age of 35. He had an older brother and sister and, prior to his death, they each inherited a third share in the family farmland and business from their maternal grandfather. Each share was worth approximately £2 million. The testator's mother did not receive anything from the estate.

Following his death, the testator's mother claimed that the testator had not made a Will and, as such, had died intestate. In line with this, in 2008 the mother successfully applied for Letters of Representation on the basis of intestacy.

She did not tell the other family members that she had done so and received the testator's £2 million share in the farm, which she subsequently transferred to her surviving son. The testator's sister assumed that the farm and family business had been passed to her and her brother, such that they would each own a 50% share.

Over the next 8 years the farm fell into disrepair and family relations broke down. The testator's sister felt she was being bullied out of the business by her mother and brother. A family meeting was called in 2016. At this meeting, the testator's sister discovered that the mother had obtained Letters of Representation and had transferred the testator's share of the farm to her brother. Further, the mother wanted to purchase the sister's one third share, such that she and her son would have complete control of the farm.

In 2017 the testator's brother accused his sister of fraud in her management of the family business and demanded she repay a sum of £8,920. His sister denied all allegations of fraud.

Shortly thereafter, the testator's mother demanded that the testator's uncle, the claimant in this matter, leave the property on the farmland where he had been living since 2010. The mother claimed that she owned one third of the farm and therefore had the right to evict him; she subsequently served him with a notice to terminate his occupation.

The testator's brother and sister were due to engage in a mediation to deal with the allegations of fraud and it was suggested that the claimant also attend to resolve the matter of his threatened eviction. Just days before the mediation was due to take place, a Will executed by the testator was discovered by chance, when a cat belonging to the claimant's solicitor knocked over a stack of papers due to be shredded.

The Will left legacies of £20,000 to the testator's mother and to his uncle, the claimant. The Will also provided that the testator's share in the farm should pass to his brother and sister in equal shares and his share in a farmhouse should pass to the claimant. The residuary estate was to be split between the testator's brother and sister. The Will had been signed by the testator's advisor to whom he had granted an Enduring Power of Attorney. The mother argued that the Will had been forged after her son's death.

The Court's findings

The Court was satisfied that the Will had not been forged and had been validly executed. Whilst the defendants (mother and brother) had the legal burden of proving the Will had been forged, it was found that the claimant had an evidential burden to defeat the allegation that it had been forged.

The testator's advisor was not a solicitor, although he claimed to provide 'litigation support' to corporations and individuals. He had previous convictions of dishonest offences and so the Court was mindful of his credibility. However, the Court accepted evidence that the testator was present at the execution of his Will and that he had asked for his advisor to sign on his behalf.

Further, both witnesses to the Will gave evidence to confirm that they had witnessed the execution of the Will and the Court noted that they ostensibly had nothing to gain by lying. The Court also accepted evidence that the defendants were aware that the testator had made a Will at the time it was drafted.

The grant of Letters of Administration to the mother was revoked and an independent solicitor was appointed to administer the estate under the terms of the Will.

How to avoid disputes involving lost Wills

• Practitioners should consider registering a Will with Certainty, the National Will Register;
• Original Wills should ideally be securely stored by a solicitor, bank or Probate Registry;
• A testator should sign his own Will if at all possible.
• After an individual's death, appropriate investigations should be carried out to confirm whether a Will exists and, if a Will cannot be found, legal advice should be sought.