Following Russell-Cooke’s recent success in the High Court case of Jones v Tracey & others (2023), senior associate Andrew Morgan explains the importance of securely storing an original will, the role of the rebuttable presumption, and the implications for beneficiaries.
Why should an original will be safely stored?
Where an original will, a paper version with wet-ink signatures, is known to have been last within the testator’s possession and it cannot be located after their death, there is a rebuttable presumption that the will was destroyed by the testator with the intention of revoking it. If the presumption applies, the estate will not be distributed in accordance with the will; rather, the estate would typically pass under the intestacy rules (i.e. rules that identify the beneficiaries where there is no valid will). It is possible to rebut/overturn the presumption and admit a copy of the will to probate, and that is what happened in Jones v Tracey & others .
Jones v Tracey & others
In Jones v Tracey & others , Mr Turner died in 2017. His 2013 Will named his close friend, Samuel Jones, as his residuary beneficiary. Mr Turner was estranged from his sister, Linda Cano, and the 2013 Will itself stated that he made no provision for her in light of her treatment of him. The 2013 Will was prepared by solicitors. There was some uncertainty as to whether Mr Turner left the solicitors’ office with the original will; ultimately, the Court found that he did. As the original 2013 Will could not be located after Mr Turner’s death, his estranged sister relied on the presumption mentioned above. If that presumption applied, Mr Turner’s estranged sister would have received the entire estate.
Samuel Jones successfully applied to the High Court to admit a copy of the 2013 Will to probate. In its judgment in the summer of 2023, the Court took into account a range of factors, including:
a. Mr Turner’s disorganised storage of documents. As the Court stated, “…the greater degree of disorganization, the greater the risk of loss or accidental destruction…”.
b. Mr Turner’s testamentary wishes, with the 2013 Will making clear the twin wish of benefitting Samuel Jones and not benefitting the estranged sister.
c. Mr Turner’s wishes remained unchanged after the 2013 Will until his death. He remained estranged from his sister, whereas he enjoyed a continuing friendship with Samuel Jones and his family (with Mr Jones helping to care for Mr Turner when his illness worsened, being an almost daily visitor).
d. There was no evidence to suggest that Mr Turner attempted to make a new will.
Storing a will with your solicitor
Ultimately, Samuel Jones’s claim was successful in the summer of 2023, around six years after Mr Turner’s death. To try and avoid the costs (in terms of stress, time and legal fees) of litigation, testators can take advantage of the secure storage of wills that solicitors typically offer. In any event, testators should leave clear instructions so that their executors know where the original will is stored.
Russell-Cooke's Trust, will & estate disputes team can assist you with succession, probate and trust disputes including will challenges.
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