The Missing Will - Cooper v Chapman 
The recent case of Cooper v Chapman (2022) resulted in a somewhat remarkable judgement regarding the validity of a will.
More particularly, an electronic copy of a draft will, which was allegedly printed and executed in the presence of witnesses, has been accepted by the High Court as valid despite there being no signed version or physical copy of the will, and was therefore entitled to be admitted to probate.
This case raised many important issues, including the attestation of a will, the proper interpretation of section 9 of the Wills Act 1837, and the presumption of revocation by destruction.
Background to the Case
Dr Steven Cooper (‘the deceased’) died unexpectedly in July 2019. He was survived by his two children and his partner, Ms Chapman, who are the claimants and defendant in this case, respectively.
The deceased had been married for thirteen years to Sara Jane Cooper (‘Ms Cooper’), the mother of his two children. This marriage ended in divorce in 2016. The deceased had then begun a relationship with Ms Chapman in April 2015, having been childhood friends.
The deceased suffered for many years from poor physical and mental health. In fact, the deceased suffered a sudden and catastrophic decline in his mental health in November 2014, which culminated in him being admitted to hospital as a psychiatric inpatient.
The deceased and Ms Cooper’s marriage broke down shortly after the deceased was discharged. This caused little to no contact with his children and in November 2017, the Family Court barred the deceased from having any direct or indirect contact with them.
The deceased made a will in June 2009 whilst still married to Ms Cooper. This will left his estate to his two children, contingent on them reaching the age of twenty-one years. It was this 2009 will that was submitted for probate. However, Ms Chapman made a counterclaim, asserting that the deceased had made a homemade replacement will in March 2018, which revoked the 2009 will.
The 2018 will, incidentally, left almost all of the deceased’s estate to Ms Chapman, with no provision made for the two children. The deceased recorded that he was fully aware that he had given nothing to his children and that they had been fully provided for by the financial settlement made in the divorce. Ms Cooper disputed this.
Ms Chapman claimed that the 2018 will had been drafted by the deceased, printed, and then signed in March 2018 in the presence of two of her relatives, who acted as witnesses. The original copy of the will had since been lost. The only remaining trace of this will was a draft found on the deceased’s computer. IT experts acting for both sides were instructed to examine the file where the deceased’s will was saved. Both agreed that the document was created in January 2018, amended in March 2018, copied to another computer in February 2019 and remained unaltered since.
The original executed will was never found. However, Ms Chapman contended that the 2018 will was a valid will which fully satisfied the requirements of s.9 of the Wills Act 1837. The two witnesses to the 2018 will also confirmed her account of events.
For completeness, section 9 of the Wills Act 1837 states the following:
Signing and attestation of wills
- No will shall be valid unless—
- it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
- it appears that the testator intended by his signature to give effect to the will; and
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- each witness either—
- attests and signs the will; or
- acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
The judge concluded that, on the balance of probabilities, the 2018 will was valid. Further, he found the witnesses of the 2018 will to be genuine and that it was improbable that they would perjure themselves for no personal benefit. He concluded the document that was witnessed was most likely the deceased’s will and that it was therefore correctly executed and attested.
The judge further decided that the deceased, most probably, did not want to revoke the 2018 will, mainly because nothing occurred after March 2018 to change the perspective of the deceased and that he had a continuing wish to make a significant testamentary provision for Ms Chapman. The likelihood was that the deceased probably thought of the 2018 will as temporary until the time came for him to obtain a professionally drafted will.
On the basis of the same, the judge found the 2018 will had been validly executed in accordance with the 1837 Act and should be admitted to probate.
It is generally thought that a valid will must be signed in the presence of two attesting witnesses, present at the same time, and that the original must be produced after the testator’s death in order to obtain a Grant of Probate.
This case highlights that neither of these points are strictly true.
Section 9 of the Wills Act 1837 states that a will is valid if the testator ‘acknowledges’ their previously executed signature on their will, and not that they actually have to sign the document in front of the witnesses. Further, the Act itself does not define what form the ‘acknowledgement’ must take. This case shows that a gesture made by the deceased towards a pre-signed will, without any verbal cues, is sufficient to satisfy the requirements of section 9 in that the ‘signature is made or acknowledged by the testator’.
Further, this case confirmed that where an original executed will cannot be produced after the testator’s death, there is a presumption that it was destroyed with the intention of revocation. This case indicates, though, that the evidential burden required to displace and rebut this presumption is lower than perhaps previously thought.
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