The High Court has ruled that an estate be administered in accordance with a certified copy of a will against a claim of revocation of the original by destruction.

In Blyth v Sykes, the court considered how to deal with the presumption of revocation of a will by destruction when the original will cannot be found.

The ruling has reiterated the limited circumstances in which the presumption of revocation will arise, other than making another will or codicil. It also emphasises the court’s insistence on clear evidence of revocation over granting probate even if the original will cannot be found.

The facts in Blyth v Sykes

The deceased, Mrs Moore, died a widow in January 2016. The original copy will could not be located among her possessions. What was found was an envelope from her solicitors containing a certified copy of a will she had executed on 11 April 2008, an unsigned draft of the will, the solicitors’ invoice for preparing the will and a codicil to the will dated 15th October 2010.

By the certified copy of the will, Mrs Moore appointed one of her daughters (Mrs Gail Blyth, the claimant) and the claimant’s husband as her executors and trustees.

Mrs Moore’s estate was to be divided equally between the claimant, Mrs Moore’s son (William Moore), Mrs Moore’s other daughter (Debbie Sykes) and Debbie Sykes’ former husband (Leslie Sykes, the defendant).

Mrs Moore’s decision to provide for the defendant in the will was made almost 10 years after her daughter and the defendant separated. Despite this, it was not unexpected because she had continued to stay in close contact with her former son-in-law.

The will also contained a provision that if any of the beneficiaries predeceased Mrs Moore, their share of the estate would be divided equally between that person’s children.
Debbie predeceased her mother.

The claimant in Blyth alleged that Mrs Moore had revoked her will by destroying it on an unknown date after Debbie’s death because she did not want any of her estate to pass to Debbie’s children, and instead wanted her estate to be divided between the claimant, William Moore and the defendant.

If Mrs Moore had revoked the will, she would have died intestate and the claimant, William Moore and Debbie’s children would each receive a third of the estate.

The defendant would receive nothing under the intestacy rules; which would not have achieved Mrs Moore’s purported wishes and reasoning for destroying the will.

The defendant did not accept that Mrs Moore had revoked the will by destroying it. He argued the original will was lost and that the estate should be administered in accordance with its terms. Under the will, the claimant, William Moore and the defendant would each receive a quarter of the estate and the defendant and Debbie Sykes’ children would share the fourth quarter equally.

High Court decision

The judge identified three issues on the facts of this case. Could it be said the will was probably in the possession of Mrs Moore before her death? Was there clear and satisfactory evidence to rebut the presumption of revocation? If the will had been revoked, was the revocation conditional and had the condition been met?

The claim failed the first issue. The judge was not satisfied, on the balance of probabilities, that the will was in Mrs Moore’s possession for revocation by destruction sometime between 2010 when she executed the Codicil and the date of her death.

The solicitors of the deceased’s will attracted specific criticism from the judge for failing to keep adequate records relating to the location of their client’s (the deceased’s) will.

Accordingly, the judge found in favour of the defendant and ruled for the estate to be administered on the terms set out in the certified copy of the will.

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