Legal News

High Court admits missing Will to probate (Re Cooper deceased (probate) (Cooper (a child) v Chapman))

Published on: 16 May 2022
Published by: LexisPSL
  • High Court admits missing Will to probate (Re Cooper deceased (probate) (Cooper (a child) v Chapman))
  • What are the practical implications of this case?
  • What was the background?
  • What did the court decide?
  • Case details

Article summary

Private Client analysis: A draft Will found on the deceased’s computer after his death could be admitted to probate as his last Will in circumstances where the executed Will could not be located, and the fact that it could not be located did not mean that it should be presumed to have been revoked by the deceased. The court determined preliminary issues in a probate trial, where it concluded on the evidence (which included the evidence of the attesting witnesses to the Will and expert evidence as to the date that the computer file had been created) that the draft Will had been executed by the deceased and attested by relatives of the First Defendant. While the deceased had not signed the Will in the presence of the witnesses, he had ‘acknowledged’ his signature in their presence by gesturing towards the Will and watching them sign it. This was sufficient to satisfy section 9 of the Wills Act 1837 (WA 1837). The court also found that the Will should not be presumed to have been revoked by the deceased as a result of the loss of the original Will in circumstances where there had not been any change in the deceased’s personal circumstances between the making of the Will and his death approximately 18 months later. Written by Elis Gomer, barrister at St John’s Buildings and counsel for the First Defendant. or take a trial to read the full analysis.

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