The importance of making or renewing your will is often discussed. What is often overlooked, however, is the potentially disastrous implication of relatives being unable to find the original signed version on the testator’s death. If the original is lost, the starting point is a presumption that the deceased intended to revoke it. It may not always be easy to prove the contrary, particularly if there are opposing views as to what the deceased intended.

The dangers of not storing your will in a place where relatives can easily find it are demonstrated by the recent case of Cooper v Chapman [2022] EWHC 1000 (Ch). In an article originally published by Private Client Global Elite, Emma Holland and Jemma Goddard review the case.

Background to the case

Dr Cooper died on 20 July 2019. He had two children aged 16 and 14 with Ms Cooper, his ex-wife, who acted as the children’s litigation friend.

Towards the end of 2014, Dr Cooper suffered a “very sudden and catastrophic decline” in his mental health and was admitted to hospital as a psychiatric patient. He was discharged in January 2015 but continued to suffer mental ill-health for the rest of his life. By the time of his discharge, Dr Cooper’s marriage to Ms Cooper had broken down, and she began divorce proceedings in February 2015. Ms Cooper moved out and bought a new home. From around the same time, Dr Cooper ceased to have contact with his children, and in November 2017, the Family Court barred Dr Cooper from having any direct or indirect contact with them.

Since shortly after the breakdown of his marriage until his death, Dr Cooper’s partner had been Ms Chapman.

A will dated 4 June 2009 (the “2009 Will”) left Dr Cooper’s entire estate to his children, contingent on them reaching 21 years old.

However, Ms Chapman said that Dr Cooper had created a subsequent homemade will on about 27 March 2018 (the “2018 Will”), which had since been lost. Ms Chapman submitted as evidence a draft of the 2018 Will, which she claimed to have found on a computer used by Dr Cooper. Data showed that the 2018 Will was, in fact, created on a different computer on 24 January 2018, last modified and saved on 20 March 2018 and then transferred to the computer on which it was found by Ms Chapman on 4 February 2019.

The 2018 Will appointed Ms Chapman as executrix of Dr Cooper’s estate, left a £1,000 pecuniary legacy to Bolton School and the residuary estate to Ms Chapman or, if the gift to her failed, to the “Royal Manchester Childrens’ Hospital” [sic]. The document made no provision for Dr Cooper’s children, recording instead:

“I am fully aware that I have given nothing to my two estranged children… and do not wish them to receive anything from my estate. They were fully provided for during the financial settlement of my divorce from their mother and I made that arrangement with this in mind.”

Ms Chapman submitted that Dr Cooper signed the 2018 Will in the presence of two witnesses, Dorothy Hartley and James Hartley (Ms Chapman’s uncle), each of whom attested and signed the document in Dr Cooper’s presence.

The children sought to prove the 2009 Will. Ms Chapman was the first defendant, and the second and third defendants were the executrixes named in the 2009 Will.

As well as proving that the 2018 Will had been duly executed, Ms Chapman needed to establish that it had not later been destroyed by Dr Cooper, thereby revoking it. In that regard, Ms Chapman firstly pointed to the fact that the 2018 Will was made shortly before Dr Cooper died, and there had been no material change in circumstances in the interim. Secondly, she said the revocation of the 2018 Will would have benefitted the children at the expense of Ms Chapman, which is not what Dr Cooper had wanted.

The children denied that Dr Cooper or the purported witnesses had signed the 2018 Will. They pointed to various particularised matters, including Dr Cooper’s meticulous record-keeping, careful spelling and grammar (the draft will had several spelling and grammatical errors) and the fact that Dr Cooper made no provision for the children in the divorce, so it was incorrect for the document to state that he had done so.

The children also contended that even if Dr Cooper had signed the 2018 Will, Ms Chapman could not establish that he had not destroyed or intended to revoke it. They pointed in support of this to Dr Cooper having already made significant lifetime gifts of £95,000 to Ms Chapman and having nominated her as a beneficiary of his occupational pension death benefit after March 2018. The children also alleged that the relationship between Dr Cooper and Ms Chapman was not “stable, permanent or full time”. However, Ms Cooper (as litigation friend) was unable to give much useful direct personal testimony because from January 2015 onwards, she only engaged with Dr Cooper through lawyers or at court hearings.

Ms Chapman gave evidence that Dr Cooper understood that Ms Cooper’s home was put in trust for the children. (In fact, although Ms Cooper’s home was put in trust, the children were not prospective beneficiaries.) Ms Chapman also said the children would benefit from Dr Cooper’s occupational pension (again, Dr Cooper had been mistaken about this).

Ms Chapman gave evidence that Dr Cooper first raised the possibility of a new will in January 2018. Dr Cooper drafted the will, which he told her was to be a temporary measure to protect Ms Chapman and his money until such time as he and Ms Chapman could instruct a professional to prepare wills for both of them (which never happened). Ms Chapman recognised the 2018 Will as the same as the draft he prepared in January. Ms Chapman acknowledged that Dr Cooper had been very organised and methodical but said he was less so in later years.

Consideration of the issues

The court ordered a trial of three preliminary issues:

1. Whether Dr Cooper executed the 2018 Will in accordance with the formalities of section 9 of the Wills Act 1837, and, if so
2. What the contents of the 2018 Will were, and
3. Whether, in the absence of an executed original of the 2018 Will, it should be presumed to have been destroyed by Dr Cooper with the intention of revoking it.

Section 9 of the Wills Act 1837 provides that for a will to be validly executed, it must be in writing, signed by the testator (or by some other person in his presence and by his direction), intending by his signature to give effect to the will. The testator’s signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and each witness must either attest and sign the will or acknowledge his signature in the presence of the testator (but not necessarily in the presence of any other witness).

As to that issue, His Honour Judge Klein rejected the children’s contention that Mr and Mrs Hartley had not witnessed such a document on or about 27 March 2018. He accepted Mrs Hartley’s evidence in this regard, which included that she had asked Dr Cooper why he had not made provision for the children, and he responded that they had been provided for in his divorce. Mr Hartley’s evidence confirmed Mrs Hartley’s version of events on the substantive issue of whether the two of them had witnessed the 2018 Will. The judge was satisfied that the 2018 Will was executed in accordance with section 9 of the Wills Act 1837.

As to the second issue, in the judge’s view, it was improbable that a different document was executed in March 2018 on the basis that no evidence had been found of an alternative draft. The draft in question was saved only a week before the 2018 Will was executed, and its terms were almost accurately reported by Mr and Mrs Hartley.

As to the third issue, the judge acknowledged the presumption of revocation in respect of lost wills. However, on balance, having considered all the evidence in the round, he thought it improbable that Dr Cooper would have destroyed the 2018 Will with the intention of revoking it. The judge found there had been a degree of chaos at the end of Dr Cooper’s life but that he probably had a continuing wish to benefit Ms Chapman (which was consistent with him having made large lifetime gifts to her, as opposed to that tending towards the opposite conclusion) and there had been no deterioration in their relationship to suggest otherwise. The judge also concluded that Dr Cooper would have preferred to benefit Bolton School and Royal Manchester Children’s Hospital over the children, so he would have been unlikely to revoke those gifts.

The judge therefore concluded that Dr Cooper did validly execute the 2018 Will, its terms were the same as the draft submitted as evidence by Ms Chapman, and Dr Cooper did not destroy the 2018 Will with the intention of revoking it. The 2018 Will therefore stood as Dr Cooper’s last will.

Judge’s comments and analysis

As observed by the judge, this was a particularly sad case involving “the most tragic of circumstances”.

The litigation endured by Dr Cooper’s family and partner following his death and the consequential legal costs incurred will likely only have exacerbated tensions.

The case highlights the importance of safe will storage and ensuring that at least one person, ideally an executor or trustworthy family member, is made aware of its whereabouts. Where possible, instructing a professional to prepare and then store the will is the best way to avoid any such issues after death.

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