Thoughts on this testator scenario, please?

[Dev'sAd]

Testator wrote a valid will, which is stored with a solicitor.

A couple of years later, they wrote another will with some minor changes, but not dramatically different. One month later, they completely destroyed this second will, and explained in their personal diary that their intention was to retain the previous will. No trace of this second will exists, but there is mention that it had been signed and witnessed. The earlier will does still exist, and is still held by the solicitor, and they were not instructed at any time by the testator to destroy it, or told it had been revoked.

The witnesses to the second will cannot truthfully confirm that what they signed was a will - they recall the occasion, but that the author was very secretive about the document, covering it up, and only exposing the section to be signed and witnessed. They cannot say whether it was, or was not, a 'will', although circumstantial evidence (the diary) would suggest it likely was.

So, the situation is; no trace at all remains of the second will. A completed copy has not been seen by any living person. The witnesses to this likely will are not able to confirm what it was they were signing. The testator's recorded wishes are unambiguously that their intention was to retain their previous will. The solicitor holding the earlier will was not instructed of any change.

Did the testator pass away intestate? If technically so, is it challengeable? (For a number of evidential reasons, passing away intestate would have been the last thing they'd have wished.)

Thank you :-)

[PallasAthena]

This article from a firm of solicitors describes your scenario. It would appear from it that as long as the testator was of sound mind at the time of destruction it is likely to be considered a valid revocation of the second Will. And in that situation the earlier Will is valid and the testator is not considered to be intestate.

https://www.buckles-law.co.uk/blog/p...england-wales/

[atticus]

Hold on. Wills often contain a clause expressly revoking all previous wills. If the second will was validly made, then there is a clear possibility that at that point the earlier will was revoked. Once revoked it cannot be unrevoked: a new will will be needed.

This person may have died intestate.

[Dev'sAd]

Thank you, both. This will explain why every second solicitor we talk to has a different take on it! And all of them quite adamant of their opinion!

I can state categorically that the testator made their intention - by the destruction - very clear; it was to revoke that later will, and retain the previous one. Two local solicitors, each with a different client interest, both at least agree on that point.

That would seemingly fit in with, "Intentional Revocation by Destruction: Physically tearing, burning, or otherwise destroying a Will can be a legally valid way to revoke it, but only if there'’s clear evidence that the destruction was done with the intention to revoke it. Accidental damage or incomplete destruction (such as partial tearing) might not be enough for a court to consider the Will revoked."

Assuming, of course, that Buckles-Law are correct.

I'd have thought there would have been a few more test cases?

[PallasAthena]

Assuming, of course, that Buckles-Law are correct.

Yes indeed, theirs is just their opinion, other opinions are available.

Their statement of the legal status of the destroyed Will is "If a Will is destroyed with clear intent, the estate will be handled as though the Will never existed...".

If I have understood their legal thinking correctly by treating the second Will as if it never existed then its revocation of the first Will is also treated as if it were never made and therefore the first Will is not revoked and still stands.

Whether their conclusion is good law I am not qualified to say. A trip to the courts may be be needed to decide the issue.

[Pezza54]

My opinion only
If it went to court the statements by the witnesses to the second will would be crucial.
They seem unwilling to confirm that they actually signed as witnesses to a will. The testator covered up the document only exposing the signatures page
There is now no real evidence that the second will existed

[PallasAthena]

I believe it is correct that witnesses to a Will (or anything else) do not need to be told what the document is or what it contains. They are only confirming that they have seen the document signed in their presence, not what the document says.

[Pezza54]

Please read "Signing your will correctly" at www.thegazette.co.uk
"It is not necessary for the witnesses to be aware of the contents of a will, but they must know it is a will"

[Dev'sAd]

My opinion only
If it went to court the statements by the witnesses to the second will would be crucial.
They seem unwilling to confirm that they actually signed as witnesses to a will. The testator covered up the document, only exposing the signatures page
There is now no real evidence that the second will existed

The witnesses are good folk, and are simply being as honest as they can be. They simply cannot say that the document was a will, but can't recall if the author said it was. In any event, the author's own entries in their diary did relate that they had it signed by these witnesses. My take on this would be that there is evidence, 'on the balance of probabilities', that it was the will that was signed, so chances are it was a valid will, if only for a short period.

[Dev'sAd]

Thank you all for your continued thoughts.

I have to say that the very short-lived validity of the second will is likely not in great question; it would be my thought that the document signed was, most likely, that will, as the author made reference to this in their diary. But, yes, it isn't a certainty.

What I think could be of more value, however, is the 'Buckles-Will' assertion. The testator was of sound mind when they subsequently destroyed this will, and also made it unambiguous that their intention in doing so was to retain the earlier will (as the controlling document).

Does anyone have any experience or knowledge of this aspect? There is a huge moral case why the testator would not have wished to have passed away intestate.

[Pezza54]

In court the witnesses would have to confirm that they knew it was a will that they were witnessing and signing

[PallasAthena]

That requirement does not appear in s9 Wills Act 1837 though and is not in gov.uk guidance. The author of the London Gazette article linked in post #8 gives no legal source for their statement that witnesses must know the document they are witnessing is a will.

[atticus]

What does the attestation clause say?

[Pezza54]

There is a simple example of an attestation clause for a will in the article "What is an Attestation Clause in a Will? Explained in Plain English" at www.willstrustslpa.co.uk

[Dev'sAd]

Please read "Signing your will correctly" at www.thegazette.co.uk
"It is not necessary for the witnesses to be aware of the contents of a will, but they must know it is a will"

That whole section says: There must be two independent witnesses present at the same time and who must attest and sign the will

It is essential that both witnesses see the testator signing/executing the will. If one of the two witnesses does not see the actual signing of the will, the will is considered invalid. It is therefore important that the witnesses are aware of, and see, the testator signing the document. It is not necessary for the witnesses to be aware of the contents of the will, but they must know it is a will. After attesting to and witnessing the signing of the will, the witnesses must attest the will by signing and acknowledging their signature in the presence of the testator.

That is seemingly their interpretation of the Wills Act of 1837.

Qs! Is it correct?! That site appears to be Scottish - does this make a difference?

Thanks.