Administration of estates - rebuttable presumptions - revocation - wills - loss of original will - grant of letters of administration

Michael Neil Wren v (1) David Ian Wren (2) Christine Ann Gramegna: ChD (Mr Justice Rimer): 8 September 2006


The claimant (M) sought the revocation of the grant of letters of administration obtained by the defendants (D), and the proof in solemn form of the copy of a will.


D were M's siblings. After the death of their father (P), D had obtained a grant of letters of administration of his estate on the basis that he had died intestate and that his estate was equally divisible between them and M. Almost a year later, M claimed to have found a copy of a will made by P.


The original copy was subsequently lost or destroyed, but M produced a copy of the original copy. The original will had not been found, and by the copy P purportedly left his stocks and shares to D and the residue of his estate to M. M had lived at P's property with him.


After P's death, D had obtained a suspended order for possession of that property. M and P had been very close, but P and the first defendant's relationship had not been a close one. P and the second defendant had been estranged. M claimed that the first defendant had stolen the original will from P's home. D argued that the alleged will was a forgery; alternatively, it had to be presumed that the original will had been destroyed with the intention of revoking it, since it could not be found after P's death.


Held, while there were some unsatisfactory features about the evidence relating to the discovery of the original copy of the will, the evidence of attesting witnesses suggested that the copy-will was a copy of a will that had been genuinely executed by P. The copy-will was a genuine copy of the original will.


M's claim that the original will had been stolen was unfounded.


The evidence pre-dating P's statements as to his testamentary intentions was of little weight in the circumstances. In principle, in most cases, it was the post-will statements of intention that were likely to be of primary relevance to a consideration of whether or not the presumption of destruction with an intention to revoke had been rebutted. The evidence was inconsistent with any notion that P had ever intended to revoke his will. M had discharged the burden of rebutting the presumption that P had destroyed his will with the intention of revoking it. The original will had been destroyed or lost by accident.


An order revoking the grant of letters of administration and pronouncing in favour of the copy will was made.


Judgment for the claimant.


Ian Clarke (instructed by Alan Mann & Co) for the claimant; Colin Challenger, David Harris (instructed by Bretherton & Co) for the defendants.