The value of a Will – £1.2 Million?

There is a lot in the papers today about the forthcoming sale of the ‘will’ of Sir Francis Drake – written just as he set off to fight the Armada. It has been described as a will, although it reads more like a power of attorney – authorising and deputising people to take charge of his affairs ‘during the time of [my] absence’, and to do things ‘as I might do if I were personally present’. However, it would not be surprising if it were to be intended to be a will – like many people, he probably recognised that he may not return from that fight, and wanted to arrange his affairs before he went.

There are some differences between his will and a modern one – notably that it was not witnessed. It was made in 1588, long before the Wills Act of 1837 which governs modern wills and requires that there are two witnesses. Other than that though, it contains similar provisions to a modern will (albeit in slightly different language!) – it appoints his wife and brother as executors and leaves everything to them.

The will is being sold by an American dealer which specialises in the sale of rare documents, and which says that an autograph like this only comes up every 15-20 years (which gives a clue as to where the real value of the document lies!) Today all wills admitted to probate (save for a few notable examples such as Royal wills) are available on the gov.uk website, so copies are easily available to the public but the originals are lodged with the Probate Registry and not available for sale. This means that the contents of wills are available to anyone who wishes to see them, and autograph hunters have to look elsewhere.

The price tag is a hefty £1.2 million, and the seller is apparently expecting interest from historical groups and collectors. Further information can be found here.

Certified copy: Court pronounces for copy will and defies presumption of revocation

I recently acted for a successful Claimant in a probate claim to prove a copy will with an original codicil endorsed on the back. The original will could not be found. The question for the Court was whether the absence of the original will, which was last known to be in the testator’s possession, led to the presumption that the testator intended to revoke it.

The case is Whitton v Herman HC-2016-2058. It looks at the evidential questions around rebutting the presumption of revocation, and considers an alternative argument that any revocation would be conditional on the making of a new will. It is among a relatively small number of cases on this topic so is a useful illustration of these points in practice.

The testator, Stanley Herman, had made a will in 2003 leaving his residuary estate to a number of charities, the Wallace Collection, an NHS Trust, the State of Israel, and a couple of people including the Claimant. The will had been drafted by will writers. Two years later, Mr Herman made a codicil increasing the Claimant’s share of the residue. The codicil was written by hand on the back of a copy of the 2003 will. On the face of the copy will on the bottom page was written “PTO” in the same ink as the codicil was drafted.

Mr Herman had no living close family. His intestacy beneficiaries were numerous, around 35 distant cousins some of whom lived abroad. There was no evidence that Mr Herman had contact with them. Mr Herman had appointed his friend, Mr Williamson, as one of the executors. He had given custody of the original will to another friend, Mr Samuels, who lived in the same residential block. When Mr Williamson died in 2008, Mr Herman asked for the original will back and it was handed over to him by Mr Samuels. He told Mr Samuels that because Mr Williamson had died, he intended to make a new will.

On Mr Herman’s death, an original will could not be found. His flat was searched by Mr Samuels and Ms Wells, a nurse from the hospital. Mr Samuels died before the hearing, but Ms Wells gave evidence that the flat had been tidy and ordered. She found the copy will with the original codicil in Mr Herman’s bedside table with his bank statements. She described them as looking like his important papers.

The court noted that there was no evidence that Mr Herman had shown any interest in changing the provision in his will and codicil after the death of Mr Williamson.

The Court pronounced for the force and validity of the copy will. The Court found that there was insufficient evidence to upheld the prima facie presumption of revocation.

Important facts weighing against the presumption were Mr Herman’s deliberate storage of the copy will with his important papers. The Court found that he intended to give effect to the copy will by retaining the original codicil with it. The codicil was not capable of standing alone. Had Mr Herman wished to destroy the will, it would have been illogical for him to have retained the original codicil. In all likelihood he would have destroyed the codicil as well if he did not want the will to take effect. In fact, he must have wanted the provisions of the will to take effect to give effect to the codicil, a fact reinforced by his annotation “PTO” to draw attention to the codicil on the reverse of the copy will.

The Court distinguished the case from Re Jones (deceased) [1976] 1 Chancery 200 where the testator had mutilated the will to prevent it taking immediate effect and because he wanted to change the provision. In this case, the court found no evidence that Mr Herman would have wanted to benefit the intestacy beneficiaries. This was due to their lack of contact with him, and the fact that the main beneficiaries of the will included institutions and charities which it was unlikely Mr Herman ceased wishing to benefit in favour of relatives he did not know.

The Court held that if that finding was wrong, there was sufficient evidence to lead to a conclusion that any revocation was to be conditional on the making of a new will. Mr Herman told Mr Samuels that he wanted to make a new will because Mr Williamson had died. The court found that any changes to the will were likely only to have been to replace his executor. It was held that Mr Herman did not intend to revoke one will without having another in place. As no other could be found, that condition was not fulfilled.

Accordingly, the evidence was sufficient to rebut the prima facie presumption and the will was pronounced as valid.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Signing a Will

The Wills Act 1837 sets out requirements for a valid will – including that the will must be signed and witnessed. But what can you do if the will is not signed properly? Is there any way around it? There are old cases about signatures being accepted which are simply ‘X’ (probably in the days before high levels of literacy), or ‘your loving mother’, but is that still the case today?

This was the question that faced me recently when a client came to see me with her mother’s will. The will had been drafted by a will writer for a low fee. The fee did not include checking that the will had been executed properly – there was an additional £25 cost for that service. The mother had decided to deal with execution herself. Accordingly, she had arranged for two witnesses to attend and witness her signature and she had then put the will away safely.

Unfortunately, when she died and my client found the will, she noticed that her mother had not actually signed. There were two spaces by her name – one for her signature, and one for her to print her name and she had only put her name to the latter. The will contained specific bequests, and our client knew that her mother had gained peace of mind knowing that she had managed to leave her affairs as she wanted to, so she was keen to get probate of the will.

I managed to contact the witnesses, and take detailed statements from them about the circumstances in which the will was executed. Luckily, they both had a good memory of the event – being asked to attend the deceased’s house, being told that they were witnessing her will and watching her write her name out. Neither had realised that there were two spaces for her name – both thought that they were witnessing her signature when they signed.

I drew up detailed affidavits of their evidence to present to the Probate Registry, and was delighted to hear this week that the evidence had been accepted and a Grant of Probate has now been issued. Whilst there has been a happy outcome in this case, it could easily have been different – and of course the costs have now been far higher than the original £25. The lesson is to get advice on the execution of the document if you want to be certain it is done properly – and definitely seek advice if you find yourself in the position of my client, so that your case can be presented effectively to the Probate Registry.

The current Law Commission consultation on wills contains a section about being able to regularise wills where, as here, the testators wishes are clear. Click here to answer our questionnaire on the consultation – be part of our response!