A Court can find that where a Will is lost the party seeking to argue revocation must prove it.
In the month of February L made a Will leaving it with her solicitors. In late May she prepared document “A” in the form of a will, and signed it in the presence of one witness. On the same day she wrote to her solicitors asking them to send her Will as she wanted to
“look it over and make some alterations.”
In early June a second person signed the document “A” as a witness. On the same day L’s lawyer posted the will as requested. L’s Will arrived at her address a week later L looked it over and returned document “A” to her lawyer, with a letter stating:
“I enclose a new will which I wish kept unopened.”
She died a week later.
Document “A” was not properly executed as a will, and could not be admitted to probate. After searching her papers the February will could not be found. Application for probate of the draft of the February Will was made but this was opposed by L’s Husband, who argued that she died intestate, as Document “A” being informal and the will of February having been revoked.
L’s Husband had to prove revocation. He argued the will of February had been in the possession of L in early June but was not among her effects after her death, therefore it must be presumed L had destroyed the will with the intention of revoking it
The Court took another view being that L was under the impression, that document “A” was a valid Will, and believed that by the execution of that document her previous will had been revoked. Therefore L destroyed that will, not for the purpose of revoking it but in the belief that she had, already revoked it and that the earlier will was then of no effect whatever. As destruction without intention to revoke is not in itself an effective revocation of a will probate ought to be granted to the February Will.
Similarly where evidence supports that a person has made it known that if they died intestate a share of his estate would go to a person who would waste the amount inherited, and has expressed the intention of making a will in favour of a specific person or group.
If evidence is provided that a Will was made in the terms discussed, and this can be corroborated, and that the deceased had a tendency to lose documents. A Court can conclude that there is a higher degree of probability that the will was lost rather than being destroyed by the deceased with the intention of revoking it.