We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
Insights
20/03/2025
Following a three-day trial, Hugh Sims KC sitting as a Deputy High Court Judge (“the Judge”) handed down judgment in Packer v Packer [2025] EWHC 461 (Ch) (“the Judgment”). Ollie Murrell, instructed by Bailhache Law, acted for the successful Claimant.
At the heart of the case was a mystery drama appropriate to the fiction of Agatha Christie: the case of Stephen Packer’s missing wills.
Put in less dramatic terms, did the late Stephen Packer die intestate, as his widow, Debra, claimed; or did he validly execute a will during his lifetime, as his sole surviving sister, Lynn, claimed – despite that no such will could be found after his death?
The case serves as a rare example – the first in 18 years – of a successful application of the presumption of revocation of a will, and Mr Sims KC has extended the scope of the presumption of due execution.
Stephen and Debra married in 2006. They lived in their marital home, Renditt, in Bristol, which Stephen bought in his sole name. Unlike the testator at the heart of Agatha Christie’s missing will story, Stephen’s only real friends were his family. He was a parsimonious man who did not like to spend money unnecessarily, not least on solicitors. Stephen was diagnosed with cancer in 2010, from which he died in July 2022.
Stephen’s sister and the Defendant, Lynn, spent much of her working life living abroad; despite having only periodic contact, she and her family had a good relationship with Stephen. Lynn returned to the UK at the start of 2021, following the death in June 2020 of her and Stephen’s mother, Joan.
Before Stephen’s death, Debra and Lynn had a good relationship. As is so common, their friendship quickly soured after Stephen’s death largely due to Lynn’s perception that Debra was failing to honour his wishes and Lynn’s retention of Joan’s estate. The fall-out took various forms in the aftermath of Stephen’s death: Lynn’s entered a caveat in Stephen’s estate just days after his death, followed by varied threats and accusations.
After Stephen’s death, Renditt was searched several times: no will, executed or draft, was found. Believing Stephen died intestate, although contrary to Lynn’s assertions, Debra applied to the High Court for letters of administration.
Unknown to Debra, Stephen had twice asked Lynn to help him prepare a will: once in December 2017, and once on 21 February 2022. Unsigned drafts were, after some 12 months of asking, produced by Lynn. There was no evidence (or case) that the 2017 draft was ever executed by Stephen. Rather, Lynn sought to propound the 2022 draft (“the 2022 Will”).
Lynn’s ultimate position was that Debra had likely found the two wills when she searched Renditt after Stephen’s death, and upon realising they did not leave everything to her, destroyed them.
The dispute then grew further heads: firstly, Lynn alleged Debra had forged Stephen’s signature on a TR1 form which transferred Renditt into their joint names in 2012; secondly, Debra alleged a lifetime disclaimer by Stephen of his share of Joan’s estate, in Lynn’s favour, was forged by Lynn. Both disputes are/were the subject of separate proceedings, and the Judge considered them only to the extent they informed the will dispute.
At trial, Lynn’s case and evidence was that she typed the 2022 Will up on her computer, printed it off, and gave it to Stephen, who signed it before it was then signed and attested in Stephen’s presence by two of Lynn’s family members: Clive, her long-term partner, and Giles, her son. Immediately after this, Lynn undertook some research online and advised Stephen that family members could not witness a will, and he therefore needed to take the will to be independently witnessed. Clive and Giles gave identical evidence.
However, Lynn’s pleaded case was that Stephen signed the 2022 Will before taking it away to be witnessed by unknown third-party witnesses – not that it was signed and attested by Clive and Giles in his presence. The fact she was a litigant in person did not justify the court interpreting her defence as disclosing a case that was simply not set out; nor was an application made to amend after she was legally represented ([110]-[122] of the Judgment).
However, the Judge went on to consider the substance of the case, on two primary issues.
Absent the executed 2022 Will, Lynn had to rely on parol evidence of due execution ([10] of the Judgment).
The difficulty for Lynn, as anticipated by the gap between her pleaded case and case at trial, was the version of events at trial was another (indeed, the fifth) iteration of a case which had continually shifted since Stephen’s death. In the days post-death, Lynn said she had helped to prepare a will for Stephen which he had taken to be independently witnessed – witnesses which could not be located. In the subsequent months, post-issue and up to trial, Lynn’s position variously shifted, each time apparently getting closer to contending for a s.9-compliant execution. The final case as articulated at trial was an evolution of and in important respects inconsistent with these earlier iterations ([125]-[127]).
Even if that inconsistency could be explained, Lynn’s evolved case faced problems viewed against the Judge’s findings as to Lynn’s character, and internal and external inconsistencies of Clive and Giles’ evidence ([128]-[131]).
The Judge therefore rejected it. He found it more likely that Lynn handed Stephen the draft will, created by her, and encouraged him to take it to be independently witnessed. It was not signed at all on 21 February 2022. Lynn did not advance (and there was no evidence to support) a case that Stephen proceeded to have the will witnessed by third parties. Accordingly, Lynn’s (unpleaded) case on s.9 compliance failed on the evidence ([132]).
Assuming the 2022 Will was validly executed by Stephen on 21 February 2022, the inevitable question arose: what happened to it? Even if validly executed, the question still arose: what happened to the drafts! The law has developed a presumption in such cases where the court cannot answer this on the evidence: the presumption of revocation, effectively summarised by the Judge at [99]-[107]:
The Judge’s conclusion was based on the “unusual feature” of the case: even if Stephen had created a valid will, he was nevertheless told by Lynn that it needed to be independently witnessed. In other words, the document he was given was, as far as he was concerned, incomplete. When viewed alongside Stephen’s reluctance to make a will and spend money on solicitors, it was more likely he destroyed it himself. Given the thorough searches made of Renditt by Debra and others, and the findings made about the custody Stephen kept of important documents, the simple loss of the will was not the likely scenario ([135]-[141]).
Not only was the presumption of revocation unrebutted, but the Judge was prepared to reach the same conclusion on the facts.
The decision is significant for its treatment of the two evidential presumptions engaged by the case: due execution and revocation.
It might be thought that such a presumption could have no application in circumstances where the will is lost. This (as the Judge observed) is the view of the learned editors of Theobald on Wills. The presumption is raised by facts suggesting the regularity of the will on its face, i.e. by the presence of an attestation clause accompanied by signatures. Certainly, the presumption’s strength varies with the circumstances, and will naturally be weaker where the relevant document does not contain a full or proper attestation clause; but to suggest it might apply in the absence of any written document appears, on the face of it, a surprising proposition.
Yet this is precisely the position endorsed by the Judge, obiter, at [96(c)-(d)]:
“there may be features of a case which show an intention to do some formal act, coupled with evidence which is consistent with an intention to have carried that into effect, but which falls short of producing the actual will, which may still support the application of the presumption; but in order for the presumption or inference to have any force it will be necessary to show an intention to do some formal act and the evidence adduced must be consistent with an intention to have carried that into effect.”
Probate practitioners will no doubt have their own view on that.
The Judge endorsed the submissions on behalf of Debra, and the view expressed in Theobald, that the presumption applies even where the first person to search the testator’s repositories is someone whom a finding the will was revoked would favour. A finding of fraudulent abstraction by the would-be beneficiary must be proved on the facts ([103]).
Notably, Packer v Packer is the first time that presumption has been applied obiter and gone unrebutted since the case of Broadway v Fernandes [2007] EWHC 684 (Ch), [103]. The last case we can find in which it formed part of the ratio was decided almost a century ago: Barkwell v Barkwell [1928] P 91, a decision of Lord Merrivale sitting in the old Probate, Divorce and Admiralty Division.
So, what does all this tell us? Most of all: the importance of pleading, which can often be overlooked in probate claims. Packer v Packer is also a reminder of how presumptions still hold providence. The necessary absence of the one person who actually knows the truth, the deceased, means that factual presumptions continue to play a key role in probate claims whilst their application has faded in other areas of the law. Even so, as the Judgment shows, judges should still be invited to make findings on the likely facts, rather than just fall back on presumptions.
Ollie Murrell acted for Debra Packer, the successful Claimant. Ollie was assisted throughout the trial by current pupil, Zachariah Pullar.
Sign up
To be kept up-to-date with our latest news and future events, please complete the short form.
A member of the clerking team will help you resolve your request.
© 2025 - Guildhall Chambers | Barristers regulated by the Bar Standards Board.
Website designed and developed by tela.
