Does the use of a copy Will and original codicil, in the absence of the original Will, presume that the testator intended to revoke the original Will?
In Whitton v Herman 2016, the argument was considered that any revocation would be conditional on the making of a new Will. The testator, Mr Herman, made a Will in 2003, drafted by Will writers, that left his estate to a number of charities, organisations and individuals, one of whom was the Claimant.
In 2005, Mr Herman added a codicil to the back of the original Will that increased the Claimant’s share. ‘PTO’ was written on the copy will in the same ink as the codicil.
Mr Herman gave custody of his original Will to a friend Mr Samuels but when one of his executors, a Mr Williamson died in 2008, Mr Herman asked for the Will back, informing Mr Samuels that he intended to make a new one. However, on Mr Herman’s death, the original Will could not be traced but the copy Will and codicil were found on his bedside table with the rest of his important papers.
The Court found no evidence that Mr Herman had shown any interest in changing the provision of his Will and codicil following Mr Williamson’s death, and held that the copy Will was valid and could be enforced as there was insufficient evidence to presume the intention to revoke it. The Court found that any changes that Mr Herman may have intended when he took back possession of his Will would only have been to replace his executor. It was held that Mr Herman did not intend revoke one Will without having a replacement and no such document could be found.
