David Rose discusses whether an unsigned draft Will can be admitted to ProbatePark Square Barristers
It is generally understood that in order to be valid, a Will must be signed in the presence of two attesting witnesses present at the same time – and that the original must be produced after the testator’s death in order to obtain a grant of probate. However, neither of these is strictly true. Under Section 9 of the Wills Act 1837 a Will is valid if the testator ‘acknowledges’ his previously-executed signature on his Will.
However, s.9 does not define what form such ‘acknowledgment’ must take. In Cooper v Chapman & Others  EWHC 1000 (Ch) it was held that even a hand gesture towards a pre-signed Will, without any verbal acknowledgment, can be sufficient to satisfy s.9. Furthermore, although where an original executed Will cannot be produced after the testator’s death there is a presumption that he destroyed it with the intention of revoking it, little is now required to displace that presumption.
In Cooper it was held that the absence of any evidence there had been a change of circumstances between the making of the Will and the testator’s death was sufficient to rebut the presumption. Thus, a copy of a draft (unsigned) Will found on the testator’s computer after his death was entitled to be admitted to probate (subject to issues of testamentary capacity being resolved).
A major part of David’s practice relates to probate and inheritance matters, including those with an international dimension. He has a particular expertise in dealing with contentious probate cases, especially those concerning challenges to wills upon the grounds of lack of testamentary capacity and undue influence, in addition to those relating to claims against estates based upon constructive trust and proprietary estoppel arguments and cases concerning the interpretation of Wills.
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