Following the death of a family member, a missing will can lead to significant challenges for the personal representatives; and compound the distress of grieving relatives.
The recent case of Packer v Packer [2025] EWHC 461 Ch illustrates the importance of involving solicitors when considering making a will, ensuring records are kept and minimising the risk of costly litigation.
The wills and probate team at mfg Solicitors have years of experience advising clients on wills and trusts.
To be valid, a will must comply with the requirements of s9 of the Wills Act 1837. In particular, it must be signed by the testator and attested by two witnesses in the testator’s presence.
Fall out
Stephen Packer was 65 when he died from terminal cancer in 2022. His wife, Debra, and his sister, Lynn, had cared for him during his illness and enjoyed a close relationship. Sadly, the sisters-in-law fell out following Stephen’s death over his estate.
They blamed each other for the misunderstandings, though it emerged that Stephen himself had said different things to them as to what should happen to his estate.
Debra claimed that though she had attempted to get her husband to make a will, he declined because he was careful about money and didn’t want to spend money on solicitors - and because she would inherit everything anyway.
But Lynn claimed she had helped Stephen make a will shortly before his death. She produced a photograph of a draft will she apparently created at his request. Under the terms of the purported will, Lynn and Debra would inherit the residuary estate in equal shares.
Proving execution
Where an original will appears on its face to be properly executed in accordance with s9 of the 1837 Act, there is a presumption of due execution. If no will can be located, as in this case, the party claiming there was a valid will must prove their case.
The court found that Lynn was unable to prove on balance that Stephen had executed a will. Different explanations had been given by both women as to who had witnessed the will; and the court found Stephen had no settled intention to formalise his dying wishes in a will.
The more likely scenario, the judge decided, was that he had been encouraged to take the will to be witnessed independently, without any signatures being placed on it - but did not actually go ahead. In fact, he probably disposed of it.
Unusually, the principle of the presumption of revocation was raised in the alternative. Where a will has been duly executed but it cannot be found on death, there may be a presumption in favour of revocation (probably destroyed). Lynn argued that the presumption of revocation should be rebutted, however the judge found that on the “unusual facts” the evidence actually reinforced the presumption of revocation.
Stephen had therefore died intestate and Debra, as his surviving wife, would inherit his entire estate.
What does this mean?
The case of Packer v Packer demonstrates the importance of taking legal advice from experienced solicitors when considering making a will. Had professionals been involved, a proper record of his intentions and any subsequent execution would undoubtedly have prevented any litigation.
Also, the cost of making a will would have been minimal compared to the legal costs of the case.
Get in touch
For specialist advice about making a will, email Sophie Shakeshaft at sophie.shakeshaft@mfgsolicitors.com, or call us on 0121 2367388.
If you are involved in a wills and probate dispute, please contact our expert Contentious Probate team by filling out our Contact Form or calling on 0845 55 55 321.
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