Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss reconstruction of a will under r54 NCPR, 1987 in a case where a previous will exists but a party refuses to disclose it during proceedings challenging the validity of a later will.
Overview – Oliver v Oliver [2024] EWHC 2289 (Ch)
This lengthy judgment describes an unsettling and at times colourful set of events. It resulted from the trial of two claims relating to the will of the late William Oliver.
Claim one, which was successful, was brought by Jane – the deceased’s youngest surviving child – against her oldest sibling Rodney. It sought to invalidate a will dated 14 September 2015 on incapacity and undue influence grounds and admit to probate in its place an earlier will dated 2 October 2009. This application was brought under Rule 54 NCPR.
The second claim under the Inheritance (Provision for Family and Dependants) Act, 1975 brought by Jane and another sibling fell away following the success of claim one.
The case throws up a whole range of issues of interest to practitioners. Most of the 38 page judgment concentrates on the reasoning around the dual findings of lack of testamentary capacity and undue influence that rendered the will of 14 September 2015 invalid. We provide a flavour of the judgment here. In this note we examine HHJ Matthews’ application of Rule 54 NCPR, reconstituting the 2009 will in light of his decision on the September 2015 will.
The competing wills
The judgment confirms that William Oliver executed three wills as follows:
- 19 November 1985 – a mirror will with his wife June providing that the survivor of the two of them should be the universal legatee of the other, and in the event of the prior death of the other spouse, the entire estate should be split equally between five children.
- 2 October 2009 – the evidence before the court was that this was another mirror will in substantially the same terms as the 1985 will (one child had died so a legacy to him in the previous will was removed).
- 14 September 2015 – naming Rodney and a will writer as executors and placing the estate in a discretionary trust of which Rodney was the primary beneficiary. It left nothing as of right to any of the other children.
It is the second will above that concerns us here. It was believed to be in the custody of Rodney, but he refused to disclose its contents to the court and did not engage with the proceedings in any constructive way.
The rules for reconstructing a will
NCPR Rule 54 sets out the procedure to follow when seeking to admit a reconstituted or reconstructed will to probate in the absence of the original.
The application must be accompanied by an affidavit or witness statement detailing either:
- Evidence of the will’s existence after the death of the testator or
- The facts on which the applicant relies to rebut the presumption that the will has been revoked by destruction
The court would normally also wish to be advised of the steps taken to locate the original will, and it may require additional evidence as to due execution and accuracy of the copy will. A judge may also direct that notice be given to persons who would be prejudiced by the application.
Applying Rule 54 NCPR to the facts in Oliver v Oliver
Following a detailed analysis of the facts and relevant case law HHJ Matthews ruled that the will of September 2015 was invalid. He then proceeded – without fuss or fanfare – to allow the application under Rule 54, granting probate in solemn form to the 2009 will, as reconstituted.
In such a lengthy judgment it is of note that there is relatively little discussion of the successful Rule 54 application. HHJ Matthews accepted the evidence that in 1985 June and William Oliver made mirror wills, leaving all to the children equally after their deaths.
No solicitors were involved in the making these wills – they were effectively homemade, one child Kevin assisting his parents by downloading a suitable will precedent from a website.
These largely informal circumstances surrounding the preparation and execution of the mirror wills had no bearing whatsoever on HHJ Matthews’ ruling. He had June’s will before him, and it was enough to satisfy the requirements of Rule 54 – in spite of Rodney’s erratic and unhelpful behaviour in refusing to provide his father’s will to the court.
He was clear:
‘Notwithstanding that I have not seen the will of 2009, I am satisfied that it was properly made, and that I know all its terms.’
He then, as required, confirmed his belief that William had capacity in 2009 to make
The will and ordered that it be admitted to probate in solemn form.
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