Packer v Packer [2025] EWHC 461 (Ch) – the importance of valid execution

The facts of this case concern a dispute regarding the Estate of Stephen Packer (“Stephen”), between Debra Packer, the Claimant and widow of the Deceased (“Debra”), and Lynn Packer, the Defendant and sister of the Deceased (“Lynn”). Stephen and Debra had no children, and so Debra would inherit Stephen’s Estate in accordance with the intestacy rules.

It was Debra’s case that Stephen died intestate, and Lynn argued that Stephen made two Wills, one in 2017 and one in 2022, by which she was appointed as the executrix and a beneficiary. The original wills could not be found (nor could a signed copy). At the end of the trial, it was accepted by both parties that it was unlikely the 2017 Will was ever executed, and so this case referred solely to the validity of the purported 2022 Will.

The general legal position is, where the original Will is present, and regular on the face of it and apparently duly executed, there is a presumption of due execution. There is generally no presumption of due execution where a will cannot be found. In this case, the judge found that due execution in accordance with section 9 of the Wills Act 1837 needs to be proved without any favourable presumption.

There is a second presumption relevant in this case, which was the presumption of revocation. Where a will has been duly executed but at the date of death cannot be found, there is sometimes a presumption of revocation (particularly where the will has been in the testator’s possession).

In his judgment, the judge discussed these presumptions and their rebuttal in detail.

In the case, it was up to the court to decide the following issues:

1. Was a draft Will created by Lynn on the instruction of Stephen in the form of the 2022 Will, which she seeks to propound?
2. If so, was the 2022 Will executed in accordance with section 9 of the Wills Act 1837?
3. If so, where only a draft of the 2022 Will has been produced following Stephen’s death, is the presumption of revocation in favour of an intention to destroy the 2022 Will, to be rebutted?

In relation to issue one, the judge sought to highlight that Stephen did not demonstrate any real intention to formalise his testamentary wishes, based on the evidence provided. He was reluctant to make a Will, even despite his terminal cancer diagnosis and it was in fact both Debra and Lynn who encouraged him to sort it.

Within his medical records in January 2022, when his cancer became terminal and palliative care was discussed, his doctor noted that he would like to make a Will ‘at some point’. The 2022 Will was then drafted by Lynn, but the judge did not feel confident that what Lynn typed in the 2022 Will was in accordance with Stephen’s instructions or intentions. The judge reiterated Stephen’s apparent lack of enthusiasm towards making a Will and concluded that Stephen’s wish was to die intestate.

Turning to the second issue, the judge took issue with Lynn’s evolving evidence surrounding the execution. Initially, Lynn alluded to a possible Will, she then suggested the Will was with a solicitor. Lynn’s story quickly progressed to Lynn helping create the Will, and then advising that there were witnesses, but not confirming who, to then finally confirming the witnesses were in fact her partner and son. The judge recognised the possibility that Lynn deliberately did not wish to advance the story early on, as she knew the Will had to be witnessed by non-family members, after carrying out research.

The judge also pointed out that Lynn had previously recommended to Stephen to have independent witnesses for the 2017 Will, so questioned why she didn’t suggest the same for the 2022 Will. In addition to this, Lynn then stated that she had carried out research after the 2022 Will was signed and recommended to Stephen for this to be resigned by independent witnesses. The judge however found this improbable and neither Lynn’s partner nor son referred to this in their evidence.

Furthermore, the judge took issue with Lynn’s partner’s oral evidence as he stated in his statement that he asked Stephen if he was happy with the Will after it was signed, however in court, he advised that he asked Stephen whether he was happy with the document before he signed it, as he does with his clients as a financial advisor. The judge was therefore not satisfied with their evidence and concluded that the Will had not been validly executed.

Finally, whilst the judge had disposed of the case at issue two, he explored the third and final issue for completeness. The judge questioned whether the presumption of revocation applied, had there been due execution, so explored the possibility of the Will being signed and destroyed, disposed of by Stephen or lost.

The judge stated that the most likely event would be that the Will was destroyed by Stephen because he was reluctant to finalise the execution. Given the reserved, shy man he seemed to be through the evidence provided, his quiet way of dealing with the matter was to leave his estate to the rules of intestacy. Therefore, the presumption of revocation was not revoked.

Final comments

The judge favoured the evidence of Debra and pronounced against the validity of the 2022 Will, therefore granted Letters of Administration of Stephen’s estate to Debra.

Where a person does leave doubt as to their testamentary intentions, the burden of proof bears the party trying to prove that due execution was established. Since the party with the answers is deceased, only secondary evidence can be relied on. This will likely include parol (oral) evidence, which is inevitably affected by human memory, so it can become a guessing game for the court, as to Stephen’s intentions.

Much turned on the inconsistencies in the case advanced by Lynn. Lynn acted in person, only instructing a barrister on a direct access basis for trial. Had she sought early legal advice the outcome may have been different, or, more likely, the case would have been settled at a much earlier stage, avoiding the costs, stress, and risk of trial.