Packer v Packer case: will presumptions and the importance of witness evidence

The recent case of Packer v Packer revolved around a dispute between a testator’s widow and his sister as to whether he had died intestate. 

This case highlights the importance of how witnesses come across when giving evidence at trial and how this can affect the outcome of legal proceedings. It also considers two important concepts often relied upon when it comes to disputed wills: the presumption of due execution and the presumption of revocation of a will.

In this article we provide a background to the case, explore the questions that were raised at trial and reveal the court's decision.

Background of the case

The testator’s sister claimed that her brother had made a will a few months prior to his death, which she said she had prepared for him on his request, which provided for the testator’s residuary estate to be split equally between the sister and his widow. An executed copy of the will was never located amongst the testator’s possessions. The sister therefore relied on photographs of the draft will as well as oral evidence given by her partner and son, who claimed that they had witnessed the testator executing the will. 

The testator’s widow on the other hand contended that her husband had never executed the will and therefore his estate should pass in accordance with the intestacy rules which, in the circumstances, would result in the entire estate passing to her. 

What were the questions raised at trial?

The questions referred to the judge at trial were threefold:

1. Whether the will had in fact been prepared by the testator’s sister on his instruction

The judge concluded that the draft will likely was prepared by the sister on the request of the testator, but whether he ever had any intention of actually executing the will was unclear. 

2. Whether the will had been validly executed by the testator in accordance with the Wills Act 1837

The judge also rejected the presumption in favour of due execution. This provides that, if a will appears to be properly executed on its face, it should be presumed to be validly executed unless there's strong evidence to the contrary. The judge rejected the presumption in this case on the basis that the testator had for a long time been reluctant to make a will or instruct a solicitor to assist him in doing so. 

The judge also rejected the oral evidence given by the testator’s sister, her partner and her son, finding that their evidence was inconsistent and taking into account their financial interests in the claim. 

The judge concluded that the testator likely never took the necessary steps to execute the will in accordance with the requisite formalities. Rather, he concluded that once the will had been prepared, the testator was encouraged to have the will witnessed independently but that he never followed through with this. 

3. Whether the ‘presumption of revocation’ should apply in the circumstances 

This presumption applies when a will is known to have been made by the testator, and to have been in their possession prior to their passing, but cannot be located after their death. In such cases, it's presumed that the testator intentionally destroyed the will before their death, thereby effectively revoking it.

The judge held that, even if the will had been properly executed, which he held it had not, the presumption of revocation would apply in the circumstances as no executed version of the will was found amongst the testator’s possessions. Therefore, the will would no longer be valid even if properly executed previously, and the estate would therefore pass in accordance with the intestacy rules in any case.

There were two additional sub-disputes that arose during this case which were addressed within the judgment:

1. There was an allegation that the testator’s widow had forged the testator’s signature on some property transfer documents, which had the effect of transferring their marital home into their joint names. Although the judge was not asked to make a declaration in respect of the property ownership dispute, the judge nevertheless considered its impact in respect of the will dispute. The judge found no evidence that the testator’s widow had acted fraudulently in respect of the property transfer.
2. The sister claimed that the testator had signed a disclaimer in relation to his inheritance from their late mother’s estate. The testator’s widow sought to contest this through separate court proceedings. However, the judge in that claim held that it could not proceed until the issues concerning the testator’s estate had been resolved.

What did the court decide?

The judge surmised that the testator wanted his entire estate to pass to his widow, having already passed up his share of their mother’s estate in favour of his sister. The judge concluded that, on the balance of probabilities, the testator had likely believed the will previously prepared by his sister was invalid and consequently disposed of the will, knowing that the rules of intestacy would result in the entire estate passing to his widow. 

The judge pronounced against the validity of the will and ordered that the testator’s widow be granted letters of administration in respect of the estate. 

A key lesson to be learnt from this case is that, where there is a lack of documentary evidence to support a claim, compelling witness evidence can be the ‘make or break’ factor that influences a judge’s decision and the ultimate outcome. 

A copy of the judgement can be found here. For further information, or if you require assistance with a similar will dispute, please contact our disputed wills and trusts team.