PT-2023-BRS-000112 - [2025] EWHC 2633 (Ch)

Despite her position on the pleadings, in the skeleton argument prepared by her solicitors for the trial, the first defendant now accepts, in the light of the expert report of Prof Alistair Burns (acting as a single joint expert), that the deceased had testamentary capacity when she made the 2014 will. Secondly, because of that, the first defendant is now neutral as to whether the deceased knew and approved of the contents of the 2014 will when she signed it. Thirdly, despite what the pleadings say, the first defendant does not now pursue a positive case of undue influence. Fourthly, the first defendant now accepts that the original of the 2014 will may have been lost after the deceased died. In that case any presumption of revocation by the deceased by deliberate destruction would not apply. Accordingly, she is neutral as to whether the claimant is able to satisfy the court as to how and when the original of the 2014 will came to be lost.

In these circumstances, if I accept the unchallenged expert evidence of Prof Burns, then I will find that the deceased did have testamentary capacity at the time of making the 2014 will. Secondly, if I find that the deceased did have testamentary capacity at that time, and that the will was duly executed in accordance with the law, the presumption of knowledge and approval of the contents of the will by the deceased will apply. In the absence of a successful challenge by the first defendant, the claimant will have satisfied the burden of proof that otherwise lies on her to prove such knowledge and approval.

Thirdly, the burden of proving undue influence in a probate case falls upon the party so alleging: see eg Re Edwards [2007] EWHC 1119 (Ch), [47]. Since the first defendant does not now pursue such a case, that issue simply falls away. Fourthly, if the claimant establishes that the original will was in existence at the time of the death, but was lost subsequently, there can be no question of a presumption that the deceased herself destroyed it with the intention of revoking it, and there is no other evidence of a revocation. As I have said, mere loss of the original will does not prevent a grant of probate.