Packer v Packer: Highlights of the Importance of Will Validity

The recent case of Packer v Packer [2025] EWHC 461 (Ch) highlights the importance of a Will being validly executed.

The High Court recently handed down judgment in relation to the estate of Stephen George Packer, finding that he had died intestate (without a Will) and, for the first time in decades, finding, albeit obiter, that the presumption of revocation was not rebutted.

Where an original Will is present at the time of death and appears regular on the face of it, 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 was a further presumption in this case – the presumption of revocation. Where a Will has been duly executed but cannot be found at the date of death, there is sometimes a presumption of revocation (particularly where the Will has been in the testator’s possession).

Background

Stephen Packer died on 5 July 2022, aged 65, having been diagnosed with cancer in 2010 and ultimately becoming terminally ill in early 2022. He died, leaving a wife, Debra Packer, but no children. Debra and Stephen’s sister, Lynn Packer, cared for him jointly and appeared to have a good relationship up until his death, when the uncertainty as to his affairs became apparent.

Debra’s position was that despite her attempts to encourage and facilitate Stephen to prepare and execute a Will, he did not do so on the basis that he was confident it would all pass to Debra on his death. Debra also stated that Stephen did not wish to incur legal costs in preparing a Will.

Conversely, Lynn’s position was that Stephen had asked her to assist him with preparing a Will in February 2022 and that whilst the original could not be located, the draft should be admitted to Probate. Prior to the final hearing, Lynn noted that she had also assisted Stephen with a Will in 2017, but did not seek to pose this as an alternative, as there was no supporting evidence that it was ever executed.

The terms of the purported 2022 Will meant that, save for a few pecuniary legacies, Debra would have a right to reside in Stephen’s home, and the residuary estate would be divided equally between Debra and Lynn.

Judgement

It was found that Lynn’s written defence posed that the 2022 Will met the requirements of s.9(1)(d) Wills Act 1837 and thus was valid on the basis that Stephen was to seek independent witnesses for execution. It was deemed that Lynn had not posed that the Will was also witnessed, attested, and signed by family members, although this was her position at trial, and her counsel confirmed in closing submissions that Lynn was not posing the Will’s validity based on independent witnesses. Notably, counsel for both parties acknowledged it was unlikely that Stephen would have sought the assistance of independent witnesses as he was reluctant to instruct solicitors and had no friends outside of his family. The lack of proper pleadings, with no application for amendment, was sufficient for the Judge to dismiss the matter. However, the unpleaded position that the 2022 Will was witnessed by the family members was duly considered.

It was found, obiter, that Lynn had still not found the 2022 Will to be validly executed as it seemed more likely than not that Stephen had not signed the Will in the presence of family members as posed, but instead merely took the draft away to be executed and witnessed by independent witnesses. However, it was held that the evidence did not support the stance that Stephen would have followed through with executing the document in accordance with the necessary formalities.

The Judge then dealt with the presumption of revocation. It was found that this presumption had not been rebutted. It was said that Stephen likely believed that he was in possession of a document, believing it not to be a valid Will, and so he likely destroyed it as he did not wish to execute a Will. Thorough searches of the property had been conducted, and no Will had been found, save for an incomplete DIY precedent Debra had encouraged him to complete many years prior. The Judge further commented that Stephen’s wish to die intestate matched the position that he likely knew he had not received his share of his mother’s estate. So, by dying intestate, he would quietly deal with the issue as Lynn would keep his share of their mother’s estate, and Debra would receive his own estate.

The court subsequently pronounced against the validity of the 2022 Will, with Stephen being deemed to have died intestate. It was also said that, on the unusual facts and in a move away from the typical trend of the Court finding the presumption of revocation to be rebutted, destruction of the 2022 Will was more likely than mere loss.

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