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Head of Chancery, Christopher Jones was instructed by Michael Brierley of Everys Solicitors to represent Josephine Oakley at trial in a case of revocation by destruction and capacity (Crew v Oakley [2024] EWHC 2847 (Ch)).

The case concerned whether or not Carry Keats had testamentary capacity to revoke her will by destruction, and whether the act of tearing it through was sufficient to amount to revocation in accordance with section 20 of the Wills Act 1837. If the Court found that she had capacity and had done enough to fall within section 20, then her estate would pass by intestacy to her sister Josephine. If the Court found that she lacked capacity or had not done enough to revoke the will, then her will would stand and her estate would pass to her distant cousins, who were the claimants.

Following a falling out with the claimants in late 2021, Carry instructed her solicitors that she wished to change her will, but no new will was executed. Carry was subsequently admitted to hospital.

In January 2022, she arranged for her longstanding solicitor to visit her in hospital to take instructions for a new will. Carry’s solicitor visited her and assessed her as having testamentary capacity. Carry was told that if she destroyed her existing will it would be revoked, that she would be intestate and her estate would pass to Josephine.

Carry confirmed that she wished to revoke her will. She took the will from her solicitor and tore it through to within 2.5cm of its edge. Carry was not strong enough to complete the act, so her solicitor asked whether she wanted her assistance. Carry confirmed that she did. The solicitor put her hands on the will alongside Carry’s and together they completed the act and tore it through.

Carry’s instructions were then taken for a new will, but before one could be prepared she became drowsy and so the meeting was brought to an end. Carry died a few days later, intestate.

The cousins relied upon the evidence of a single joint expert witness, in whose opinion Carry suffered from periods of delirium and therefore lacked testamentary capacity at the relevant time. The cousins also argued that Carry did not destroy the will herself and had only acquiesced in the act of destruction.

After a 3-day trial in the High Court, Deputy Master Linwood found for Josephine. The judge considered how the evidence of a single joint expert witness could be challenged by Part 35 questions and in submissions, in light of the Supreme Court case of Tui v Griffiths [2023] UKSC 48, and how the Court should approach the evidence of expert witnesses in testamentary capacity cases.

Accepting the evidence of the solicitor who attended upon Carry when she destroyed the will, Deputy Master Linwood concluded that Carry had capacity to revoke her will, had the intention to revoke her will and did so by tearing it in half.

Christopher successfully demonstrated that Carry acted with the necessary capacity and intent, despite the claims made by distant relatives challenging the will’s revocation. Christopher is a highly regarded wills, probate and trust specialist, regularly advising in cases involving the division of assets between cohabitees, disputed wills and the administration of trusts and estates. He is ranked in Band 1 for chancery in Chambers UK. Find out more here.

Judgment can be found here.

The case attracted national press, please click on the below links: