Rowe v Clarke [2005] EWHC 3068 (Ch)

A testator's will leaving everything to his homosexual partner could not be found after his death. The court held the presumption of revocation by destruction was rebutted, finding it more probable the will was accidentally lost, and admitted a copy to probate.

Facts

The testator, Barrie James Clarke, lived with the claimant, Mark Andrew Rowe, at a house in Dartford for approximately ten years in what the court found to be a homosexual relationship. On 28 June 2000, Barrie executed a will at the local Citizens Advice Bureau, appointing Mr Rowe as executor and leaving his entire estate to him absolutely. Barrie sent a photocopy of the will to Mr Rowe’s mother, Mrs Marina Rowe, with a note indicating it was to reassure her that her son would be looked after. The original will was kept informally, initially in an old filing cabinet and later in the bottom of wardrobes.

Barrie had two hospital admissions in 2002 and 2003, with a history of alcoholism. Hospital notes from October 2003 recorded difficulties in the relationship, with Barrie at one point denying Mr Rowe was his partner or next-of-kin. Nevertheless, Mr Rowe nursed Barrie at home until his death on 20 January 2004.

Barrie’s brother, Kenneth Clarke, with whom Barrie had a distant relationship, obtained a grant of administration on the footing of intestacy on 14 April 2004. On 24 January 2004, Kenneth Clarke had visited the house with his son and daughter in what the court found was an intimidating visit, taking various documents away. The original will was never located.

Issues

The central issue was whether the presumption that a will traced to the testator’s possession but not found at death had been destroyed by him with the intention of revocation (animo revocandi) was rebutted on the facts. The three practical alternatives were: (1) deliberate destruction with intent to revoke; (2) fraudulent removal by Kenneth Clarke after death; or (3) accidental loss or destruction without intent to revoke.

A subsidiary legal issue concerned whether, following Finch v Finch (1867) LR 1 P&D 371, the party relying on the presumption must prove the non-existence of the will at the date of death.

Arguments

Mr Calhaem, for Mr Rowe, relied upon eight factors said to rebut the presumption, including Barrie’s continued affection for Mr Rowe, the absence of any stated intention to revoke, the sending of a copy to Mrs Rowe, Barrie’s disorganisation, lack of legal advice, the adverse interest of the first person to search, and Barrie’s poor relationship with his brother. He relied on Finch v Finch in support of the argument that the will may have been removed by Kenneth Clarke.

Miss Harrison, for Kenneth Clarke, argued Barrie was efficient and well-organised, that most of Mr Calhaem’s factors were negative rather than positive, and emphasised hospital notes showing relationship difficulties. She submitted that Finch v Finch had been disapproved in Sykes v Sykes (1907) 23 TLR 747 and should not be followed insofar as it required proof of non-existence of the will at death.

Judgment

Mr Mark Herbert QC, sitting as a Deputy Judge, reviewed the authorities governing the presumption, including Welch v Phillips (1836) 1 Moore 299, Sugden v St Leonards (1876) 1 PD 154, In the Estate of Yule deceased (1965) 109 Sol J 317, and Allan v Morrison [1900] AC 604.

On the authorities point, the judge held that Finch v Finch had been correctly disapproved by the Court of Appeal in Sykes v Sykes. There is no requirement on the party relying on the presumption to prove the non-existence of the will at the time of death; to require such evidence would be to deny the presumption.

The judge found that the presumption arose but was exceptionally weak given the character of custody. Barrie was not meticulous or well-organised, the will was not carefully looked after, and after the filing cabinet was discarded all important documents were kept in the bottom of wardrobes without any secure container.

Considering the three alternatives: (1) As to fraudulent removal by Kenneth Clarke, while there was motive and opportunity, suspicion was insufficient, and there was no positive evidence that the will was in existence at Barrie’s death. Unlike Finch v Finch, there was no positive evidence of the will’s existence shortly before or at death. (2) As to deliberate destruction with intent to revoke, this was possible but improbable given the continued affection between Barrie and Mr Rowe, the purpose of the will being to prevent Kenneth Clarke inheriting, and the absence of any replacement testamentary provision. (3) As to accidental loss or destruction without intent to revoke, the judge found this not only possible but probable, given Barrie’s disorganisation, lack of experience with legal transactions, history of alcohol abuse, and apparent belief that the copy sent to Mrs Rowe provided sufficient security.

On the balance of probabilities, the presumption, weak as it was, was rebutted. The claim succeeded, the copy will of 28 June 2000 was pronounced for in solemn form, and the grant of administration to Kenneth Clarke was revoked. The counterclaim for possession was dismissed.

Implications

The decision confirms the modern approach to the presumption of revocation animo revocandi: it is a presumption of fact, not law, whose strength varies according to the character of the testator’s custody of the will. Where a testator kept the will in an insecure, disorganised manner, the presumption may be substantially weakened and more readily rebutted.

The judgment also reaffirms the Court of Appeal’s disapproval in Sykes v Sykes of any suggestion in Finch v Finch that the party relying on the presumption must prove non-existence of the will at the time of death. Such a requirement would effectively destroy the presumption.

Practically, the decision is significant for cases where a will cannot be located but where a copy exists in safe hands, particularly where the testator was informal in handling documents, lacked legal advice, and had no apparent reason to revoke. It illustrates that a copy may be admitted to probate in solemn form where the presumption is rebutted on the balance of probabilities. The case is of particular importance in the context of partners in relationships (here, a same-sex partnership pre-dating civil partnership legislation) who depend on testamentary provision rather than intestacy rules, and demonstrates that the courts will examine with care the factual matrix surrounding custody of a missing will rather than apply the presumption mechanically.

Verdict: The claim succeeded. The court pronounced in favour of the will dated 28 June 2000 in solemn form, in the form of the copy in Mrs Rowe’s possession until the original should be produced, and revoked the grant of administration issued to Kenneth Clarke in April 2004. The counterclaim for possession of the Dartford house was dismissed.

Source: Rowe v Clarke [2005] EWHC 3068 (Ch)