Rowe v Clarke

Rowe v Clarke

The presumption of revocation was exceptionally weak due to the testator's disorganised custody of the will and lack of evidence of deliberate revocation. On the balance of probabilities, the will was lost or destroyed without intention to revoke, rebutting the presumption. The copy will is admitted to probate and the grant to Kenneth Clarke is revoked.

Parties
Claimant: Mark Andrew Rowe; Defendant: Kenneth Anthony Clarke
Jurisdiction
England and Wales
Judgment Date
31 October 2005
Procedural Posture
Probate / Judgment After Trial
Outcome
Claim allowed; counterclaim dismissed
Legal Topics
Presumption of Revocation of Will, Proof of Lost Will, Intestacy, Burden of Proof in Probate, Fraudulent Suppression of Will
Succession Law Probate Presumption of Revocation of Will Proof of Lost Will Intestacy Burden of Proof in Probate Fraudulent Suppression of Will

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Parties

Mark Andrew Rowe

Claimant

Kenneth Anthony Clarke

Defendant

Procedural Posture

Probate / Judgment After Trial

Legal Issues

  1. 1 Whether the presumption of revocation applies to a will not found at death
  2. 2 Whether the presumption is rebutted by evidence of unintentional loss or destruction
  3. 3 Whether the will was fraudulently suppressed or destroyed by the defendant

Ratio Decidendi

The presumption of revocation was exceptionally weak due to the testator's disorganised custody of the will and lack of evidence of deliberate revocation. On the balance of probabilities, the will was lost or destroyed without intention to revoke, rebutting the presumption. The copy will is admitted to probate and the grant to Kenneth Clarke is revoked.

Court Disposition

Claim allowed; counterclaim dismissed

Orders

  • Probate pronounced in favour of the will dated 28 June 2000 in the form of the copy held by Mrs Rowe, until the original is produced.
  • Grant of administration issued to Kenneth Clarke in April 2004 revoked.