Daniel Watson and Priya Mohanakumar discuss the recent Phipps v Goulbourne case in Today’s Wills and Probate

Daniel and Priya’s article was published in Today’s Wills and Probate, 23 February 2024, and can be seen here.

Propounding a copy of a will

Where an individual dies, in order to administer their estate, a Grant of Representation is usually required.

This is an umbrella term and the specific Grant required will depend on the circumstances:

• Grant of Probate: this will be the Grant applied for where there is a valid Will appointing executors.
• Letters of administration: this is the type of Grant required where there is no valid Will.
• Letters of administration with Will annexed: this is for circumstances where there is a valid Will but there is no appointed executor or the executors are no longer able or willing to act.

Where an individual dies and a copy (but no original) of their Will is found amongst their documents, their personal representatives may apply to the Probate Registry to prove a copy of the Will.

When applying to the Probate Registry to prove a copy of a Will, an affidavit must be submitted setting out all the steps which have been taken to find the original Will. The Probate Registry will then consider whether or not to prove the copy Will. If the copy Will is not proved by the Probate Registry, the estate will be administered in accordance with the rules of intestacy, potentially leading to very different beneficiaries inheriting the estate.

Equally, where an individual dies and a copy of a Will is found amongst their documents and there is concern about the validity of the Will, the Probate Registry can issue a citation to file an “appearance” and to propound the copy Will. The party trying to prove the copy Will needs to set out their case as to why the Will should be proved.

Should the personal representatives fail to propound a copy of the Will, an interested party may apply to the Court for a Grant of Representation on the basis that the Will was invalid and the deceased died intestate. This will provide that party with the legal authority to administer the estate of the deceased individual.

This point was evidenced in the recent case of Phipps v Goulbourne (Re the Estate of Tetla Yvonne Goulboure otherwise Tetla Yvonne Butler) [2024] EWHC 130 (Ch). The claimant was the daughter of the individual who died. She sought to propound a copy of a Will which she found amongst her mother’s emails, as the original Will could not be found. The daughter was the sole beneficiary of the Will and the executor. The defendant in this case was the widower of the individual who died, and was seeking to apply for letters of administration on the basis there was no valid Will.

The case largely centred around the claimant’s application for relief from sanctions for failing to comply with an unless order.

The claimant had provided a photograph of the Will to the Defendant in 2020, but subsequently failed to propound the Will and apply for probate. Because of the claimant’s inaction, the Defendant applied for an order for a Grant of Representation as if the Will were invalid. The court made an unless order in early 2023, whereby the Claimant was required to issue and serve a claim to propound the Will within 28 days, otherwise a Grant would be issued to the Defendant as if the Will were invalid.

The claim form was not effectively served on the defendant within the deadline and as such, the claimant was in breach of the unless order. The claimant’s solicitors mistakenly believed the courts would serve the claim form on the defendant, despite the Practice Directions stating, “all claim forms are served by the claimant and not the court”. The claimant sought relief from sanctions on this basis. Master Teverson, hearing this case, ruled that the relief from sanctions would not be granted as to do so would be undermining the unless order, and the solicitors acting should have acted within the deadline stated.

The consequence of the above was that the claimant was prevented from propounding a copy of her mother’s Will, meaning that her estate was administered in accordance with the intestacy rules, and the deceased’s widower became the primary beneficiary of the estate.

This case highlights the importance of ensuring that a testator’s executors are aware of the location of the testator’s last, valid Will (and that, ideally, the original is stored somewhere safe and accessible). After making a valid Will, a testator must ensure so far as possible that the original can be found and submitted in an application for probate. Otherwise, intended beneficiaries may lose out significantly.