The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took action for an account in the first probate and was appointed executor. The removed executor then disclosed the second will. The action now was to decide whether the second will had been intended to revoke the first, or required rectification.
Held: There was clear evidence that the testatrix had intended by her second will to deal with all her estate including that in London, and that she intended to revoke the first will entirely. Order accordingly.
Judges:
Wyand QC J
Citations:
[2006] EWHC 1387 (Ch)
Links:
Statutes:
Administration of Justice Act 1982 20 821
Jurisdiction:
England and Wales
Citing:
Cited – Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC 19-Oct-1967
(New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such . .
Cited – Birks v Birks 21-Apr-1865
Probate was applied for for two testamentary papers. Mistake. Admissibility of Parol Evidence.-Testamentary Papers not inconsistent with each other. The First not revoked by the Last.—A testator, having erased a clause in his Will after the . .
Cited – In the Goods of Oswald 17-Feb-1874
The deceased made a will with two codicils and a later will with a clause of revocation. Probate was sought in respect of all four of the documents ‘as together containing the will of the deceased, excluding from the last the clause of revocation.’ . .
Cited – O’Learly v Douglass 25-Jan-1878
The testator had executed two wills, identical in all respects save only for the dates and the attesting witnesses.
Held: Warren J said: ‘On these facts it would seem immaterial whether one or both papers should be admitted to probate.’ . .
Cited – Methuen v Methuen 23-Jun-1817
Sir John Nicholl said: ‘In the court of probate the whole question is one of intention: the animus testandi and the animus recocandi are completely open to investigation.’ . .
Cited – Greenough v Martin 1824
A will and codicil pronounced for; and three intermediate codicils, propounded on behalf of legatees in the same, held to be invalid. In a Court of Probate, what instruments the testator meant to operate as, and compose, his will, is to be collected . .
Cited – Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC 19-Oct-1967
(New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such . .
Cited – Townsend v Moore PDA 21-Dec-1904
Prima facie every testamentary document duly executed in accordance with the provisions of the Wills Act ought to be admitted to probate. But, if there are two testamentary documents of the same date and it cannot be ascertained which of them was . .
Cited – Lowthorpe-Lutwidge v Lowthorpe-Lutwidge 1935
The burden that lies on the party seeking to prevent an express clause of revocation in a will from having the effect that would follow from the plain meaning of the words used. Langton J said: ‘It is a heavy burden upon a plaintiff who comes into . .
Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – Re Barker: Nemes v Baker 21-Apr-1995
(Supreme Court of Victoria) Tadgell J said: ‘The very existence of a revocation clause in a will is, however, prima facie solemnly eloquent of the testator’s intention. Evidence sufficient to rebut it must be clear and unequivocal. Nevertheless, if . .
Cited by:
Cited – Parkinson v Fawdon ChD 30-Jul-2009
The deceased and his partner had made mirror wills. On the second death it appeared that a named residuary beneficiary did not exist. The claimant, with a similar name said it had intended to name him. The court considered whether it could be . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 30 January 2022; Ref: scu.242702