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 executed first, and their provisions are so inconsistent that they cannot stand together, the presumption in favour of admissibility will be rebutted, and neither document will be admitted to probate.
But when the provisions of two testamentary documents, the priority of which is uncertain and in neither of which there are express words of revocation, are apparently inconsistent, the Court will endeavour so to construe the words that if possible the two documents may stand together and may both be admitted to probate as expressing together the whole testamentary intention of the testator.
The court was asked how far a second codicil had revoked an earlier one.
Held: It was necessary for the court to construe the subsequent will. If the terms of the subsequent will are ambiguous, it is necessary for the court to act as a court of construction to determine the extent, if any, of the inconsistency.
Vaughan Williams LJ said: ‘Then Sir James Hannen (in Jenner v Ffinch) proceeded to point out that, if the second document is ambiguous, parol evidence of the surrounding circumstances will be admissible in order to enable the Court to determine the intention of the second document. Speaking for myself, I should hesitate to say that that dictum would extend to the admission of parol evidence of the intention of the testator according to the view of those who were present at the time of the execution of the testamentary document. I think the basis for this principle (which, indeed, is plainly laid down in the first case which I cited by Sir James Wilde, that when there is, as between two documents properly executed in accordance with the Wills Act, the question to be solved how far the one affects the other, the Probate Court must to that extent and for this purpose act as a Court of construction) is this – that if a document purports to be testamentary, and it is executed in accordance with the provisions of the Wills Act, prima facie that document ought to be admitted to probate. In order to reject such a document you have to displace that presumption.’
Vaughan Williams LJ
[1905] P 66, [1904] UKLawRpPro 44
Commonlii
England and Wales
Cited by:
Cited – Lamothe v Lamothe and Others ChD 15-Jun-2006
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 . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 04 December 2021; Ref: scu.375067