Laws of Eve | How to confirm a testator’s true will

Even with the most carefully drafted will and the clearest statement of a testator’s wishes, issues concerning an estate can become the subject of intense and protracted litigation. Some of the most common issues concern the interpretation of clauses in a will, the admission to probate of a copy of a will, where the original cannot be located, and the claim by someone for adequate financial provision to be made for him or her from the estate of a deceased person.

The first two of these questions occupied the court in England in the case ofBlyth v Sykes [2019] EWHC 34. The questions arose because, after Agnes Moore, a widow and the mother of three adult children, passed away it was discovered that she had a clearly labelled envelope that contained a copy of a will and an original codicil (addendum to the will).

If the copy will was accepted, the estate would have to be shared in four equal parts so that Agnes’ two surviving children, Gail and Frederick, the defendant (Leslie, who is the former husband of one of Agnes’ daughters, Debbie) and their two children would benefit. Leslie would also be substituted for Frederick as an executor in keeping with the codicil. If it was determined that the will had been destroyed by Agnes, the intestacy rules would apply and the estate would be shared in three parts only, among Gail, Frederick and Debbie’s two children.

The envelope that contained the copy will and the codicil also had very clear directions in relation to the fact that a note would be inside that envelope to say where the original will could be located if it only contained a copy. There was no such note, but the copy will was endorsed with a certificate by Agnes’ lawyers to say that it was a true copy of the original. The certificate and the codicil bore the same date.

Section 20 of the English Wills Act, which contains the same words asSection 15 of the Jamaican Wills Act, states:

No wilI or codicil, or any part thereof, shall be revoked otherwise than ... by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.”

WILL DESTROYED

Agnes’ children asserted that she had destroyed the will by tearing it up, but they had to prove that it was torn up with the intention to revoke it, and that it was not done through inadvertence or while under the mistaken belief as to the effect of tearing it up. The important point here is that the children said that, after Debbie’s death, Agnes wanted only her two children to inherit her estate, and Leslie actually agreed. However, that only served to prove that Agnes would have been acting under the belief that if she died intestate (without leaving behind a will) Debbie’s children would not have shared in her estate, and that would have been false. That have also served to exclude Leslie.

The judge concluded (among other things) that there was no direct evidence that Agnes had specifically revoked the will. Moreover, although Leslie and Debbie had been separated for 10 years when the will was signed in 2007, Leslie lived in a home Agnes provided and she appointed him as attorney over all of her assets and affairs, and even substituted him for Frederick as her executor under the 2010 codicil. This led the judge to also conclude that Agnes would not have intended to revoke her will if she knew that doing so would exclude Leslie as a beneficiary. In fact, the judge found that ensuring that Leslie personally benefitted from the estate was Agnes’ overriding wish.

The copy will was admitted to probate.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.