England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th June 2006

1. This claim concerns the administration of the estate of the late Catherine Agnes Lamothe. She died on 13^th December 1996. The Claimant is her daughter, the First Defendant, Ronald Lamothe, is her son. The Second and Third Defendants, Albert Augustine and Maria Wallace, are friends of the family. The Fourth Defendant, Ruby Mangal, is the former partner of Ronald Lamothe. The Fifth, Sixth and Seventh Defendants, Louisa, Jordan and Jessica Lamothe, are the children of Ronald Lamothe and Ruby Mangal. Jordan and Jessica are under 18, Louisa is over 18. The Eighth and Ninth Defendants, Jermaine and Asher Lamothe, are the children of Beverly Lamothe, Jermaine is over 18, Asher is under 18.
2. The late Mrs Lamothe was born in Dominica and came to England in the early 1960's. She lived in England until her death, latterly at 89 Dunlace Road, Clapton, London E5, which she owned.
3. On 8^th January 1993, the deceased made a will in England (the "1993 Will"). On 18^th February 1998, the executors named in that will, Albert Augustine and Ronald Lamothe, proved that will. A small gift was made to one Justin Carbon (£500); the 89 Dunlace Rd property was left as to 25% to the Claimant, 25% to the First Defendant and 50% divided equally between the grandchildren and the Fourth Defendant. The residue was divided equally between the Claimant and the First Defendant.
4. On 30^th May 1995, however, the deceased made a will in Dominica, (the "1995 Will"), and the executors named in that will were Ronald Lamothe and Maria Wallace. They proved that will in Dominica on 28^th July 1998. That will contained a clause revoking all former wills, gave certain Dominican land to the First Defendant, divided certain other Dominican land equally between the Claimant and the First Defendant, devised a bank account equally between the Claimant, the First Defendant and the Fifth Defendant and divided the residue ("all my real and personal property whatsoever and wheresoever situated not hereby … specifically disposed of") equally between the Claimant and the First Defendant. The 1995 Will does not specifically refer to the 89 Dunlace Road property and it would therefore fall to be treated as part of the residue.
5. In 2001, the Claimant, having received no distribution in relation to her mother's estate, started to make enquiries and discovered that Mr Lamothe and Mr Augustine had obtained probate of the 1993 Will. The Claimant was not at that time aware of the 1995 Will. She, therefore, commenced proceedings in the Chancery Division for an account of the administration of the 1993 Will and the removal of the then executors, action no. HC02C01071. On 26^th July 2002, pursuant to the order of Master Bragge, the Claimant was appointed the executrix in place of her brother, the First Defendant, with Mr Augustine, the Second Defendant, remaining as an executor as well.
6. The administration of the estate of the deceased in England thereafter proceeded on the basis of the validity of the 1993 Will, the Claimant being unaware of the existence of the 1995 Will. In the proceedings, the Claimant obtained orders against Mr Lamothe for the giving of an account of his administration and, eventually, by letter dated 17^th December 2003, Mr Lamothe gave a form of account and disclosed the existence of the 1995 Will and thereafter sent a copy thereof to the Claimant's solicitors by letter dated 26^th January 2004.
7. After taking time to consider the effect of the 1995 Will, the Claimant issued these proceedings to revoke the grant in relation to the English will and to obtain a grant for herself in relation to the Dominican will. Proceedings were served on the Defendants living in this country by post on 25^th November 2004 and until July 2005, there had been no indication that any of the Defendants proposed to resist the claim.
8. Directions had first been given on 21^st February 2005 then further directions were given on 8^th April 2005 and, finally, on 4^th July 2005, directions were given that the trial of the claim should take place before a Master on 4^th October 2005 on the basis of the written evidence.
9. On 29^th July 2005, the Fourth Defendant, Ruby Mangal, applied for permission to defend the claim and for the hearing of 4^th October 2005 to be vacated. The Fourth Defendant's application was granted, she was appointed to represent the interests of the Fifth, Sixth, Seventh and Ninth Defendants and directions were given for the service of a Defence and Part 20 Counterclaim, the service of evidence of fact "regarding whether the deceased intended the 1995 will to revoke the 1993 will" and it was directed that the matter be listed for trial before a judge.
10. The Fourth Defendant, on behalf of herself and the Fifth, Sixth, Seventh and Ninth Defendants:

(i) Opposes the application for revocation of probate of the 1993 Will;

(ii) Seeks a grant of probate of the 1995 Will to be admitted together with the 1993 Will and with the omission of the revocation clause in the 1995 Will;

(iii) Seeks declarations to the effect that the specific gifts in the 1993 will stand together with the gifts contained in the 1995 Will.

11. The Fourth Defendant's case is that Mrs Lamothe did not intend to revoke the 1993 Will when she made the 1995 Will. The 1995 Will, it is said, was only intended to deal with Mrs Lamothe's property in Dominica and was not intended to interfere with the dispositions of the property in England, and specifically the house at 89 Dunlace Road, which were set out in the 1993 Will.
12. Mr Dew, counsel for the Fourth Defendant, submitted that I was entitled to look at all the relevant evidence to determine Mrs Lamothe's intention at the time that she executed the 1995 Will. This was contested by Mr Edwards, Counsel for the Claimant, who submitted that I was constrained merely to look at the two wills and to construe them. On this basis it would be clear that the 1995 Will revoked the 1993 Will because that is what it states in terms and there would be no further argument. The hearing proceeded on the basis that I should hear all the evidence without prejudice as to whether it was admissible. It is therefore necessary for me first to determine whether any, and if so what evidence is admissible.
13. Both parties cited a number of authorities. I was also referred to Sections 20 and 21 of the Administration of Justice Act 1982 which applies to the wills of testators who die on or after the 1^st of January 1983. The relevant parts of those sections are as follows

20 Rectification

(1) If a court is satisfied that a will is so expressed that it fails to carry out the testators intensions, in consequence-

(a) of a clerical error; or

(b) of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.

21 Interpretations of wills – general rules as to evidence

(1) This section applies to a will-

(a) in so far as any part of it is meaningless;

(b) in so far as the language used in any part of it is ambiguous on the face of it;

(c) in so far as evidence, other than evidence as of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation.

14. There is no application for rectification in this case. Section 20 deals specifically with claims for rectification and so it would seem to be irrelevant. However, the Claimant argues that rectification would have been the appropriate remedy for the Fourth Defendant to pursue. Not having adopted that course of action, the Claimant submits, it is not open to the Fourth Defendant to seek to obtain the same result by other means.
15. I do not accept that argument. Section 20 was enacted in order to enable the Court to insert words into a will if the conditions of the section were satisfied. Previously, the Court had the power to omit words from a will when admitting it to probate, where it considered that to be necessary to achieve the intention of the testator. It was not within the Court's power to add words, however clear the testator's intention. I see nothing in Section 20 that removes the Court's pre-existing power and I was not taken to any authority suggesting that to be the effect of the section.
16. Section 21 is concerned with the interpretation of wills. As I understand it, the Court, in a case such as this, has two functions. The first is as a Court of probate, to determine what will, or even what clauses of a will, are to be admitted to probate. Once that has been determined the Court is then concerned with the interpretation of the will or wills that have been admitted to probate. Section 21 does not assist me in deciding whether any evidence outside the will is admissible in reaching a determination as to whether a will is to be admitted to probate. For this I need to turn to the established case law.
17. The first case to which I was referred was In the Goods of Oswald (1874) LR 3 P&D 162. In that case there was a will with two codicils and then a subsequent 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." The judgment is brief:

"It was clearly not the intention of the deceased to revoke her previous will. From the facts stated in the affidavit it is evident that the words of revocation were introduced into the last paper per incuriam, and therefore probate will issue without them."

18. It is clear from this that the judge, Sir J Hannen, received and relied upon evidence. This was in the form of an affidavit from one of the executors who attended on the deceased when she executed it. It was his evidence that no instructions were given to the person who drew up the second will to insert a clause of revocation, the will was never read over by or to the deceased before she executed it and she was not aware of the clause of revocation contained therein. This provides support for the Defendants' submission that, whilst a specific revocation clause is evidence of an intention to revoke earlier wills, it provides a presumption which can be overridden by evidence that the testator did not intend to revoke earlier wills. It is necessary to have both an act of revocation, such as a revocation clause in a subsequent will or the destruction of the earlier will, accompanied by an intention to revoke.
19. The next case to which I was referred was O'Learly v Douglass (1878) 1 LR IR 45. In that case the testator executed two wills, identical in all respects save only for the dates and the attesting witnesses. As Warren J who heard the case said: "On these facts it would seem immaterial whether one or both papers should be admitted to probate." However there were certain charitable donations contained in the wills which, under the law at the time, would have failed so far as they depended on the second will but would have been valid if effected by the earlier will. Warren J relied upon an earlier statement by Sir J P Wilde in Birks v Birks 4 Sw & Tr 31: "It is undoubted law that parol evidence may be given to show the circumstances under which a testamentary paper was executed" and added "and the Court may draw what light it can from that evidence." He further stated the function of the Court "to admit to probate all testamentary papers which a testator has duly executed and which he has not revoked".
20. Warren J was not concerned there with an express revocation clause in the later will but of revocation by subsequent testamentary act, being the making of a subsequent will disposing of the whole property of the testator. However, again it is clear that the judge was looking at the intention of the testator and, to determine that intention, was looking at the circumstances under which the second will was executed.
21. Next was a Privy Council case which has a useful explanation of the differences in approach and function between a Court of Probate and a Court of Construction. In Re Resch's Will Trusts [1969] 1 AC 514 Lord Wilberforce, having first stated that "their Lordships must make it clear in the first place that they are in the present appeals, acting as a court of construction not as a court of probate", went on "The principles which ought to be applied on such a question as this, by a court of probate have been clearly stated by Sir John Nicholl. "In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation" (Methuen v Methuen) and "in a court of construction, where the factum of the instrument has been previously established in the court of probate, the inquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator": Greenough v Martin."
22. As I have said above, my first task in this case is to determine which will or wills should be admitted to probate and therefore the principles to be applied by me are as set out for the court of probate.
23. Then there is the judgment of Latey J in In Re Morris dec'd [1971] P 62 which relies heavily on an earlier unreported case of Sachs J. Latey J reviews the line of cases which suggest that, in the absence of fraud, where a testator has had the contents of a will brought to his or her attention and has executed it, that will be conclusive of he or she having approved the contents and no evidence could be adduced to go behind that approval. He concludes:

"Indeed, when those conditions are satisfied prima facie the inference would be that the testator knew and approved, but the point is that the court is not precluded from considering all the evidence to arrive at the truth, and this is so not only if fraud is suggested but also if mistake is suggested.

"In my opinion, the approach of the court today is as stated by Sachs J in Crerar v Crerar. This case was not reported. A transcript of the judgment was asked for, but it is the practice, so I was informed, for the shorthand writer to destroy his notes after 10 years have elapsed; and the judgment was given in April 1956. However, the material passages are quoted in an article written and signed by a member of the Bar, headed: "Knowledge and Approval," in the Law Journal of November 2, 1956, (106 Law Journal 694). Moreover, those parts of the judgment concerned with the law were prepared verbatim for delivery and Sachs LJ has been good enough to allow me to verify from those prepared parts the accuracy of the quotations in the article. They are accurate. Sachs J said that "inquiries touching the validity of a testamentary disposition have always been considered matters touching the conscience of the court," and he rejected

"the idea that there is any rule of law applicable to unusual cases which can so put that conscience into a strait-jacket as to preclude it from drawing inferences in the usual way and thus force the court to a decision which would, on the particular facts, be artificial."

"He went on to say that the court had

"to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption of law."

"The author of the article concluded by hoping:

"... that the decision of Sachs J in the Crerar case will help the probate court to give effect to the wishes of other testators, and to avoid imputing to them a fictitious knowledge and approval of testamentary documents whose meaning they did not know and would not have approved."

"That aspiration, in my opinion, should not be a pious one."

24. Latey J then went on to consider "whether there is a rule of law requiring that knowledge and approval must be imputed in certain circumstances and, if there is, whether this is such a case." The learned judge refers to a case of 1882 and concludes "from this and other cases that followed it is established, in my opinion that there are cases where, though the testator did not in fact know and approve the effect of what he is executing, he is deemed to do so; he is bound by the draftsman's mistake." However, he distinguishes the case before him from such cases. In my opinion, I can similarly distinguish the facts of the present case from such a situation. Here, I am concerned with establishing whether the testator had the intention to revoke the 1993 Will. If the revocation clause in the 1995 Will was not in accord with her intentions there seems to me to be no rule of law that she should be bound by the mistake of the draftsman.
25. Earlier in his judgment, Latey J refers to problems being considered by a sub-committee of the Law Reform Committee. This gives an insight as to the reasons for the enactment of the Administration of Justice Act 1982 and again emphasises the distinction between the court of probate and the court of construction and their differing powers to consider evidence. "Two of those problems are whether the court of probate should have power to add words to give effect to a testator's intentions and whether the court of construction should have wider power to admit external or extrinsic evidence to ascertain a deceased person's intentions."
26. Against these authorities Mr Edwards on behalf of the Claimant relies upon Townsend v Moore [1905] P 66 and Re Resch's Will Trusts [1969] 1 AC 514. In Townsend v Moore Mr Edwards relies particularly upon the following passage in the judgment of Vaughan Williams LJ:

"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..."

27. I do not believe that this in any way conflicts with the authorities referred to above. The issue there was as to how far a subsequent will had the effect of revoking an earlier will by reason of it being inconsistent with the earlier will. For that purpose it is 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. That is different from determining whether an express clause of revocation was accompanied by the necessary intention to revoke. That is not a matter of construction. In any event, there is no suggestion in the passage that the court cannot look at any evidence of intention but merely that it cannot look at evidence consisting of the opinions of others, present at the execution of the document, as to the intention of the testator. That proposition would seem to be unassailable in any context.
28. So far as Resch's Will Trusts is concerned, Mr Edwards relies upon a passage which follows on from the passage I have set out in paragraph 21 above:

"But the fact that a document has been admitted to probate, even after consideration of the construction of that and other testamentary instrument, does not prevent a court of construction from coming to the conclusion that this document has no operative effect."

29. Again, I do not see that as limiting me in my consideration as to whether the 1995 Will revokes the 1993 Will.
30. Mr Edwards then took me briefly through all the cases relied upon by Mr Dew pointing out that on their facts they were all "explicable". Effectively this amounted to saying that on the facts of those cases there was clear evidence on which the court could act. That supports my view that the court does have the power to look at extrinsic evidence and is not confined to the content of the wills.
31. I have not referred to all the cases that were brought to my intention. In particular I was taken to some Australian authorities, an article on the subject that appeared in the Australian law Journal and a Canadian case. The Australian cases and article were particularly useful in providing a summary of relevant English authorities, however, I believe I have to be cautious not to put too much reliance on opinions expressed in them as it appears that the Australian law may be developing rather further in this area than English law, particularly since Australia has not enacted any equivalent of the Administration of Justice Act 1982. Nevertheless, these materials confirmed the views that I had formed from the English cases as recited above.
32. Accordingly, in my opinion, it is clear that prior to the Administration of Justice Act 1982 it was open to the court, when considering which will or wills of a testator to admit to probate, to consider the intention of the testator and for that purpose to consider evidence outside the confines of the wills in question. There is nothing in the relevant provisions of the Administration of Justice Act 1982 which would indicate that this power was to be removed and replaced by the more limited powers to consider evidence given by that Act, nor was I referred to any case which gave such an indication. For those reasons I find that it is open to me, and indeed my duty in a case such as this, to consider all the evidence as to the surrounding circumstances of the drafting and execution of the 1995 Will to determine whether Mrs Lamothe intended thereby to revoke the 1993 Will.
33. However, before I consider the evidence there is one more point of law I should consider and that is the burden that lies on the party seeking to prevent an express clause of revocation from having the effect that would follow from the plain meaning of the words used. In Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151 Langton J expressed it thus:

"It is a heavy burden upon a plaintiff who comes into this Court to say: "I agree that the testator was in every way fit to make a will, I agree that the will which he has made is perfectly clear and unambiguous in its terms, I agree that it contains a revocatory clause in simple words: nevertheless I say that he did not really intend to revoke the earlier bequests in earlier wills." Quite obviously the burden must be heavy upon anybody who comes to assert a proposition of that kind."

34. The Lowthorpe-Lutwidge case was referred to in the judgment of Tadgell J in the Supreme Court of Victoria in Nemes v Baker [1995] 2 VR 439 and he concluded :

"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 there is receivable evidence which is sufficient to rebut it, there can be no doubt that it is the duty of a court of probate to give effect to it."

35. I do not read these dicta as laying down a higher standard of proof than the usual balance of probabilities. What they are doing is stressing that the existence of the revocation clause is, of itself, strong evidence which needs to be overcome. I turn now to the evidence in this case.
36. I heard evidence from the following witnesses: (1) Beverley Lamothe, the Claimant and Mrs Lamothe's daughter; (2) Ronald Lamothe, the First Defendant and Mrs Lamothe's son; (3) Ruby Mangal, the Fourth Defendant and Ronald Lamothe's former partner; and (4) Albert Augustine, the Second Defendant and an executor of the 1993 Will. I should note that although Ronald Lamothe is a Defendant he supports his sister's application that the 1995 Will should be admitted to probate and the grant of probate in respect of the 1993 Will should be revoked. He was not legally represented but made submissions on his own behalf and cross-examined the other witnesses.
37. I found all the witnesses to be honest and they all attempted to help the court to discover the relevant facts. The events about which they were giving evidence occurred some ten years or more ago and their recollections about them differ, particularly as to the dates when various events happened. I find nothing sinister in that and believe it to be an inevitable result of the passage of time. It was apparent that Ronald Lamothe was very upset at the death of his mother. He was acknowledged by his sister to be his mother's favourite and her death was a big blow to him. As a result, he clearly had a confused recollection of events that followed her death and, indeed some that preceded it. Albert Augustine was the only witness who had no financial interest in the outcome of this application.
38. In addition to the evidence of those witnesses I was shown a letter from the lawyer in Dominica who received Mrs Lamothe's instructions and acted on those to draw up the 1995 Will. This was not in the form of a witness statement and no Civil Evidence Act Notice was served in respect of it but, sensibly, no point was taken.
39. I set out below the relevant excerpts from the letter from Mrs Lamothe's lawyer in Dominica, Mr Alick Lawrence:

"The instructions were given on 25^th May, 1995. As is my custom in these matters, I questioned the client and spoken (sic) with her in order to satisfy myself that she was of sound mind, memory and understanding. Based on our conversation I was so satisfied.

"Between the abovementioned date and 30^th May, 1995 the will was prepared and she returned on the latter date to execute it. I was present and gave her the prepared will which she read. I explained the formal parts and the language to her and asked her whether the prepared document reflected the instructions she had given me. She said it did. I also asked her whether she wished to change anything; she said no. During the second visit she also appeared to be normal and fully aware of what she was doing. The will was duly signed by her in my presence and in the presence of two witnesses who also signed. ...

"I do not keep client files in respect of matters such as instructions for wills. Instead, the instructions are recorded by me in an instruction book which I use for such purposes. I am therefore submitting the page on which Ms. Lamothe instructions were written as well as the preceding and succeeding pages. The tick beside the various instructions indicates that the work was done.

"Note that my invariable practice when taking instructions for a simple will (such as Ms. Lamothe's) is to ask the client to list the properties which she owns or wishes to dispose of in the will. These are written by me in the form of a list. I then ask that the beneficiaries be named for each property and the names are written down in a corresponding list. This practiced was applied to Ms. Lamother's instructions."

40. Mr Lawrence enclosed photocopies of the pages from his instruction book together with a typed version of the relevant part. This contains a list of four items, two properties in Dominica a bank account at Barclays Bank and one at "Credit U". No reference is made to the property in London except that Mrs Lamothe is said to be residing at 89 Dunlace Road, Clapton, London. The first property in the list is then indicated as "-to Ronald + daughter Beverley Lamothe", the second as "-to Ronald", the third "-to Ronald, Beverley and grand daughter Louisa Lamothe equally" and the fourth "-same as No 3". Below this is the following:

"Funeral expenses to be meet from Barclays Bank

-No other children – Nothing to estranged husband

-All other property to my two children Ronald + Beverley"

41. The 1995 Will reflects this note of instructions with two additions or elaborations. The first addition is the revocation clause: "I revoke all former wills and codicils made by me and declare this to be my last will." The second is an elaboration: "I devise all my real and personal property whatsoever and wheresoever situated not hereby or by any codicil specifically disposed of, including any property over which I may have a general power of appointment or disposition by will to my abovementioned children absolutely."
42. The Fourth Defendant's case is that Mrs Lamothe intended this will to dispose of her property in Dominica but did not intend it to deal with her property in England. Ruby Mangal gave evidence that she had remained a friend of Mrs Lamothe after she and Ronald Lamothe had separated, that she had taken her children, Mrs Lamothe's grandchildren to see her and that she had helped to care for Mrs Lamothe in 1990-91. Beverley Lamothe gave evidence that her mother and Ruby Mangal had fallen out over Mrs Lamothe having contact with children that Ronald Lamothe had fathered with another woman. Ruby Mangal accepted that there had been a disagreement with Mrs Lamothe on this subject but she said that she and Mrs Lamothe had patched things up quite shortly afterwards and that, in any event, it had been after Mrs Lamothe's trip to Dominica and therefore after the 1995 Will.
43. I do not think that I need to resolve the issue as to when this disagreement occurred. As I understand it, it is only being put forward as an explanation as to why Mrs Lamothe might have wanted to cut Ruby Mangal out of her will. As such I regard it as peripheral and, in view of the lack of any means of dating the incident precisely, I propose to ignore it.
44. Beverley Lamothe gave evidence that she did not know anything about the 1995 Will until after she had obtained the court order replacing her brother Ronald as an executor of the 1993 Will and was trying to produce accounts of the estate when Ronald told her of the 1995 Will. Ronald only told her of the 1995 Will in response to questions she raised about Mrs Lamothe's property in Dominica.. She said that she did not know the contents of the 1993 Will until after her mother's death when Mr Augustine read it out to them.
45. Mr Augustine gave evidence that Mrs Lamothe had given his wife the 1993 Will shortly after it was executed. He did not know the contents of it until he read it to the family after Mrs Lamothe's death. He said he had to explain it to Ronald Lamothe twice before he understood it. Mr Augustine also said that Mrs Lamothe never told him that she had made a 1995 Will and had never told him to destroy the 1993 Will.
46. Ronald Lamothe gave evidence that he and his daughter Louisa had gone with his mother to Dominica and that he had gone to the lawyer Mr Lawrence with his mother and was present when the instructions for the will were given. He said that Mr Lawrence was shown a copy of the 1993 Will and was told by Mr Lawrence that the old will would be revoked. He said that she thought about it and "did what she had to do." He said she knew exactly what she was doing and she wanted to divide things more fairly. He also said that her relationship with Ruby Mangal had changed since 1993.
47. Ronald Lamothe said that Mrs Lamothe and Mr Augustine had told his sister and himself the contents of the 1993 Will shortly after its execution and that it had caused some ill feelings between his sister and himself since it did not distribute their mother's estate equally between him and his sister. I believe that this is a reference to the fact that Ronald Lamothe had three children by Ruby Mangal whereas Beverley Lamothe had only two children. As a result, the distribution of the half share in the 89 Dunlace Road would result in his side of the family receiving more than Beverley's side.
48. This was not supported by either Beverley Lamothe or Albert Augustine who both denied having any knowledge of the 1993 Will until after Mrs Lamothe's death. In consequence, I believe that Ronald Lamothe is confused in his recollection. The significance of this is that this ill feeling between Ronald and Beverley Lamothe was one of the reasons put forward by Ronald Lamothe for his mother making the 1995 Will in place of the 1993 Will. He said that part of his mother's intention was to divide things up more fairly. That may have been her intention but I find as a matter of fact that there was no ill feeling between Ronald and Beverley Lamothe as to the basis of the distribution of their mother's estate in the 1993 Will before her death.
49. It was put to Ronald Lamothe in cross-examination that his evidence now in relation to his mother's intentions in 1995 is in contrast to what he wrote in a letter to the Claimant's solicitors in 2003 when he said: "My late mother prepared a separate will for her estate in Dominica in which she appointed me and Ms Maria Wallis as executors. Of the two properties that belonged to her, she bequeathed the property in Glanvillia solely to me, and the property in Portsmouth jointly to Ms Beverley Lamothe and me." This was also consistent with the fact that he and Mr Augustine had applied for and obtained probate in respect of the 1993 Will in England and that he had applied for and obtained probate for the 1995 Will in Dominica. His answer was that his cousin helped him to write that letter and the he didn't really understand about probate.
50. Mr Edwards submitted, I believe correctly, that the letter was not evidence of anything except a previous inconsistent statement by Ronald Lamothe which could only be used to challenge his credibility. The impression that I formed of Ronald Lamothe was that, quite understandably, he had a rather vague idea as to what was signified by "probate" and the significance of a will being admitted to probate. I accept his evidence that he believed that applying for probate would allow him to deal with his mother's estate in accordance with her wishes. For this reason I do not attach any significance to the fact that he applied for probate for the 1993 Will nor to the wording of the letter he wrote with the assistance of his cousin.
51. When one looks at the two wills and the way in which the 1993 Will deals with the house at 89 Dunlace Road and the 1995 Will deals with the less valuable property in Dominica the first impression is that the Fourth Defendant must be correct and they were intended to deal with the property in the respective jurisdictions. Mr Lawrence's letter is inconclusive. He states that he explained the formal parts and the language to her which would presumably include the effect of the revocation clause but when he asked her to list the properties she intended to dispose of she listed only the properties within Dominica. If the clause in the 1995 Will dealing with the residue of Mrs Lamothe's estate had not referred to her property "wheresoever situated" then the two wills would have been easily reconcilable on this basis. The inclusion of those words in the definition of the residue in the 1995 Will suggests an intention to deal with her entire estate in that will and not just the Dominican assets. It would seem strange for Mr Lawrence to have included those words in the will without instructions, although it must be said that there is no reference to those words in his note in his instruction book.
52. Had matters rested there, I would have been in considerable doubt as to Mrs Lamothe's intentions when she executed the 1995 Will. However, any doubts about Mrs Lamothe's intentions are resolved by Ronald Lamothe's evidence that his mother had been advised that the 1993 Will would be revoked and that she thought about it and decided that was what she wanted to do. Although I have found Ronald Lamothe's recollection of certain events to be unreliable, his evidence on this point was clear and there is little or no scope for confusion. Either he is telling the truth or else he is lying. My impression of him was that whilst he might be confused he was not the sort of person to lie under oath. He expressed what I believe to be a genuine desire to follow his mother's wishes in respect of her estate and a conviction that this was represented by the 1995 Will. In the circumstances far from being clear and unequivocal evidence that revocation was not intended I find that there is clear and unequivocal evidence that it was intended and I find that, subject to what I say below, the Claimant is entitled to the relief sought.
53. One matter that I raised in the course of the hearing was the position of the other grandchildren of Mrs Lamothe, that is the children of Ronald Lamothe by a woman other than Ruby Mangal. Under the 1993 Will those children would have shared in the one half interest in 89 Dunlace Road which was to be divided equally between Ruby Mangal and Mrs Lamothe's grandchildren since it was not limited to the grandchildren named in the clause. Those children were not served with these proceedings and so did not take part. Their potential interest is defeated by my judgment. Fortunately, Mr Dew on behalf of Ruby Mangal and the other Defendants who are minors put forward the arguments in support of their interest. Nevertheless, it will be necessary to follow the correct procedure as regards notifying them before my judgment can be given effect.