[2006]JRC058
royal court
(Samedi Division)
19th April 2006
Before : |
M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Allo and Newcombe. |
In the matter of the Estate of William Willox Greig
Advocate R. J. Michel for the Representor.
judgment
the deputy bailiff:
1. This matter came before us on 27th February at which time we adjourned it for further enquires to be made. Those enquiries have now been made.
2. William Willox Greig, the deceased, died in Majorca on 18th September 2001. He was domiciled in Spain, but was a British national. The Representor, Alexander Norman Ridout, now seeks to obtain probate of a photocopy of a will of personal estate made by the deceased.
3. It is necessary to prove the will in Jersey because there is a small sum of money on deposit in Jersey. From the affidavit evidence the facts would appear to be as follows. The deceased lived in Majorca for some 15 years before his death. In about 1987 he became friendly with a Mr Andueza. Indeed he lived at Mr Andueza's home and paid Mr Andueza some £20,000 to convert a room for his use for the rest of his life.
4. On 22nd March, 1996 the deceased made a will in Spanish form which was lodged with a notary in Spain. It has not proved possible to obtain a copy of that will but it seems highly likely that it benefited Mr Andueza.
5. In 1999 the deceased's health worsened and Mr Andueza stated that he was no longer capable of looking after the deceased. Accordingly, on 3rd October, 1999, the deceased was admitted to a residencia where he remained until shortly before his death when he was taken to hospital. Whilst at the residencia the deceased, who has no known close family, became friendly with the representor.
6. Having fallen out with Mr Andueza, he said that he wanted to leave all of his assets to the representor. Accordingly on the 22nd February, 2000, he wrote to the Notary saying that he wanted his Spanish will cancelled. However, that letter was not accepted by the Notary who said that the wording was not sufficient under Spanish law to cancel the will.
7. On 29th February 2000, the deceased executed a will in standard English form appointing the representor as his executor and leaving everything to the representor.
8. The Court has received affidavits from the two witnesses to that will, and is satisfied that the will was duly executed by the deceased in accordance with the law of Jersey. The will contained a standard clause revoking all previous wills. We are therefore satisfied that both by reason of his letter of 22nd February to the Notary, and by reason of the revocation clause in the will of 29th February, the deceased revoked the Spanish will.
9. There is evidence that immediately following the death of the deceased Mr Andueza attended at the residencia and collected all of the deceased's papers from his room. Certainly by the time the representor attended there were no papers, no money and no sign of the original will of the 29th February or of any copy thereof. The copy which is now produced to the Court is one that had been in the possession of the representor since the time of execution of the will.
10. It is well established that the Court can admit a photocopy of a will to probate if satisfied it is a copy of the original will which was properly executed but which now cannot be found. We are satisfied on the evidence that that is the position here.
11. The Court must also consider the prima facie presumption referred to in JSPCA -v- Rees [2001] JLR 506 that, where a will is last traced to the possession of a testator and is not forthcoming at his death, he has destroyed the will with the intention of revoking it. However, that prima facie presumption can be rebutted by evidence and we are quite satisfied from the evidence in this case that the deceased intended, upon his death, that the will of 29th February, 2000, should be operative to the benefit of the representor.
12. We have also considered Article 29 of the Probate (Jersey) Law 1999 which states that where a will is executed by a foreign domiciled person it is to be treated as properly executed if its execution conforms, amongst other alternatives, to the law of Jersey. We are quite satisfied that the execution of the will of the 29th February, was effected in accordance with the law of Jersey in that it was signed by the testator in the presence of two witnesses who both attested then and there to his signature.
13. In all the circumstances we are satisfied that the will of 29th February was properly executed, it has now been lost, and we are therefore willing to order that the photocopy of that will be admitted to probate.
Authorities
JSPCA -v-Rees [2001] JLR 506.
Probate (Jersey) Law 1999.