[2009]JRC080
royal court
(Samedi Division)
24th April 2009
Before : |
Sir Philip Bailhache, Kt., Bailiff, and Jurats Le Breton and Liddiard. |
IN THE MATTER OF THE ESTATE OF JOHN BARRIE PHILLIPS (DECEASED)
AND IN THE MATTER OF THE REPRESENTATION OF BETTY ANNE PHILLIPS NEE LONDON, WIDOW OF JOHN BARRIE PHILLIPS.
Advocate M. C. Goulborn for the Representor.
judgment
the bailiff:
1. This application is made by Betty Anne Phillips (to whom we shall refer as the Representor), the widow of John Barrie Phillips (to whom we refer as the Deceased). The application arises because of a mistake made in the offices of Advocate Richard Falle on 17th October, 1972, when the Representor and her late husband called in to sign their wills. The wills were very straight forward documents by which each of the husband and wife bequeathed all their movable property, described in the wills as personal estate, to the other. Unfortunately the Representor signed her late husband's will and he signed the will intended to be signed by the Representor. The deceased died on 23rd January, 2009, and the mistake came to light for the first time.
2. Counsel for the Representor has referred us to a Judgment of this Court in Re Vautier [2000] JLR 351 where there had been a similar error when a husband and a wife signed each other's will. In a carefully reasoned Judgment Birt, Deputy Bailiff, held that the Court did have jurisdiction to rectify a will even if the remedy was to be used sparingly and with extreme caution. The affidavit evidence in this case from Advocate Falle makes it very clear that there was a simple mistake. We are satisfied that the two wills which were signed at the same time were passed to the wrong client and each of them signed the wrong document in error.
3. The prayer of the representation expresses two alternative forms of relief. The first is that a declaration be made declaring that the will of the deceased erroneously signed by the Representor is a valid will and should be admitted to probate; the alternative prayer is that a declaration be made that the will purporting to be the will of the deceased but erroneously signed by the Representor, is the valid will of the movable estate of the deceased, and ordering such rectification of the document as will enable the will to be admitted to probate.
4. In Re Vautier the prayer to the representation was expressed in similar alternative form. Counsel for the Representor has this morning explained that the prayer to this representation was drafted before a study of Re Vautier had been made. The Judgment in Re Vautier makes it clear that by the customary law of the Island only a will signed by the testator can be admitted to probate. There is no question therefore of admitting to probate the will of the deceased which was actually signed by the Representor. The only remedy available at law is to seek the rectification of the will actually signed by the deceased.
5. There are two children of the marriage of the Representor and the deceased. Both of them have sworn affidavits deposing to their support of the application made by the Representor.
6. We will therefore order the rectification of the will signed by the deceased and an act will be issued in the form of the draft prepared by counsel for the Representor.
7. No order for costs is made.
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