Jersey Unreported Judgments

Probate - Directions.

[2019]JRC080

Royal Court

(Probate)

6 May 2019

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Ramsden and Dulake.

 

IN THE MATTER OF THE REPRESENTATION OF VOISIN EXECUTORS LIMITED

AND

IN THE MATTER OF JOAN EVELYN WEBB, NÉE GRAY (DECEASED)

AND

IN THE MATTER OF ARTICLE 2 OF THE PROBATE (JERSEY) LAW 1998, AS AMENDED.

 

Advocate A. D. Hoy for the Representor.

Advocate J. C. Turnbull for the First Respondent.

Michael Gray appeared in person

judgment

the COMMISSIONER:

1.        The Representor ("Voisin Executors") seeks directions as to how it should administer the will of movable estate of the late Mrs Joan Evelyn Webb ("Mrs Webb"), and in particular, whether Mrs Webb orally revoked part of the will at a meeting held with Advocate Richard Falle on 30^th November 2016. 

Background

2.        Mrs Webb and her late husband were old friends of Advocate Falle, and he had acted for them as their personal lawyer as soon as he was called to the Jersey bar.  They left no issue. 

3.        Advocate Falle drafted the last will of movable estate of Mrs Webb, which was executed on 10^th April, 2008, ("the Will") under which he was appointed executor and failing him, Bois Executors Limited.  Under the Will, Mrs Webb left a number of specific and pecuniary legacies and the rest or residue in this way:-

"AND as for the rest or residue of my estate whatever and wherever situate at the time of my decease I GIVE AND BEQUEATH the same to such of my nephew MICHAEL GRAY and my niece ANNE CULLINANE as shall survive me and if both in equal shares for themselves absolutely without reserve."

4.        In recent years, she had become increasingly frail physically and by November 2016, was living at Silver Springs Care Home.  In his affidavit of 27^th March, 2019, Advocate Falle describes how, despite her frailty, she retained a fierce independence of mind and spirit and would often ask him to attend to give an account of how he was handling her money under a power of attorney, but in the main for company.  He then goes on to explain in his affidavit what happened at a meeting with her on 30^th November, 2016:-

"10.     This however was not the case on the 30^th November, 2016, when, at her request I called on Joan at Silver Springs out of office hours.  It quickly emerged that she was concerned to review the terms of her will.  She first spoke about her chattels and the legacies which she had made in favour of various friends.  Since the sale of the cottage, Anne had evidently felt morally obliged to store her aunt's chattels in her house and Joan now recognised that this represented something of a burden to her niece.  I pointed out, not for the first time, that the problem of storage would be solved if Joan accelerated gifts during her lifetime, rather than waiting for them to pass under her will.  Although reluctant to fall in with the proposal Joan confirmed that she had arranged to sell the large copper "bachins" which had once graced her cottage but which now took up a lot of space in Anne's modest home.  There was clearly no need for Joan to make a codicil, even if, in the event, Joan subsequently accelerated gifts during her lifetime.

11.      It then emerged that Joan's principal concern that day, was not in relation to her chattels but to give me specific instruction about the residue of her estate which she said would now go to Anne alone.  She explained that much had changed since making her will in 2008.  She was particularly grateful to Anne and her husband Paddy for all that they had done for her in recent years.  In contrast, it seemed her feelings towards Michael Gray had cooled.  She informed me that she had not heard from him for a long time.  Although he must have known of her increased frailty, he had made no effort to contact her not even sending birthday or Christmas cards.  Joan saw this as clear evidence of Michael's indifference and ingratitude for the hospitality which in days gone by, he and his parents had enjoyed in Joan's home.  She determined in consequence to revoke the gift of residue previously made in Michael's favour.

12.      I made a brief note in the pad on my lap to which I have attached an almost equally illegible manuscript later in my office as a contemporaneous record of Joan's clear and motivated revocation made before me, the person having a duty to receive and record her wishes.  It was clear to me that Joan had unequivocally revoked the gift to Michael and in consequence that no further act on her part was required to give her revocation legal effect.  I was at all times conscious that the law does not prescribe any particular form or formality for Revocation save that the act must be done animus revocandi.

12.      Joan's revocation was not contingent upon her signing a codicil by way of confirmation.  I did however make a mental note to provide one purely for the record and I intended to present it to her for signature and would have done so had Joan's sudden death not intervened."

5.        Despite her frailty, Advocate Falle confirmed to us in evidence that there was no question in his mind as to her capacity to give instructions in relation to her testamentary affairs and there was no indication that her death was in any way imminent.  However she died unexpectedly on 5^th January 2017, some six weeks after the meeting. 

6.        On 24^th January, 2017, Advocate Falle renounced the office of executor, signing the standard form 22 (from the Probate (General) Rules 1998) which recites the existence of the Will and contains the following preamble:-

"WHEREAS the said Deceased died on the fifth day of January 2017 without revoking the said Will".

Advocate Falle told us that in signing this standard form of renunciation, he did not focus on the preamble; in fact in his view the Will had been partially revoked by way of Mrs Webb's oral declaration made in his presence.

7.        On 26^th January, 2017, a grant of probate was issued to Bois Executors Limited in these terms:-

"AND BE IT FURTHER KNOWN that on the twenty-sixth day of January in the year two thousand and seventeen the last will and testament (a copy whereof is hereunto annexed) of the said deceased was proved in the Probate Division of the Royal Court of the Island of Jersey and duly registered an Officer of Bois Executors Limited which Company is the alternate executor named in the said will having first subscribed and sworn the usual oath that the said Company will execute the said will and well and faithfully discharge the duties of the office of executor."

8.        Annexed to the probate was a copy of the Will.  No reference was made to the Will having been partially revoked.  Pursuant to the terms of the Will, Bois Executors Limited was required to distribute the rest or residue of the estate to Mrs Webb's nephew Michael Gray and her niece Anne Cullinane in equal shares, both of them having survived Mrs Webb. 

9.        The affidavit of Advocate Clare Louise Nicolle of 13^th February, 2019 sworn in support of the representation explains that on 19^th June, 2018, Voisin Executors were approached by BoisBois to act as executor in the place of Bois Executors Limited, as it found itself in a conflict position due to a possible revocation of the Will. Consequently, on 12^th July, 2018, Bois Executors Limited retired as executor and Voisin Executors was appointed to act as executor in its stead.  Attached to the probate in favour of Voisin Executors was again a copy of the Will, which it swore to execute.  There was no reference to any partial revocation.

10.      On 25^th January, 2019, Advocate Falle wrote to Advocate Nicolle, in response to her request, giving an account of the facts surrounding the revocation in the same terms as that contained within his affidavit.  In his affidavit, as in his letter, Advocate Falle gives his opinion as to the effect of the revocation.  Quoting from his affidavit at paragraphs 15, 16 and 17:-

"14      It is clear that Joan's revocation might have been made with her last dying breath.  Such a declaration made in the same way in extremis at her bedside would have been no more nor less effective than the revocation communicated to me some six weeks earlier and equally would not have been contingent upon subsequent confirmation by codicil to take effect."

15       The revocation of the gift of residue to Michael did not call for any amendment to Joan's will in order to secure Anne's interest in the whole.  The gift of residue was drawn to avoid the possibility of lapse by providing if one of the named legatees did not survive the Testator the whole residue would pass to the survivor; but if both survived, they would take equally.  A lapse therefore would occur only in the event that both named residuary legatees failed to survive the Testator and in which event the gift would fail and the whole residue pass to the heirs on intestacy.  This simple clause does not admit of any other construction.  Thus Michael's interest having been revoked by Joan, he could not have survived her as a beneficiary and it follows that on Joan's death the whole residue passed to Anne.

For the avoidance of doubt, I have to point out that the meaning of the verb "to survive" is not limited to "continuing to live after the death of another" but includes living after an event or happening of some kind e.g. surviving a test or an unhappy experience, or, as in this case, surviving the elimination of Michael as a beneficiary.  The gift to Michael did not survive its revocation by Joan.  It is therefore not necessary to rely upon common sense when construing the meaning of "I give and bequeath the same to such of my nephew Michael Gray and my niece Anne Cullinane as shall survive me".  Having regard to the elimination of Michael as legatee the survivor is Anne.  It would strain common sense and certainly defeat the intention of the Testator to construe the gift of residue in any other way.

17.      Formerly, the position of the heir by Custom was stronger than that of the legatee.  A will was in some degree regarded as a fraud upon the heir.  The result was that any defect or ambiguity in a will could give rise to an action at the instance of the heir aimed at striking down the gift or provision in question.  Custom has long since changed.  The presumption in favour of the heir no longer applies.  Indeed it is reversed and the Court when confronted with a dispute over construction, will construe a will as far as possible to give effect to the intention of the testator.  This overriding principle of construction was laid down by the Royal Court in re the Will of Father Amy, a leading modern case where I appeared for the successful party."

11.      Advocate Nicolle identified two possible alternate scenarios:-

a)     Mrs Webb's instruction to revoke the gift of a half share in the residue of the estate in favour of Michael Gray was dependent upon such half share passing to Anne Cullinane.  That half share cannot pass to Anne Cullinane as no codicil was produced.  Consequently, as the condition was unfulfilled, the revocation did not take effect and the residue of the estate must be distributed according to the terms of the Will.

b)    Mrs Webb's instruction to Advocate Falle to revoke the gift of a half share in the residue of the Estate in favour of Michael Gray was unconditional and took place with immediate effect.  Mrs Webb therefore died intestate in respect of that half share.

12.      The representation of Voisin Executors sought answers to the following questions:-

"a.       Did Mrs Webb revoke part of her Will by her words to Advocate Falle at their meeting on 30 November 2016?

b.        If so, which part of the Will did she revoke?

c.        As a consequence of Mrs Webb's partial revocation of her Will is Anne Cullinane entitled to the whole or half of the residue of the estate of Mrs Webb?

d.        If Anne Cullinane is entitled to half of the residue of the estate who is entitled to the other half of the residue of the estate?

e.        If Mrs Webb did not revoke part of her Will should the estate be administered in accordance with the terms of the Will."

The law

13.      As Le Gros says in his Droit Coutumier de Jersey at page 124 "Le testament est un acte révocable à volonté".  The law as to how a testator can revoke a will is succinctly summarised in this passage from the judgment of Ereaut, then Deputy Bailiff, in the case of In the matter of the will of Beaugié [1970] JJ 1579 at page 1585:-

"Basnage, Commentaire sur la coutume de Normandie, 3rd ed., vol. 2, art. 412, at 171 (1709), says -

'... la révocation se peut faire par le témoignage d'une volonté contraire ;'

Revocation requires an act of revocation, accompanied by the intention to revoke ("animus revocandi").  Thus, "prima facie" any act evidencing an intention to revoke is sufficient, for example, the destruction of a Will with the intention of revoking it, a simple declaration that the Will is revoked, and the making of a subsequent testamentary instrument, the provisions of which are wholly or in part inconsistent with the provisions of the earlier instrument."

14.      In the case of In the estate of Bull [1999] JLR 228, the Court held that the signing by the testator of a will drafted by a neighbour, (and subsequently lost), in which he declared his intention to revoke all previous wills, was conditional upon there being a new will giving effect to his new wishes, and not absolute.  The doctrine of dependent relative revocation applied and the previous will stood.  Sir Peter Crill, then Commissioner, said this at page 234:-

"It is accepted on all sides that the draft will is in fact a draft will and not a testamentary disposition.  But it does contain the words of revocation which I have already mentioned.  They have already found that it was signed, but without a copy of it, it is impossible to say whether it is in fact a valid testamentary disposition, and as we have said, none of the parties suggests that it is.  But of course, in order to revoke an existing will, it is not necessary to do so by the means of another testamentary disposition; it may be effected by other means such as tearing it up, or writing cancelled across it, provided always that the intention is clear." (our emphasis)

15.      He went on to say at page 235:-

"In Perrier the following two passages were quoted from the speech in Re Jones of Roskill, L.J., a very distinguished judge ([1976] 1 All E.R. at 603):

'In short in a case where the revocation purporting to be effected by mutilation or some other method of destruction is 'conditional' in the sense that I have described and the 'condition' is not fulfilled, the act of revocation is itself not fulfilled; it is ineffective because it was subject to an unfulfilled condition. But if the revocation is 'absolute' in the sense in which I have used that word, then that revocation takes immediate effect, even if the result may subsequently bring about an intestacy, or some result which it is difficult to believe the testator can have intended in his or her lifetime'.

As to 'conditional' and 'absolute', his Lordship in Re Jones earlier said (ibid., at 602):

'By 'conditional' is meant that the efficacy of the revocation was to be dependent on the bringing into existence subsequently of a valid testamentary disposition, or of the existence or future existence of some fact .... By 'absolute' is meant that the revocation was to take effect at once, irrespective of the bringing into existence subsequently of a valid testamentary disposition, or of the existence or future existence of some fact."

16.      In the case of In the matter of the Will of Futter [2000] JLR 344, the Court held that the will of movable estate of the testator had been revoked by letters sent by him.  His intention in writing those letters, which was a question of fact, showed that he had intended that the will be revoked and the act of writing the letters combined with that intention, was enough to revoke the will.  The letters were described in this way at page 349:-

"On January 7^th, 1992 he wrote: 'Would you kindly cancel my will which the late Advocate Stone ...  Trusting this can all be settled now without further ado.'

And on January 16^th, 1992, the testator wrote: 'I can remember, I think, Advocate Stone took all particulars of my will when I was in hospital.  I now want this to be null and void.'"

17.      It is clear from these authorities that an intention to revoke is not of itself sufficient.  Great uncertainty in testamentary affairs would ensue if that were the case.  It must be accompanied by "an act of revocation", that is an act which is of itself revocatory in nature.  Tearing up the will is clearly an act of revocation, or writing "Cancelled" or "Revoked" across it, or writing in the absolute terms seen in Futter.  Can an oral declaration constitute an act of revocation?

An oral declaration as an act of revocation

18.      Whilst the Court in Beaugie referred to a short extract from Basnage, the principle expounded by the Court, namely that revocation requires an act of revocation accompanied by the intention to revoke, applies equally under English law.  Quoting from Halsbury's Laws of England 5th edition, volume 102 at paragraph 93:-

"93 Intention to revoke.

To effect a revocation there must be an intention to revoke, and a will is not revoked by any presumption of intention based on an alteration of circumstances.  If anything is done by the testator or by his direction which, if there were an intention to revoke, would amount to a revocation, the presumption of law from that act is in favour of the existence of the intention to revoke, but this presumption may be rebutted by evidence showing that that intention did not exist.  An act done without that intention is wholly ineffectual, even if the act results in the destruction of the will.  Thus no revocation results where a testator destroys the will through inadvertence, or under the belief that it is useless or invalid, or has already been revoked, or where he is drunk at the time of an alleged revocation or where he is suffering from mental disorder at the time, even though he subsequently recovers.  Similarly, an express revocation clause in a subsequent, duly executed, will may be ineffective if it is made under a mistake or in the belief that some other disposition will take effect which in fact does not.

There must be an act of revocation accompanying the intention to revoke, and the expression of an intention to revoke at some future time or by some future instrument is not sufficient.  The fact that the act and intention of revocation are accompanied by an expression of intention to make a new will which is not in fact made does not prevent the revocation from being effective.

The intention to revoke may be evidenced by the declarations of the testator, especially if those declarations were contemporaneous with the act of revocation, or that intention may be inferred from the nature of the act done.

Once the execution of a will is proved, the burden of showing that it has been revoked lies on those who seek to establish revocation, and, in the absence of proof, revocation is not presumed." (our emphasis)

19.      Caution is required in having regard to English law, because the methods by which a will can be revoked were restricted under the Statute of Fraud 1677 and then under the Wills Act 1837.  Section 20 of the Wills Act provides as follows:-

"No will to be revoked but by another will or codicil, or by a writing executed like a will, or by destruction.

No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is herein-before 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."

Thus under English law from a very early date a will could not be revoked by oral declaration.

20.      It seems clear that the English law position prior to the introduction of these statutory restrictions was that a will could be revoked by an oral declaration.  There are two cases cited to us that make this clear and we set out the short reports because they are illustrative of the kind of language used to achieve an absolute oral revocation, at least under English law.  We take first the case of Burton and Estove v Gowell (1592) Cro, Eliz. 306, 78 E.R. 557:-

"A will in writing may be revoked by a parol declaration importing a present intention...

Trespass.  Upon special verdict the case was, J.S. was seised in fee of land, and by his will in writing made at Pulham, devised the land to the defendant; and after at Sterston lying sick dixit and declaravit, that his will made at Pulham shall not stand.

The question was, if this were a revocation, because it was by word only, and by words in futuro, and not in præsenti?

To the first it was resolved, that a will may be revoked by parol only; and so is Harrison's case, 14 Eliz. Dyer 310. b.

To the second it was said, that verba in futuro shall be taken futurely when they refer to a future act, otherwise when they refer to a present resolution.  But by Popham, if he had said, "I will revoke my will made at Pulham" this is no present revocation, for it referred to a future act (a).  But when he saith, "It shall not stand;" this takes effect presently: as if I say to another, "You will have my land for ten years;" this is a present lease - And it was adjudged a revocation (b)."

21.      Similarly in the case of Fitzhugh Cranvel v Sanders [1618] Cro. Jac 497:-

"Words in the future tense expressive of a testator's intention to revoke his will can never amount to a revocation; but if he say, "I do revoke it," it is sufficient...

A testator must be of sound mind to revoke his will. 6 Co. 23. a. Powel on Dev. 145.

Ejectment.  Upon evidence to a jury, it was resolved by the Court, and so delivered to the jury, that if one make his will in writing, of land, and afterward upon communication saith, that he hath made his will, but that it shall not stand; or "I will alter my will, &c." these words are not any revocation of the will, for they are words but in futuro, and a declaration what he intends to do: but if he saith, "I do revoke it, and bear witness thereof," he hereby absolutely declares his purpose to revoke it in præsenti, and it is then a revocation (a).

Also Montague said to the jury, and it was not denied by any other of the justices, that as one ought to be of good and sane memory at the disposing, so ought he to be of as good and sane memory when he revokes it; and as he ought to make a will by his own directions, and not by questions, so ought he to revoke it of himself, and not by questions (b)."

22.      The English cases cited to us that post-date the English statutory restrictions are concerned in the main with wills that have been found to be torn, cut, defaced or otherwise mutilated, so that there was clear evidence of an act of revocation.  The issue was whether that act was accompanied by an intention to revoke.  In the case before us, by way of contrast, we accept from the evidence of Advocate Falle that Mrs Webb had the intention of giving the residue of her estate to Anne Cullinane, which when put into legal effect would either expressly or by implication have revoked the gift of residue to Michael Gray, but the issue is whether there was an act of revocation. 

23.      The statutory restrictions which apply under English law have no application here.  There is nothing to indicate that our customary law prescribes any particular formality for the revocation of a will provided that there is an act of revocation, accompanied by the intention to revoke ("animus revocandi").  We therefore accept that under Jersey law, an oral declaration made before a witness can constitute an act of revocation.  Whether there has been an effective oral declaration will be a matter of evidence and will depend upon an analysis of the words used.  They must be clear and unambiguous and be expressed in absolute terms so as to take effect at once (we are not concerned here with a conditional revocation) and be accompanied by the intention to revoke ("animus revocandi"). 

24.      It is possible for a will to be partially revoked in writing and we see no reason why an oral revocation should be any different, save that it would need to be absolutely clear as to what part of the will was being revoked. In the case say of a pecuniary legacy of £X to Y contained within a will, a simple oral declaration in the presence of a witness "I hereby revoke the pecuniary legacy of £X to Y" accompanied by an intention to revoke may suffice.  Orally revoking a contingent interest in the residue may be more challenging as we comment later.  

25.      This is the first time that the validity of an oral declaration revoking a will has come before the Court indicating that it is a rare occurrence.  It is a very unsatisfactory way of managing ones testamentary affairs, firstly because of the need to prove the declaration through the evidence of the witness, with all the potential uncertainty over the circumstances in which the declaration was made and the words used that might arise from that, and secondly because setting up an oral revocation against a written will is very likely to give rise to litigation, as it has here. There are very good reasons, therefore, for the restrictions long ago imposed by statute under English law that any declaration revoking a will should be in writing.  If, unusually, an oral declaration has been resorted to, it would be important to have it reduced to writing with the minimum of delay.  

Advocate Falle's Notes

26.      We heard evidence from Advocate Falle because, by his own admission, his handwritten notes were illegible.  He was able to transcribe them for us.  We take first the note he made during the meeting with Mrs Webb:-

"Joan Webb                                                                             30/xi/16

Bachins sold

______________

Anne to have residue

______________

Tell Joan how much money left

______________

Nephew is invalid

And done nothing for you

__________

Anne has your rings and you gave them to her years ago

__________

Anne have all your private things"

27.      When he returned to his office, he made a more legible note in almost identical terms:-

"MS [manuscript] Copy

Joan Webb                                        30/xi/16

Bachins sold

Anne to have residue

Tell Joan how much money left

Nephew is invalid and does nothing for you

Anne has rings        You gave them to her years ago

______________

Anne to have all your private things

______________

NB   The original scribble remains between BAM and GFC 1.xii.16"

28.      He told us that the purpose of the NB at the end was to enable him to find where the original note was contained between notes made involving other clients.

29.      The original note was retained by Advocate Falle and, as we understand it, not placed with the Will.  It is manifestly not a testamentary document in that it simply contains his note of what was said at the meeting with Mrs Webb, but it cannot, and it was not asserted that it could, constitute an act of revocation.

Submissions

30.      Mrs Cullinane was represented at the hearing by Advocate Turnbull, who was advancing the case that she should receive the whole of the residue.  Although Mr Gray came over from England to attend the hearing, Advocate Hoy, for the executor, advanced the case that there had been no revocation, so that Mr Gray would share equally in the residue.  It was helpful for Advocate Hoy to advance the contrary argument that there had been no revocation.

31.      We were advised that the residue of the estate was some £87,000, excluding the cost of administration and the costs of the application.  Advocate Hoy informed us that his firm's costs, including the application, amounted to £6,800.  Advocate Turnbull informed us that his firm's costs for the hearing alone were £12,415. This does not include the cost of further research the Court asked counsel to carry out.

32.      Both counsel agreed that an oral declaration made in the presence of Advocate Falle could constitute an act of revocation, and that it was Mrs Webb's intention on the 30^th November, 2016, to benefit Anne Cullinane with the whole of her residuary estate.  We agree that this was her intention.

33.      In summary Advocate Hoy submitted:-

(i)        The only evidence of a declaration by Mrs Webb are her words "Anne to have residue".  This could only have been effected by a subsequent will or codicil which either expressly or by implication would have revoked the contingent bequest to Michael Gray. 

(ii)       A simple revocation of the bequest to Mr Gray, if there had been one, would not address the issue of the contingency interest of Anne Cullinane as the remaining residuary beneficiary.  He disagreed with Advocate Falle's view that the meaning of the verb "to survive" is not limited to continuing to live after the death of another, but includes living after an event, such as, Michael Gray's elimination as a beneficiary.  The words used in the rest or residue clause were clear as to their meaning, "as shall survive me", and therefore the issue of contingency remained in play.

(iii)      A simply expressed revocation of the bequest to Mr Gray, if there had been one, would not carry out the stated intention of Mrs Webb as described by Advocate Falle, as that could only be done by a new or amended will, requiring testamentary formality and that did not occur prior to Mrs Webb's death. 

(iv)      Advocate Falle's affidavit suggests that Mrs Webb intended to revoke the bequest to Michael Gray by implication by the bequest of the whole of her residuary estate to Anne Cullinane.  The Court though cannot redraw Mrs Webb's will where she has not done so herself.  In this respect, he referred to the following passage from the judgment of Ereaut, then Deputy Bailiff, in Beaugie and this in the context of the doctrine of dependent relative revocation:-

"From the authorities which we have cited, it appears to us that when asked to apply the doctrine of dependent relative revocation to a case where there is a subsequent testamentary instrument expressly revoking an earlier instrument, the Court should have regard to the following principles:

1.     It is the duty of the Court to endeavour to collect and give effect to the manifest intentions of the testator, but it is restrained from any efforts to make a new or different Will for the testator where he has not made it himself.

......" (his emphasis)

34.      In summary Advocate Turnbull submitted:-

(i)        Mrs Webb intended to revoke the disposition of the residue of her estate to Michael Gray.  She summonsed Advocate Falle to attend upon her and specifically instructed him that she had determined (using Advocate Falle's words) "to revoke the gift of residue previously made ......".  This was an act of revocation sufficient, under Jersey law, to have partially revoked her will. 

(ii)       The partial revocation of the will served to remove Michael Gray as one of the two residuary beneficiaries in much the same way as his death would have done, leaving Anne Cullinane as the sole residuary beneficiary.  Anne Cullinane was the only "surviving" residuary beneficiary as indicated by Advocate Falle in his affidavit, and the residue clause in the Will, when properly construed, therefore provides that the whole of the residue of Mrs Webb's estate would pass to Anne Cullinane. 

Decision

35.      The only evidence as to what Mrs Webb said on 30^th November, 2016, is that of Advocate Falle and we make the following initial observations:-

(i)        Advocate Falle's evidence as to fact (i.e. what Mrs Webb said) was not challenged in any way and we accept it. 

(ii)       We proceed on the basis that Advocate Falle has recounted everything that he remembers from the meeting, aided by his note, that is relevant to this issue. 

(iii)      It is important to distinguish between his evidence as a witness of fact as to what Mrs Webb actually said in his presence on the one hand and his own assessment of her intentions and, indeed, his opinion as to the legal consequences on the other hand. 

36.      The key paragraph in his affidavit is paragraph 11.  All but the last sentence of that paragraph constitutes his evidence as to what Mrs Webb said to him.  There is a difference between the words he uses in the affidavit, namely that the residue "would now go to Anne alone" and his note, which reads "Anne to have residue".  We think that the latter is the better record of the actual words used by her because it is contemporaneous. 

37.      The last sentence of paragraph 11, upon which Advocate Turnbull relies, seems to us problematic:-

"She determined in consequence to revoke the gift of residue previously made in Michael's favour". 

What she said was that Anne Cullinane was to have the residue and whilst a consequence of that, when put into legal effect, would have been to revoke the gift of residue to Michael Gray, is there any evidence of her making an oral declaration revoking the gift of residue to Michael Gray with immediate effect?  As Advocate Hoy submits, her intention to benefit Anne Cullinane could only be effected by a subsequent will or codicil, by which Anne Cullinane would receive the residue and by which, expressly or by implication, the gift of the residue to Michael Gray would be revoked.   

38.      Advocate Falle says at Paragraph 12 of his affidavit that he was conscious at all times in his meeting with Mrs Webb that the law does not prescribe any particular form or formality for revocation, save that the act must be done animus revocandi, but no advice was given to her to this effect.  There was no discussion about how her intention to give the residue to Anne Cullinane was to be carried out.  Was it to be by a new will or codicil (we suggest this would be the most usual course) or was it to be achieved by the indirect method of an oral revocation of the gift of residue to Michael Gray leaving Anne Cullinane as the sole residuary beneficiary (which we suggest would be unusual).  There was no evidence of any urgency in carrying out her intentions in that Mrs Webb's death six weeks later was unexpected, but if after discussion she wanted to achieve her intention of benefitting Anne Cullinane immediately by orally revoking the gift of residue to Michael Gray, then she would have to make a clear and unambiguous oral declaration to that effect.  There is no evidence of her making an oral declaration revoking the gift to Michael Gray in any, let alone absolute, terms either from Advocate Falle's memory of the meeting or from his note.  According to the note she never used the word "revoke" and indeed if she had made such a declaration Advocate Falle would surely have made a note of it.

39.      It also seems to us that the form of any oral declaration would not be straightforward if it was to achieve her intention that Anne Cullinane was to receive all of the residue.  If Michael Gray had been a beneficiary of a specific or pecuniary legacy, then Mrs Webb could have orally declared that legacy to be revoked absolutely, without in any way affecting the other provisions of the Will.  Here we are dealing with the residuary provisions of the Will, which provided for Michael Gray and Anne Cullinane to receive half, all or nothing, dependent upon the contingency of survivorship.  Any oral declaration revoking the interest of Michael Gray would have to be carefully expressed, to ensure that her intention that Anne Cullinane should receive the whole of the residue would be achieved and that no partial intestacy resulted. 

40.      Advocate Turnbull set out how the residue clause could be interpreted to be read, in order to give effect to a simple declaration, if one had taken place, to ensure that Anne Cullinane received the whole of the residue and to avoid an intestacy of Michael Gray's contingent interest.   The following words would have to be crossed out:-

"AND as for the rest and residue of my estate whatever and wherever situate at the time of my decease I GIVE AND BEQUEATH the same to such of my nephew MICHAEL GRAY and my niece ANNE CULLINANE as shall survive me and if both in equal shares for themselves absolutely without reserve."

41.      He cited the judgment of the Court of Appeal in the case of In the Estate of Father Amy [2000] JLR 237, which concerned the interpretation of a will, and in which the Court held at page 243 that the Court's primary duty is to construe the will so as to give effect to the testator's intention, to be ascertained from the wording of the will, together with any evidence of surrounding circumstances, and other evidence properly admissible.  He submitted that the Court should therefore interpret the rest and residue clause in the light of Mrs Webb's partial revocation to give effect to her intention. 

42.      As with contracts, the intention of a testator must be ascertained at the date that the will was executed.  Quoting from page 242 of the judgment, the testator's intention is to be determined:-

"....primarily by interpretation of the express wording of the will, interpreted as a whole and in the light of the material surrounding circumstances.  Material surrounding circumstances in relation to a will are determined in a similar manner as in relation to a contract.  In the case of a contract the court is required to place itself in the position and with the mutual knowledge of the contracting parties at the date of the contract.  In the case of a will the court is required to place itself in the position and with the knowledge of the testator at the date of the will." (Our emphasis)

43.      The Court cannot, therefore, interpret the rest and residue clause of the Will in the light of Mrs Webb's subsequent intention to benefit Anne Cullinane, unless and until she has made an effective oral and absolute declaration revoking the will in part.  The problem with Advocate Turnbull's submission is that there is no evidence of such a declaration.  

44.      We think it reasonable to suggest that in summoning Advocate Falle to Silver Springs Care Home to review the Will it would have been Mrs Webb's expectation, being a written document that any changes would be in writing.  However if for some reason not explained to us it was imperative for the change to take place immediately, then a simple codicil could have been written out in hand by Advocate Falle and executed by Mrs Webb in his presence and in the presence of a member of staff at the home.  There would have been no need to rely upon an unusual and inherently unsatisfactory oral declaration. 

45.      Our conclusion from the evidence before us is that at the meeting with Advocate Falle on the 30^th November, 2016, Mrs Webb did express the intention of giving the whole of the residue of her estate to Anne Cullinane, which when put into legal effect would either expressly or by implication have revoked the gift of residue to Michael Gray, but that there was no act of revocation of the gift of residue to Michael Gray by way of a clear and unambiguous oral declaration to take effect at once.

46.      The unfortunate consequence of our finding is that Mrs Webb's intention that Anne Cullinane should receive the whole of the residue of her estate has not been put into legal effect, an outcome we regret.  There was no act of revocation and the Will stands.  We will therefore direct Voisin Executors to administer the Will in accordance with its terms. 

47.      Voisin Executors found itself with a clearly worded Will, under which Michael Gray and Anne Cullinane share the residue equally and which it had sworn to administer in accordance with its terms, only to be told that six weeks prior to her death, Mrs Webb revoked the gift to Michael Gray orally at a meeting with her lawyer.  Having received this information, Voisin Executors had no alternative in our view other than to seek the directions of the Court, with all the costs that go with that.  The ensuing litigation has no doubt given rise to some distress on the part of both Michael Gray and Anne Cullinane in circumstances where giving legal effect to Mrs Webb's intentions would have been so simple to achieve. 

Authorities

Probate (General) Rules 1998.

Droit Coutumier de Jersey at page 124

In the matter of the will of Beaugiè [1970] JJ 1579 at page 1585

In the estate of Bull [1999] JLR 228

In the matter of the Will of Futter [2000] JLR 344

Statute of Fraud 1677

Wills Act 1837

Burton and Estove v Gowell (1592) Cro, Eliz. 306, 78 E.R. 557

Fitzhugh Cranvel v Sanders [1618] Cro. Jac 497

In the Estate of Father Amy [2000] JLR 237