Jersey Unreported Judgments

Probate

[2024]JRC180

Royal Court

(Samedi)

9 September 2024

IN THE MATTER OF THE LATE PAUL GLANVILLE HARTOPP

AND IN THE MATTER OF THE PROBATE (JERSEY) LAW 1998

Advocate N. P. B. Le Quesne for the Representor.

judgment

the COMMISSIONER:

Introduction

1.        This is an application to admit to probate a photocopy of a Will in respect of the Jersey assets of the late Paul Glanville Hartopp ("the Deceased").

2.        The deceased made and duly executed two Wills, one for his assets in South Africa and one to cover assets in the United Kingdom, Guernsey and Jersey.  We refer to these Wills as the South African Will and the non-South African Will respectively.

3.        The original of the non-South African Will cannot be located.

4.        The non South African will appointed Buckles LLP, English Solicitors, and a Michael Pare as executors.  Mr Pare has renounced the executorship of the deceased's Jersey estate.  Buckles, on 23 July 2024, appointed CLQ Probate and Attorney Services to bring the present application and to apply for a Jersey grant of probate on behalf of Buckles.

5.        It is also right to record that Buckles made an application to the High Court of Justice in England and Wales seeking an order that a copy of the non-South African will be admitted to probate.  That application was granted, and probate was issued by the English Probate Registry on 5 June 2024.

6.        The background to the present application is as follows.

7.        The Deceased signed the non-South African Will on 7 June 2022, following correspondence between Buckles and the deceased.

8.        There were two witnesses to the non-South African Will, Tanea Botha and Allen Spooner.  Both were friends of the deceased and have provided sworn statements confirming that they were the witnesses to the non-South African Will.

9.        We have also been provided with a statement from Duard Botha, the husband of Tanea, who was also present during the execution of the Will.  He has also explained how a manuscript alteration was made to the typed Will prepared by Buckles to insert the name of the deceased's wife, Adinda Hartopp ("Adinda"), prior to execution of the non-South African Will.  This manuscript alteration was witnessed by the Deceased and the two witnesses, each placing their initials next to the manuscript amendment.  The effect of the addition was to add Adinda to the class of beneficiaries created by the non-South African Will.

10.     Mr Botha's affidavit also explained that immediately after the Will was signed, he scanned the non-African Will as a PDF for the Deceased and then helped him send a copy to Buckles.

11.     It is right to record that the Deceased at this stage was very unwell, and he passed away on 18 June.

12.     It is also right to add that there are no circumstances that have been drawn to our attention suggesting that the Deceased did not have capacity to make the non-South African Will, notwithstanding that he was very unwell at the time this will was executed.

13.     After the Deceased had passed away, Miss Julie Cook, a solicitor employed by Buckles asked Adinda for the original Will.  However, what was sent was only a copy and not the original.  Miss Cook discussed what had happened to the original with Adinda in a call on 5 January 2023.  Adinda confirmed that she had kept the original Will in a drawer at the family home when it had been signed and no one else had had access to it.  Adinda believed she had posted the original to Buckles and could not explain otherwise what had become of it.

14.     In light of the above background, it was contended on behalf of Buckles that there was no record of the deceased having destroyed or revoked the non-South African Will.  Nor did Buckles have any reason to believe that the non-South African Will had been amended destroyed or revoked.  That is not surprising given that the Deceased passed away eleven days after he executed the non-South African Will and at times was in a coma.

15.     As noted in the decision of the Estate of Greig [2006] JRC 058, it is well established that the Court can admit a photocopy of a will to probate if it is satisfied that it is a copy of the original which has been properly executed but which cannot now be found.  We are satisfied that this principle is met in this case.

16.     We are also satisfied that the principle referred to in paragraph 11 of the Estate of Greig decision, that the prima facie presumption that if a will cannot be found, means that it has been destroyed with the intention of revoking it, is also rebutted in this case.  We are satisfied that the Deceased intended upon his death that the Will executed on 7 June 2022 relating to his non-South African assets should be operative for the benefit of those named in it including Adinda.  In particular, it is clear to us that, notwithstanding his serious ill health at the time, the Deceased went to significant efforts to ensure that a will of his non-South African assets was executed and that his wife's name was added to the class of beneficiaries.

17.     Finally, we are satisfied that the Will was executed in accordance with the law of Jersey because it was executed by the deceased in the presence of two witnesses who both attested then and there to his signature.

18.     In all the circumstances, we declare the non-South African Will dated 7 June 2022 was properly executed, it has now been lost and we therefore order that the photocopy of this will be admitted to probate in this jurisdiction.

Authorities

Estate of Greig [2006] JRC 058.