Lamothe v Lamothe & Ors

When deciding which testamentary document should be admitted to probate, the court may investigate the testator’s intention and consider extrinsic evidence about the circumstances in which the document was prepared and executed. The existence of an express revocation clause is strong evidence of an intention to revoke, but it creates no irrebuttable presumption. The party seeking to displace the clause bears a heavy evidential burden, assessed on the balance of probabilities. Administration of Justice Act 1982 does not remove the pre-existing probate jurisdiction to investigate intention. The court must distinguish that jurisdiction from the narrower function of construing a will after admission to probate.

The claim concerned the administration of Catherine Agnes Lamothe’s estate. She had made an English will in 1993 and a Dominican will in 1995. The later will contained an express clause revoking all former wills and a residuary gift of property wherever situated.

The claimant sought revocation of the grant of probate of the 1993 Will and a grant in respect of the 1995 Will. Certain defendants argued that the 1995 Will was intended to deal only with property in Dominica, and sought admission of both wills with the revocation clause omitted. The central questions were whether extrinsic evidence was admissible to determine the deceased’s intention and whether the evidence displaced the apparent effect of the revocation clause.

1. Admissibility of extrinsic evidence. The court was acting first as a court of probate, deciding which will or wills should be admitted, rather than as a court of construction interpreting an instrument already admitted. In that probate function, it was open to the court to investigate the testator’s animus testandi and animus revocandi and to consider evidence outside the wills. In the Goods of Oswald, O’Learly v Douglass, In Re Morris dec’d and Re Resch’s Will Trusts supported the distinction between the two jurisdictions.
2. Effect of the 1982 Act. Sections 20 and 21 of the Administration of Justice Act 1982 did not remove the pre-existing power of a probate court to consider extrinsic evidence when determining whether a later will revoked an earlier one. Section 20 addressed rectification. Section 21 concerned interpretation and did not govern the prior question whether a testamentary document should be admitted to probate.
3. Revocation clause and burden. An express revocation clause is powerful evidence of intention, but the court must determine whether it was accompanied by an actual intention to revoke. The burden on a party seeking to prevent the clause from taking effect is heavy, but remains the ordinary balance-of-probabilities standard. Lowthorpe-Lutwidge v Lowthorpe-Lutwidge and Nemes v Baker were understood in that way.
4. Application. The wording of the 1995 Will, particularly the reference to property wherever situated, initially created doubt. However, Ronald Lamothe’s evidence that the deceased had been advised that the 1993 Will would be revoked, had considered the matter and had decided to proceed was clear and reliable on that issue. The court found clear and unequivocal evidence that revocation was intended.
5. The claimant was therefore entitled to the relief sought. The interests of other grandchildren potentially affected by the judgment had to be notified before the judgment could be implemented.

First-instance decision. No appellate history was stated in the judgment.