Question Two; LPQE Probate and Succession Final Exam: July 2005

Patrick Musonda, whom you know, died 2 months ago a very wealthy man. In your office you have
Martha, Patrick’s oldest daughter and Blandina, Patrick’s widow. They have a problem.
Martha produces a will made by Patrick 6 years ago. You notice the will starts by revoking all former wills
and appoints Martha executrix. The will shows that a large portion of Patrick’s property is to go to Martha
“her sisters and brothers”. You notice that it has two dates at the end, one 6 years ago and the other three
months ago, and it has seven signatures two of which look alike but in different colour ink.
Blandina produces a will dated three years ago which also begins by revoking all former wills and declares
it is the only and last will of Patrick and Blandina is appointed executrix. In this will Blandina is given a
large portion of Patrick’s property with almost nothing to any one else.
Martha says Blandina, who is a stepmother, was not a good wife to Patrick and believes the will produced
by Blandina must have been either forced on her father or her father must have been tricked somehow.
Blandina, while admitting that she did not have a good relationship with Patrick, says that the important
thing is that she has his will which she is happy with and it even revokes all other wills. Can you assist the
two?

I would begin assisting Martha and Blandina by explaining to them how a probate court
would determine which will (or which parts of each will) to admit to probate i.e. to
determine which will, or parts of each will, are valid in determining how to appoint the
executrix and dispose of Patrick’s estate.
I would first point out that merely stating (as the will dated three years ago and produced
by Blandina states) that the will is “the only and last will” of Patrick is not, of itself,
conclusive that the will in question is the valid one, revoking (i.e. invalidating or
annulling) all previous will. Thus in Simpson v Foxson [1907] a man executed a will in
1898 giving away all his property and appointed his daughter to administer his estate. In
1903 he executed a document on a printed form stating “This is the last and only will of
me” where he gave away the proceeds of an insurance policy and appointed another
person to administer his estate. In 1905 he executed another document described as a
“codicil to the last will” in which he made other gifts and appointed other executors. It
was held that the words “last and only” in the 1905 document didn’t prevent admission
into probate of all three documents. The later will must contain an express revocation
clause showing intention on the part of testator to revoke his former will.
In this instance both wills have express revocation clauses purporting to revoke (i.e.
annul) all former wills. However, for these clauses to be effective they must comply with
the provisions of s.13 (1) of the Wills Act that gives three ways of revoking a will, the
relevant way here being the one detailed in s.13(1)(a).
This provides that a will (or any part of the will) may be revoked by “a later will or
codicil duly executed and expressed to revoke the earlier will”. Thus, in accordance with
s.13 (1)(a) a revocation clause expressly revoking all former wills is effective provided
(a) it is contained in the will and (b) the will is “duly executed” i.e. executed in
accordance with s.6 (1) of the Wills Act.
S.6 (1) requires that for a will to be valid it has to be (a) in writing, (b) signed at the
foot/end by the testator (or someone else at his direction) (c) two witnesses together have
to witness the testator (or the other person signing at his direction) signing the will or
acknowledging the signature and (d) the witnesses must also sign at the foot/end.
Assuming that the will produced by Blandina, dated three years ago, was “duly executed”
(it is not clear from the question that it was) this would, other things being equal, revoke
the will produced by Martha and drawn by Patrick six years ago. However, this “first
will” produced six years ago has two dates on it. One dated when it was produced six
years ago and one dated just three months ago. This brings us to a second important issue,
whether a revoked will can be “revived” and if so, what the effect of such “revival” is.
A revoked will can be revived if done in accordance with s.15 (2) of the Wills Act. This
provides for two methods of reviving a revoked will and states “A will which has been
revoked may be revived by (a) re-executing it; or (b) executing a codicil in accordance
with the provisions of section six, which shows an intention to revive that will.
The will produced by Martha appears to be so re-executed in accordance with the
provisions of s.6 (1) as stipulated in s.15 (2). It has two dates at the end, one 6 years ago
and the other three months ago, and it has seven signatures two of which look alike but in
different colour ink. Assuming that the two similar signatures in different colour ink are
those of Patrick and assuming that of the five other signatures, at least two were made six
years ago and two three months ago, and were made in the presence of Patrick when he
made his signature (or acknowledged it), then this will was re-executed and so revived in
accordance with s.15 (2)(a) of the Wills Act.
I would then explain to Martha and Blandina what the effect of reviving this will was by
telling them that s.13 (3) of the Wills Act states that the effect of revival is that the
original will is deemed to have been made at the time when it was revived. Thus in
Pearson [1963] a testator made a will in 1948 containing a revocation clause of all
previous wills. In 1956 he made another will with a similar revocation clause. In 1957 he
made a codicil to the 1948 will ending with the words “In all other respects I confirm my
said will”. It was held that the codicil revived the 1948 will including the revocation
clause that effectively revoked the 1956 will because the 1948 will was revived and took
effect from 1957 i.e. the date of the revival.
Thus, although Patrick’s “first will” was produced and first signed six years ago, its
revival three months ago means that a probate court will regard the will as being made
three months ago and not six years ago.
This being the case, the revocation clause of Patrick’s “first will” made six years ago, that
was itself revoked three years ago but then revived three months ago will be deemed by
the probate court to have revoked Patrick’s “second will” made three years ago.
This being the case, the probate court will admit to probate Patrick’s “first will” made six
years ago and refuse to admit to probate Patrick’s “second will” made three years ago.
This being the case, Martha’s claim that Patrick’s “second will” must have been either
forced on her father or that he was tricked somehow is no longer material, which it would
have been if any part of this will would otherwise be valid. This is because a will must be
made with the full intention of the deceased to make a will and dispose of his property
without any undue influence from others. Thus, the court will recognize Martha as the
executrix and the bulk of Patrick’s property will go to Martha, “her sisters and brothers”.
Time allowed for the question 36 minutes (i.e. one fifth of 3 hours)
Answer is 1,052 words long, which is 29.22 words a minute. Too many?