Re The Estate of James T. Phillips

JurisdictionBahamas
CourtSupreme Court
JudgeMalone, J
Judgment Date06 Sep 1982
Docket NumberProbate Side No. 614 of 1981

Supreme Court

Malone, C.J. (Actg)

Probate Side No. 614 of 1981

Re:
and
The Estate of James T. Phillips
Appearances:

Mr. P. Dunkley with Mrs. R. Christie for the applicant

Mr. V. Saunders for the minor children of the deceased

Inheritance and succession - Wills — Probate law and practice

Will - Whether revoked by testator.

Malone, J
1

The “Will” in question is a reproduction in draft form of the Will of the deceased which was lost, presumed destroyed, a few days before the testator, whose life was then in danger, was killed. The circumstances need not be alluded to other than to say that the destruction of the testator's Will, was by persons who are not parties to this application and its destruction, his death and the reconstruction of his Will are fully substantiated by affidavits.

2

On application to the Registrar, it was ordered that the admission to Probate of the Will in its draft form be heard by summons before a Judge of the Supreme Court.

3

Under the Will, the entire estate, both real and personal, of the testator would pass to his widow who is named as executrix and is the mother of the testator's minor children and a son of full age. Consent to probate of the reconstructed Will by the son of full age as also a like consent by the guardian ad litem of the minor children, their grandmother, is on record.

4

Two questions arose at the hearing of the summons. One was whether the Will should be proved in common or in solemn form. The other was whether there was a Will to be proved because it was destroyed before the testator's death in circumstances from which it might be inferred that the testator would have known of its destruction. As regards the second of those questions, it is clear from the affidavit evidence that the testator had no intention of revoking his Will. As he had no such intention, the fact that the Will was destroyed before the death in the circumstances, mentioned above, cannot, to my mind, give rise to a presumption that the testator's intention was to revoke his Will and so operate as a bar to an application to obtain Probate of the Will. I think that is indicated by the following passage in Tristram and Coote's Probate Practice 25 th Ed., where at p.560 the learned author writes:

“When an original will or codicil has been lost, or destroyed without the intention of revoking it, application must be made for an order for leave to prove the will or codicil as contained in a copy, draft, reconstruction or other evidence of its contents.”

5

I turn to the first of the two questions raised at the hearing. In Halsbury's Laws of England, 3 rd Ed. Vol.16, para.314 at p.186, appears the following passage:

“Where there are minority interests or consent is not forthcoming or there is no clear evidence that the will was in existence at the time of the testator's death, or of its contents, the application may be made or referred to the court on motion, and, in the case of a will which has been lost or destroyed where there are minority interests or lack of consent, an action for proof in solemn form will be required.”

6

The...

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