Lamothe v Lamothe
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 2006 |
| Neutral Citation | [2006] EWHC 1387 (Ch) |
| Docket Number | Case No: HC 04C 03673 |
| Court | Chancery Division |
| Date | 15 June 2006 |
[2006] EWHC 1387 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Roger Wyand QC Sitting as a Deputy High Court Judge
Case No: HC 04C 03673
MR. SIMON EDWARDS (instructed by Hutchins & Co appeared for the Claimant).
MR. RICHARD DEW (instructed by Bolt Burdon appeared for the fourth to seventh and ninth Defendants).
Hearing dates: 15 th and 16 th May 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This claim concerns the administration of the estate of the late Catherine Agnes Lamothe. She died on 13 th December 1996. The Claimant is her daughter, the First Defendant, Ronald Lamothe, is her son. The Second and Third Defendants, Albert Augustine and Maria Wallace, are friends of the family. The Fourth Defendant, Ruby Mangal, is the former partner of Ronald Lamothe. The Fifth, Sixth and Seventh Defendants, Louisa, Jordan and Jessica Lamothe, are the children of Ronald Lamothe and Ruby Mangal. Jordan and Jessica are under 18, Louisa is over 18. The Eighth and Ninth Defendants, Jermaine and Asher Lamothe, are the children of Beverly Lamothe, Jermaine is over 18, Asher is under 18.
The late Mrs Lamothe was born in Dominica and came to England in the early 1960's. She lived in England until her death, latterly at 89 Dunlace Road, Clapton, London E5, which she owned.
On 8 th January 1993, the deceased made a will in England (the "1993 Will"). On 18 th February 1998, the executors named in that will, Albert Augustine and Ronald Lamothe, proved that will. A small gift was made to one Justin Carbon (£500); the 89 Dunlace Rd property was left as to 25% to the Claimant, 25% to the First Defendant and 50% divided equally between the grandchildren and the Fourth Defendant. The residue was divided equally between the Claimant and the First Defendant.
On 30 th May 1995, however, the deceased made a will in Dominica, (the "1995 Will"), and the executors named in that will were Ronald Lamothe and Maria Wallace. They proved that will in Dominica on 28 th July 1998. That will contained a clause revoking all former wills, gave certain Dominican land to the First Defendant, divided certain other Dominican land equally between the Claimant and the First Defendant, devised a bank account equally between the Claimant, the First Defendant and the Fifth Defendant and divided the residue ("all my real and personal property whatsoever and wheresoever situated not hereby … specifically disposed of") equally between the Claimant and the First Defendant. The 1995 Will does not specifically refer to the 89 Dunlace Road property and it would therefore fall to be treated as part of the residue.
In 2001, the Claimant, having received no distribution in relation to her mother's estate, started to make enquiries and discovered that Mr Lamothe and Mr Augustine had obtained probate of the 1993 Will. The Claimant was not at that time aware of the 1995 Will. She, therefore, commenced proceedings in the Chancery Division for an account of the administration of the 1993 Will and the removal of the then executors, action no. HC02C01071. On 26 th July 2002, pursuant to the order of Master Bragge, the Claimant was appointed the executrix in place of her brother, the First Defendant, with Mr Augustine, the Second Defendant, remaining as an executor as well.
The administration of the estate of the deceased in England thereafter proceeded on the basis of the validity of the 1993 Will, the Claimant being unaware of the existence of the 1995 Will. In the proceedings, the Claimant obtained orders against Mr Lamothe for the giving of an account of his administration and, eventually, by letter dated 17 th December 2003, Mr Lamothe gave a form of account and disclosed the existence of the 1995 Will and thereafter sent a copy thereof to the Claimant's solicitors by letter dated 26 th January 2004.
After taking time to consider the effect of the 1995 Will, the Claimant issued these proceedings to revoke the grant in relation to the English will and to obtain a grant for herself in relation to the Dominican will. Proceedings were served on the Defendants living in this country by post on 25 th November 2004 and until July 2005, there had been no indication that any of the Defendants proposed to resist the claim.
Directions had first been given on 21 st February 2005 then further directions were given on 8 th April 2005 and, finally, on 4 th July 2005, directions were given that the trial of the claim should take place before a Master on 4 th October 2005 on the basis of the written evidence.
On 29 th July 2005, the Fourth Defendant, Ruby Mangal, applied for permission to defend the claim and for the hearing of 4 th October 2005 to be vacated. The Fourth Defendant's application was granted, she was appointed to represent the interests of the Fifth, Sixth, Seventh and Ninth Defendants and directions were given for the service of a Defence and Part 20 Counterclaim, the service of evidence of fact "regarding whether the deceased intended the 1995 will to revoke the 1993 will" and it was directed that the matter be listed for trial before a judge.
The Fourth Defendant, on behalf of herself and the Fifth, Sixth, Seventh and Ninth Defendants:
(i) Opposes the application for revocation of probate of the 1993 Will;
(ii) Seeks a grant of probate of the 1995 Will to be admitted together with the 1993 Will and with the omission of the revocation clause in the 1995 Will;
(iii) Seeks declarations to the effect that the specific gifts in the 1993 will stand together with the gifts contained in the 1995 Will.
The Fourth Defendant's case is that Mrs Lamothe did not intend to revoke the 1993 Will when she made the 1995 Will. The 1995 Will, it is said, was only intended to deal with Mrs Lamothe's property in Dominica and was not intended to interfere with the dispositions of the property in England, and specifically the house at 89 Dunlace Road, which were set out in the 1993 Will.
Mr Dew, counsel for the Fourth Defendant, submitted that I was entitled to look at all the relevant evidence to determine Mrs Lamothe's intention at the time that she executed the 1995 Will. This was contested by Mr Edwards, Counsel for the Claimant, who submitted that I was constrained merely to look at the two wills and to construe them. On this basis it would be clear that the 1995 Will revoked the 1993 Will because that is what it states in terms and there would be no further argument. The hearing proceeded on the basis that I should hear all the evidence without prejudice as to whether it was admissible. It is therefore necessary for me first to determine whether any, and if so what evidence is admissible.
Both parties cited a number of authorities. I was also referred to Sections 20 and 21 of the Administration of Justice Act 1982 which applies to the wills of testators who die on or after the 1 st of January 1983. The relevant parts of those sections are as follows
Rectification
(1) If a court is satisfied that a will is so expressed that it fails to carry out the testators intensions, in consequence-
(a) of a clerical error; or
(b) of a failure to understand his instructions,
it may order that the will shall be rectified so as to carry out his intentions.
21 Interpretations of wills – general rules as to evidence
(1) This section applies to a will-
(a) in so far as any part of it is meaningless;
(b) in so far as the language used in any part of it is ambiguous on the face of it;
(c) in so far as evidence, other than evidence as of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.
(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation.
There is no application for rectification in this case. Section 20 deals specifically with claims for rectification and so it would seem to be irrelevant. However, the Claimant argues that rectification would have been the appropriate remedy for the Fourth Defendant to pursue. Not having adopted that course of action, the Claimant submits, it is not open to the Fourth Defendant to seek to obtain the same result by other means.
I do not accept that argument. Section 20 was enacted in order to enable the Court to insert words into a will if the conditions of the section were satisfied. Previously, the Court had the power to omit words from a will when admitting it to probate, where it considered that to be necessary to achieve the intention of the testator. It was not within the Court's power to add words, however clear the testator's intention. I see nothing in Section 20 that removes the Court's pre-existing power and I was not taken to any authority suggesting that to be the effect of the section.
Section 21 is concerned with the interpretation of wills. As I understand it, the Court, in a case such as this, has two functions. The first is as a Court of probate, to determine what will, or even what clauses of a will, are to be admitted to probate. Once that has been determined the Court is then concerned with the interpretation of the will or wills that have been admitted to probate. Section 21 does not assist me in deciding whether any evidence outside the will is admissible in reaching a determination as to whether a will is to be admitted to probate. For this I need to turn to the...
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Table of Cases
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