TESTAMENTARY INTENTION
38 Mr. Rayment QC for the appellant submitted that the primary judge did not adequately address the distinction between, on the hand, ascertaining the intention of the deceased, for the purposes of determining whether a document should be admitted to probate, and on the other hand, construing the document to determine what if any testamentary disposition it actually effected. On the first matter, he submitted, if the deceased had the subjective intention that the document be a will, that is, operate on his death to affect his property or rights, it was sufficient to justify admission of the document to probate that it be capable of having such an operation. Whether or not the document actually does have that operation is a matter of construction; and a document admitted to probate because it is capable of having such operation may subsequently be construed as in fact not having any such operation. The first question, relating to the requirement for admission to probate, concerns the deceased's subjective intention, and evidence extrinsic to the document is generally admissible: the second question, the question of construction, concerns intention as manifested by the document, with very limited scope for extrinsic evidence. Mr. Rayment referred us to In Re Resch's Will Trusts [1969] 1 AC 514, at 547; and In Re Hawksley's Settlement [1934] Ch. 384 at 395-6.
39 Mr. Rayment submitted that the document in this case was capable of having testamentary operation. The words "when my estate passes to Ed and his heirs" were capable of manifesting an intention that the document have the effect that the deceased's estate should pass to Ed and his heirs upon the death of the deceased. Further, the words "I exempt Ed and his family for the return of all loan moneys and interest" could, particularly in association with the former words, be construed as manifesting an intention that this foregiveness occur upon the death of the deceased.
40 Mr. Rayment submitted that the extrinsic evidence that the document was intended to be a will was strong. He referred to the circumstance that it was signed and executed in the manner appropriate for a will. He referred to the appellant's evidence of the conversations leading up to the preparation of the document, and particularly to the evidence given by the witnesses.
41 Mr. Rayment submitted that the primary judge was wrong in the way he stated the test, suggesting that the document must in fact have the effect of dealing with the deceased's property and/or rights on his death, rather than merely being capable of having that effect. He submitted that the primary judge was in error in holding that the evidence of the witnesses could be understood as indicating merely that the deceased wished to leave the management of his property in the hands of the appellant. In any event, he submitted that this Court was in as good a position as the primary judge to reach a conclusion on intention; and that the correct conclusion that should be reached by this Court was that the deceased did intend this document to be his will.
42 In my opinion, Mr. Rayment was correct in the distinction which he drew between the approach to be taken in deciding whether to admit a document to probate, and that to be taken when the actual effect of the document has to be determined (although I would say that in appropriate cases both questions can be addressed in one hearing). In my opinion, the cases to which he referred do show that, in order for a document to be admitted to probate, it is sufficient that the document be capable of having a testamentary effect, so long as the intention of the deceased that the document be his will is established. In this case, it seems to me that the document was (just) capable of being construed as having testamentary effect. If the document had commenced by stating that it was the last will of the deceased, or had otherwise plainly on its face indicated an intention that it operate on his death, but otherwise was in the same terms as this document, I think that would have been sufficient to justify admission of this document to probate. Indeed, if the evidence of the witnesses had been to the effect that the deceased said to them at the time the document was executed that he intended this document to be his will, and/or he intended this document to set out what was to happen to his property on his death, that may also have been sufficient to justify admission of the document to probate. That may have been a sufficiently clear indication of a subjective intention that the document operate as a will, and as I have said, I think the document is (just) capable of being construed so as to have testamentary effect.
43 However, that being said, in my opinion the terms of the document are such as strongly to suggest that it is a document operating during the lifetime of the deceased, and not, in any of its parts, having any effect on the deceased's property or rights on his death. The words "when my estate passes" are apt to identify a time at which the deceased wished to have his assets sheltered from taxation, and do not suggest any intention, by those words, to actually cause the estate to pass to the appellant. If those words are interpreted in that way, there is then no basis for interpreting the words relating to exemption from return of loans moneys as operating on death. In my opinion also, the extrinsic evidence of testamentary intention is not strong. The primary judge did not have confidence in the appellant's evidence; and although Mr. Rayment submitted that this view was reached on slender grounds, in my opinion his submissions fall far short of showing any basis for departing from this view of the primary judge. The evidence of one of the witnesses to the document is certainly capable of having the interpretation which the primary judge gave to it, namely that the deceased's statements merely indicated an intention to leave the management of his affairs to the appellant. The evidence of the other witness, which associated the words "I want to leave everything to him" with the words "I don't want to leave anything to Jeanette" is not, in my opinion, capable of the interpretation given by the primary judge; but those words of the deceased did not necessarily refer to what he intended to achieve by the document, and they are explicable on another basis.
44 The evidence given by Louise of her conversation with the deceased in about November 1997 suggests that the deceased believed that the death of John meant that his existing will and codicil had the effect that his estate would pass to the appellant. There is certainly nothing in the evidence to suggest that the deceased was aware of the effect of s.29 of the Wills Probate & Administration Act. If, as seems probable, the deceased believed that the effect of his present testamentary arrangements was that his estate would pass to the appellant, then this would explain both the form of words used in the document ("when my estate passes"), and also the words spoken to the witness, to which I have just referred.
45 In those circumstances, I do not think the extrinsic evidence is sufficient to show testamentary intention, where the wording of the document itself points strongly against it. Accordingly, I would not disturb the primary judge's finding on the first point.