Case No: TLC 733/07
Neutral Citation Number: [2008] EWHC 2022 (Ch) 
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand 
London WC2A 2LL

Date: Wednesday, 6 February 2008
BEFORE:

MR JUSTICE PATTEN

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BETWEEN:

HOARE TRUSTEES
		Claimant	
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JAQUES & OTHERS
	Defendant	

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Ms Ruth Holtham appeared on behalf of the Claimant

Ms Georgia Bedworth appeared on behalf of the Defendant

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JUDGMENT

MR JUSTICE PATTEN:  

1.	In this action the claimants seek a pronouncement from the court in solemn form in favour of a will executed by the late Kathleen Jaques on 12 August 1999 together with two codicils to that will, the first dated 14 January 2000 and the second dated 25 November 2004.  

2.	The reason for these proceedings is that between the execution of the two codicils the testatrix made a second will, the effect of which was of course to revoke the first will and the first codicil.  That second will was made on 16 August 2000.  The second codicil, which is dated 25 November 2004, and which I will come to in more detail in a moment, refers in terms not to the second will but to the first will (although with an error as to the precise date of that will) and in terms sets out an amended gift in relation to clause 3.1 of the first will.  The claimant contends that the effect of that second codicil was to revive the first will and the first codicil and as part of that to revoke the second will.

3.	I should say at the outset that there is no opposition to the claim.  The first defendant has filed a Defence and counterclaim indicating that she does not oppose the claimants' principal claim, by which, as I have indicated, they seek probate in solemn form in respect of the first will and the two codicils.  Her opposition is limited to an alternative claim to probate in respect of the second will, which of course does not arise if the primary claim succeeds.  So far as the remaining defendants are concerned, the second and third defendants have indicated that they have no intention of defending the claim and the fourth to seventh defendants have acknowledged service, again indicating an intention not to defend the claim.  

4.	There was apparently at some earlier stage in these proceedings an indication of a challenge to the second codicil on the grounds of want of testamentary capacity, but that issue has been resolved by the evidence of Dr Paul Wiseman, who was one of the witnesses to the second codicil and had been the testatrix's general practitioner since April 1999.  He has provided a witness statement setting out his recollection of the circumstances surrounding the execution of the second codicil, in respect of which he was asked to be a witness precisely for the purpose of testing Mrs Jaques' testamentary capacity prior to the execution of that codicil in order to avoid any subsequent disputes about that issue.  

5.	In his witness statement of 7 July 2006 he describes attending Mrs Jaques on 25 November 2004, having previously received a request to do so from Messrs Chard and Chard, the solicitors acting on her behalf in relation to the preparation and execution of the second codicil.  He says in that witness statement that he was able to see Mrs Jaques alone prior to the execution of the codicil and to assess her mental capacity.  His professional opinion, which is not challenged in these proceedings, is that she had the requisite capacity and was well aware of what she was proposing to do by way of the disposition of her estate.  His witness statement also resolves any issue about due execution.  It is clear from the evidence in that statement that he and the other witness to the codicil, a Mrs Angelita Salenga, were present when the testatrix signed the codicil and then proceeded to witness her signature in her presence.

6.	It is necessary in order for me to explain the circumstances relevant to the issue of revival to say something in summary about the contents of the two wills and the two codicils.  The testatrix died on 16 April 2005.  As at the date of her death the gross value of her estate was some £659,000.  Under the original will her daughter, the first defendant, was given a pecuniary legacy, free of inheritance tax, in the sum of £100,000.  There was a further legacy in favour the second defendant, the Foundation of Nursing Studies, in the sum, again free of inheritance tax, of £25,000.  The residuary estate was divided equally between the fourth to the seventh defendants inclusive.

7.	Under the first codicil of 14 January 2000 the testatrix varied her will so as to provide a further pecuniary legacy in favour of the third defendant, the King Edward VII's Hospital for Officers, of £10,000, free of tax.  The second will, executed on 16 August 2000, contained essentially the same provisions as the original will as varied by the first codicil, but with the exception that there was no pecuniary gift or other interest given to the first defendant.  It is common ground, as I indicated earlier, that that will by its express terms revoked the earlier will and codicil.

8.	That brings me to the second codicil executed on 25 November 2004.  So far as material, it provides as follows:  

"I KATHLEEN JAQUES of flat 9 147 Gloucester Terrace … DECLARE this to be a Second Codicil to my Will dated 11th August 1999 ("the Will").  

"1.  In clause 3.1 of my Will the sum of Two Hundred and Fifty Thousand Pounds (£250,000) shall be substituted for the figure of One Hundred Thousand Pounds (£100,000).  

" 2.  In all other respects I confirm the Will." 

9.	The evidence was that the codicil was prepared by Messrs Chard and Chard in these terms, based on instructions which Mrs Jaques gave them at a meeting with the solicitors which she attended, bringing with her a copy of her original will and the first codicil.  It is clear from the solicitor's attendance note of that meeting, which is in evidence before me, that there was no mention by Mrs Jaques of the second will and the solicitors on her instructions drafted the second codicil in the terms I have just read out, expressly by reference to the earlier will intending, as she had instructed them, to vary the gift in favour of her daughter.  Although I think not strictly necessary for the purposes of my decision, the attendance note of the solicitor's discussion with Mrs Jaques about the terms of the second codicil contains a reference to Mrs Jaques having said that she thought she had been rather mean towards her daughter and was willing for those reasons to increase her daughter's share of the estate from £100,000 to £250,000.  That conversation took place by reference to and in the context of the first will.

10.	The argument that the first will and codicil have been revived by the second codicil is based on the provisions of section 22 of the Wills Act 1837.  So far as material, that provides that:  

"No will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re‑execution thereof or by a codicil executed in manner herein‑before required and showing an intention to revive the same."

11.	What is required to be shown by those provisions of section 22 was described in the reported decision In the Goods of Steel LR 1 Probate 575 in these terms:  

"In order to satisfy those words [that is to say the words of section 22] the intention must appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator's property inconsistent with any other intention, or by some other expression conveying to the mind of the Court with reasonable certainty the existence of the intention."

12.	In this case of course there is no express direction indicating that the original will should be revived and the second will revoked.  The reasons I have already indicated for that are that the solicitor who drew the second codicil was unaware of the existence of the second will and therefore the potential problem about revocation and revival.  But what is said is that the express reference to the second codicil being a codicil to the 1999 will coupled with the terms of the codicil varying clause 3.1 of that early will constitute a clear expression of the testatrix's intention that the first will should be revived and the second will revoked.

13.	Facts very similar to this case occurred in the reported case of In the Goods of Chilcott [1897] Probate Reports 223.  There, as here, the testatrix executed a codicil, prepared by her solicitor in ignorance of the existence of a second will.  The codicil purported to be a second codicil to the earlier will and confirmed in terms "my said will and the first codicil thereto".  On the basis of the terms of the second codicil the court held that the original will had been revived.  Gorell Barnes J quoted from the earlier judgment of Sir James Hammond in the case of In the Goods of Stedham 6 Probate Division 205, who in relation to a similar set of circumstances said this:  

"'The solicitor who was instructed to prepare this codicil, instead of making a codicil to the will of 1878, made a codicil to the will of May 21, 1877, and I was asked to treat it as a mere mistake as to the date, and to allow probate of the codicil together with the last will of February, 1878.  I am unable to do so, for this reason: that it was not a mere mistake as to the date of the will to which it was intended to append the codicil, but the mind of the solicitor, which must be treated as that of the testator, was actually applied to the provisions of the will of 1877.'"

For the same reason Gorell Barnes J also held that the reference in the codicil to the original will had the effect of reviving it.

14.	It seems to me that those principles have an obvious application to this case.  The evidence, as I have indicated, is that the solicitors Chard and Chard who drew this second codicil did so by reference to the first will, that being the only will that they were aware existed.  Their clear instructions were to vary the terms of the first will by increasing the pecuniary legacy in favour of the first defendant and it is implicit in that, if not express, that the testatrix intended that the terms and provisions of the first will, and therefore necessarily the first codicil, should be revived in preference to the terms of the second will.

15.	On the principles set out in the authorities, the intention of the solicitor, which was clearly to draft a codicil merely varying the original will, has to be attributed to the testatrix who executed that codicil and the only possible conclusion is that the original will and codicil were revived and the second will revoked.  There being no issue about testamentary capacity or due execution, I propose for these reasons to grant the relief which the claimants seek in this action.