Robert William Stafford Bird, deceased. [1969] HCD 297

 

Re Robert William  Stafford Bird, deceased. [1969] HCD 297

Prob. & Ad. Cause 12-A-69; 13/10/69;

Platt J.

 

Probate – Verification by witness of petition for probate dispensed with under s. 57 of Probate and Administration Ordinance Cap. 445.

Wills Construction – Reference to "my wife" sufficient to indicate wife subsequently divorced and remarried

 

An application was made for grant of probate to Margaret Fox formerly Margaret Bird, of the will of Robert William Stafford Bird. The will was dated 26^th June 1951 and was properly signed and attested under clause 3 of the will, the testator provided as follows: - "If my wide Margaret Bird shall be living at the expiration of seven clear days (excluding the day of my death after my death I gibe her absolutely all my property of whatsoever kind and whosesoever situated and appoint her my sole executrix" [sic]. Clause 4 continued: - "If my said wife shall not be living at the expiration of the period aforesaid then the following provisions shall take effect". In the next paragraph, the testator appointed his sister and the brother of Margaret Bird to be executors and trustees of his will and guardian of his infant children and each executor, who should act, was given a legacy. The testator then bequeathed all his real and personal property, to the trustees upon trust for sale, to divide his residuary estate amongst his children living at the time of his death and his grand-children on certain terms. In September 1962, the testator and Margaret Bird were divorced. Margaret Bird later remarried.

 

Held:

 

(1) "The application involves two questions. The first is whether Margaret Fox having divorced the testator, is still entitled under the will to all the testator's property and to be appointed his sole executrix. Secondly, there is an application for dispensation with the verification of the petition for probate by one attesting witness of the will of the deceased Therefore, so long as Margaret Bird was living after the period specified in Clause 3, she was entitled to all the testator's property and to be appointed his sole executrix.

(2) "The question then is whether the reference to "my wife Margaret Bird" is a sufficient and suitable reference to Margaret Fox so as to entitle her to the property of the testator and to be appointed executrix. The will did not envisage the situation which might arise if the testator should divorce his wife Margaret Bird. The only condition to her receiving all the property and being appointed executrix was that she should be living at the time of the testator's death. Bur it might be thought that she must be his wife and that as she was not his wife at the time of his death, she must be excluded from the will as the testator's wife at the time that the will was made, and the testator having possession of the will and having made one alteration due to the death of his mother, must be taken to have intended that Margaret Bird was still to be entitled under Clause 3 of the will. No East African authority could be discovered, but he referred the court to Jarmans on Wills 8^th Ed. Vol. 2, p. 1239, from which it would appear that a divorce does not ipso facto revoke the will. He also referred to Halsbury Vol. 34, where in dealing with the voluntary revocation of wills, the learned author sets out the only events in which such revocation would be effected (See paragraph 107 of 2^nd Ed. Or Vol. 39, 3^rd Ed. Para 1354) Nothing is stated as to divorce.

The most useful authority quoted would appear to be In re Boddington, Boddington v. Clariat (1883) 22 Ch. D. p. 597, in which the testator by his will gave the proceeds of the sale of his residuary estate to trustees on trust to pay his wife Emily Caroline within one month after his decease, a legacy of  ₤300, commencing from the date of his deceased, "or otherwise in lieu and in substitution of the said annuity, at the option of my said wife, if she shall prefer it, a legacy of  ₤2000." After the date of the will, the marriage was declared null on the ground of the impotency of the testator. The latter died without altering his will. It was held that the former wife was entitled to the legacy of ₤200, but that she could not claim the annuity, inasmuch as she never had been in law the wife of the testator and never could be or continue his widow. The annuity was therefore given for a period which could never come into existence. Fry, J….. explanted that there was no doubt about the identity of the person named in the will, since the misdescription could not be of importance, and that although she was described in the will as the testator's wife, which she was not at the time of his death and in law never had been, nevertheless, she was prima facie entitled to the legacy of ₤200. The learned Judge went on to consider the authorities, but held that here being no false assumption by the lady of the character of a wife, she was entitled to that legacy. At he same time, he refused to grant her the annuity because she could not properly be described as having been his widow. As far as the legacy of ₤200 is concerned, there is no material difference between the facts in Boddingtons's case and the instant case. It is true that Margaret Bird has remarried, but I cannot see that that can make any difference. Accordingly I am satisfied that Margaret Fox is the identical person to Margaret Bird, who was described by the testator as his wife, as indeed she ten was. As the testator did not alter his will, and as the divorce did not operate as a voluntary revocation, Margaret Fox is entitled. Under Clause 3, to the testator's property and to be appointed his sole executrix. By way of strengthen the position; learned Counsel adduced the consents of the two children of the marriage to Margaret Fox being granted probate. I am also told that the two other executors have both deceased.

(3) As to the second question, there is provision in section 57 of the Probate and Administration Ordinance Cap. 445 giving the court power to dispense "with verification by a witness where it is satisfied that it cannot be obtained, in that it cannot be obtained without undue delay or expense"…… Accordingly I grant the application for the dispensation with the verification as generally required by section 57 of the Ordinance."

 (4) "In the result, probate is granted to Margaret Fox of the will of the testator Robert William Stafford Bird."

 

HIGH COURT DIGEST [1972]