O'Neal et Al v O'Neal et Al

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Gordon. J.A.,Lewis, C.J.
• Judgment Date: 02 May 1968
• Neutral Citation: AG 1968 CA 3
• Docket Number: Consolidated Civil Appeals Nos. 2 & 3.
• Date: 02 May 1968

Court of Appeal

Gordon, C.J., Lewis, C.J.

Consolidated Civil Appeals Nos. 2 & 3.

O'Neal et al.

and

O'Neal et al.

Appearances:

E.H. Hamel Wells, Q.C. (Trinidad) with Z. Butler for the appellants.

F. Cunningham Adams for respondents Ralph & Liston O'neal

H. Harney for other respondents.

Will - Last will — Whether will should be admitted to probate when found.

Facts: Evidence revealed that a certified copy of the testator's will was found in the Registrar's Office some 40 years after testator's death.

Held: In these cases the court must be provided with positive evidence that the circumstances under which the will was found were beyond suspicion. The evidence did not discharge the burden of proof. Appeal dismissed.

Gordon. J.A.

1 Two summonses brought in the Supreme Court of the Windward and Leeward Islands - Virgin Islands Circuit, the one dated 16th March, 1964 and the other dated the 7th January, 1966, in which the plaintiff/appellants prayed the court to decree probate of a certified copy of a will purported to be executed by the late Alexander Agrippa 0'Neale on the 15th February, 1917, were heard as one by Heyliger, J. on the 25th April, 1966.

2 This appeal is against the refusal of the trial judge to admit the certified copy of that will to probate.

3 After the execution of the will in question by the testator Alexander Agrippa 0'Neale who died in February or March 1917, it was deposited at the Registry, Virgin Islands. It was not until 1958 that a solicitor, one Mr. Besson, who had been for a short time the registrar of the court in the Virgin Islands, and who was then in private practice, discovered the will in the registry. On his instructions three copies of the will were made and certified by the then registrar of the court. Mr. O. Browne. The original will having mysteriously disappeared from the registry, the four appellants - the first as the attorney of Lysina 0'Neale the surviving executrix under the will, and the others the grand children of the deceased, have sought to have a certified copy of the will admitted to probate.

4 The respondents, are some of the grand children of the testator, and as such are likely to share in the estate in the event of an intestacy. Their interest, consequently, would be adversely affected should the certified copy of the will in question be admitted to probate.

5 Before this court the main ground argued was, that since it was the duty of the court to give effect to the intention of a testator, the court in the circumstances should admit to probate the certified copy of the will which was in existence and which was lost. It has been urged on the court that there is every indication from the evidence which was heard and given, that a will did in fact exist and that the circumstances under which a certified copy of it was made were such as should influence the court into granting the application.

6 In the first place the court is mindful that it should give effect wherever possible to the intentions of a testator. It is also mindful of the fact that it should be proved in the court when and where that will was found and in what circumstances. The evidence before the court disclosed that the will had been found in the registry by one Mr....