Weston v Francis

• Jurisdiction: Antigua and Barbuda
• Judge: Lewis, J.A.,Lewis, C.J.
• Judgment Date: 18 June 1971
• Neutral Citation: AG 1971 CA 7
• Docket Number: Civil Appeal No. 3 of 1971
• Date: 18 June 1971
• Court: Court of Appeal (Antigua and Barbuda)

Court of Appeal

Lewis, C.J.; Lewis, J.A.; Davis, J.A.

Civil Appeal No. 3 of 1971

Weston

and

Francis

Appearances:

L. lockhart for appellant

McC. George for respondent

Will - Validity — Appeal against decision that letters of administration with will annexed be granted — Plaintiff/respondent had stated that she was the sole beneficiary under a will made by the deceased which could not be found but had not been revoked by any subsequent will — Defendant/appellant now states that the will had not been properly executed and was invalid — Evidence that person named as a witness was asked to read a “not” which was the alleged will, but did not see the testatrix or the witnesses sign it — Letters of administration with will annexed revoked — Defendant/appellant granted leave to apply for letters of administration to his sister's estate.

Lewis, J.A.

1 This is an appeal from an order of Mr. Justice Louisy dated the 7th day of November, 1970 in which he directed that letters of administration with the will annexed of the estate of Caroline Weston should issue, and that the counterclaim filed by the appellant should be dismissed.

2 The claim in this case is by the plaintiff/respondent Isabella Francis, who says that she was the sole beneficiary under a will made by Caroline Weston, (hereinafter referred to as “the deceased”), late of Greenbay, who died on the 25th day of May, 1961; that the will was made towards the end of the year 1960 and that no executor was appointed. It was pleaded in paragraph 2 of the statement of claim that this will “, was never revoked or destroyed by tie deceased or by any other person in her presence or by her direction with the intention of revoking the same., but was at the time of her death a valid and subsisting will but the same cannot now be found.” The respondent says that in this will the deceased left her a piece of land and a house at Greenbay, and she applied to the Court to have the lost will propounded.

3 I will assume for the purposes of this judgment that a will was made by the deceased which she did not revoke but which could not be found alter her death, The respondent says that after the will was made she kept it on a file which she handed to the deceased's brother, the present appellant, and she actually saw him reading the will but he refused to deliver it to her when she asked him for it. The appellant was not in Antigua when his sister died. He returned about a year after her death and it vas then, according to the respondent, that the alleged will was handed over to him by her. The appellant denies this. He says he never saw the will and in point of fact he applied for letters of administration of his sister's estate in May, 1963, and a caveat was filed and it was only later in the years some time in October, 1963, that he was first informed of the existence of the alleged will. However that may be, the important question which arises for determination on the assumption that a will existed is whether the will was duly executed.

4 Now the requirements for the making of a valid will are laid down in section 7 of the Wills Act, Cape. 87, of Antigua. The trial judge in dealing with this matter said this:

“Was there due execution? Cap. 87, section 7 of the Wills Act refers,”

5 This section reads as follows

“No will shall be valid unless it shall be in writing argued executed in manner hereinafter mentioned; (that is to say,) it shall be signed at the foot, or end, thereof by the testators or by some other person in his presence and by...