LEGAL TANGLE

Timaru Herald, Volume CLVIII, Issue 23375, 5 December 1945, Page 6

LEGAL TANGLE

Wrong Signatures On Wills Motion For Probate (N.Z.P.A.) CHRISTCHURCH. Dec. 4. After hearing an extraordinary story in the Supreme Court today of two sisters, Maud Lucy and Jane Remington, both now dead, who had inadvertently signed each other's wills, Mr Justice Northcroft refused to deal with the case as a motion by Mr R. J. Loughnan for the Guardian Trust and Executors Co., Ltd., executor of both wills, for probate of the will of the second sister, Jane Remington. Her estate was valued at £2500. Mr Loughnan said it was an extraordinary story of two women who had lived together all their lives deciding in 1930 to make similar wills. They asked the Christchurch manager of the Guardian Trust and Executors Company to draw up their wills. That was an increasingly common practice “but not a desirable one,” remarked his Honour. “Professional work should be done by professional men.” The then manager of the company took Lie sisters’ instructions, said Mr Loughnan, but the company’s solicitor drew up the wills. The latter did not, Mr Loughnan agreed, supervise the vitally important part of the signing of the wills. When the wills had been drawn up, continued Mr Loughnan, the two sisters called with their brother-in-law at the company’s office to sign them, two clerks being called in by the manager to attest the documents. By an unfortunate accident each unwittingly signed the other's will. Stranger still, this was not discovered until the second, Jane Remington, died on September 9 of last year, because a second mistake had occurred on the death of Maud Lucy Remington in 1940, in which the Post Office Savings Bank was also involved. As the estate amounted to only some £25 in the bank no probate was necessary. “Maud Lucyl will was sent by the Post Office to Wellington for scrutiny.” said Mr Loughnan, “and was initialled, confirmed, approved and generally blessed by everyone through whose hands it passed, no one noticing that it was signed by Jane. The bank paid the estate to the company, which thus received Maud Lucy’s estate by virtue of a will signed by the other sister.” Later under a new rule, the surviving sister’s will was sent to the company's head office in Auckland. “It is extraordinary that the mistake was not discovered then,” remarked his Honour. “The wills should surely have been checked on receipt.” It was not until Jane Remington died in September, 1944, that the mistake was discovered, said Mr Loughnan, and since the estate was of considerable value, amounting to about £2500, the company was much concerned. Another unfortunate accident was that Maud Lucy's will, signed by Jane Remington, which had been returned to the Christchurch manager of the company by the Post Office could not be found.

“That would not have happened had the business been done, as it should have been, by a solicitor," remarked his Honour. “He would have filed it away. I cannot Imagine such a thing occurring in any properly run solicitor’s office. All sorts of important matters in regard to wills crop up long after the makers of them are dead, and I cannot imagine any responsible persons treating so important a document in such a perfunctory manner." Regarding the form in which the case was brought before the court Mr Loughnan said that there was nothing sinister in any part of it. “The whole case glows with good faith," he declared. “And with blundering.” commented his Honour, “or perhaps it would be kinder to say mishans.”

It was the practice of the courts, said his Honour, for matters of probate to be determined by action, and he had warned applicant’s solicitor that this was his opinion. There were good reasons for such matters to be dealt with by action. Probate in common form was not final and conclusive. If it were granted there was nothing to prevent one of the next-of-kin from starting an action to upset it. resulting in a redundancy of action such as the court would always prevent if it could. He was concerned for the position of the residuary legatee if the parties were dissatisfied with the court’s decision. He doubted whether an appeal to the Court of Appeal would be open to her if probate were granted in this form, and she would have to start an action.

Reserving his decision on costs, his Honour ordered the will to be propounded by action in solemn form.