IN RE ARTHUR (DECEASED) ABAKAH AND ANOR. v. ATTAH-HAGAN AND ANOTHER [1972] 1 GLR 435
COURT OF APPEAL
Date: 16 FEBRUARY 1972
BEFORE: AZU CRABBE J.S.C., LASSEY AND ARCHER JJ.A.
CASES REFERRED TO
(1) Matthews v. Munster (1887) 20 Q.B.D. 141; 57 L.J.Q.B. 49; 57 L.T. 922; 36 W.R.178; 52 J.P. 260,
C.A. (2) Baiden v. Solomon [1963] 1 G.L.R. 488, S.C. Hickman v. Berens [1895] 2 Ch. 638; 64 L.J.Ch. 785; 73 L.T. 323; 12 R. 602, C.A.
(4) Harvey v. Croydon Union Rural Sanitary Authority (1884) 26 Ch.D. 249; 53 L.J. Ch. 707; 50 L.T.
291; 32 W.R. 389, C.A.
(5) Holt v. Jesse (1876) 3 Ch.D. 177; 46 L.J.Ch. 254; 24 W.R. 879.
(6) Neale v. Gordon Lennox [1902] A.C. 465; 71 L.J.K.B. 939; 87 L.T. 341; 66 J.P. 757; 51 W.R. 140,
H.L.
(7) Darko v. Bank of West Africa [1972] 1 G.L.R. 242, C.A.
(8) Baah II v. Ampeh II, Court of Appeal, 2 March 1970, unreported.
(9) Nimoh v. Acheampong [1959] G.L.R. 49, C.A.
NATURE OF PROCEEDING
APPEAL from a ruling of Griffiths-Randolph J. delivered in the High Court, Cape Coast, wherein he set aside a consent, order made by the late Owusu J. in an application for a grant of probate.
COUNSEL
Sarpong (with him Quansah) for the appellants.
Dr. de Graft-Johnson for the respondents.
JUDGMENT OF AZU CRABBE J. S.C.
Azu Crabbe J.S.C. delivered the judgment of himself and Lassey J.A. This is an appeal from a decision of Griffiths-Randolph J. setting aside a consent order made by the late Owusu J. in an application for a grant of probate of the will of Robert Benjamin Arthur (deceased) of Cape Coast.
The material facts may be shortly stated. By his will dated 6 January 1967, Robert Benjamin Arthur
appointed his son Robert Samuel Arthur and his brother Ekow Abakah, executors (hereinafter called the appellants) and made various bequests. He bequeathed to each appellant and to the wife of the first appellant the sum of ¢30.00. The first appellant was also to share in other personal estate including furniture and personal effects of the deceased. The appellants were also the attesting witnesses.
The proceedings in this case commenced with an application by the appellants in the High Court, Cape Coast, for an order granting probate [p.438] of [1972] 1 GLR 435 of the will of Robert Benjamin Arthur who died testate on 15 December 1969 at Cape Coast. Against this application, three persons, namely, John Kwame Attah-Hagan, Efua Akon and Efua Attah, maternal brother and sisters respectively of the deceased (hereinafter called the respondents), filed a joint caveat.
Consequently, the appellants caused warning to issue calling upon the respondents to file their affidavit of interest. They duly obeyed the warning and in a joint affidavit of interest sworn to by John Kwame Attah-Hagan on behalf of himself and his sisters it was alleged as follows:
“(1) That I and my sisters Efua Akon and Efua Attah all of Cape Coast have filed caveat in respect of the above-mentioned estate. (2) That we are the maternal brother and sisters of the deceased.
(3) That I have been authorised by the other caveatrices to swear to this affidavit for myself and on their behalf. That we are informed and verily believe same that the will does not bear the true signature of the testator. That again all the two attesting witnesses to the will are beneficiaries in respect of certain properties in the will; and incidentally one of the said witnesses is also one of the executors.
That I am advised and verily believe same that the alleged execution of the said will by the testator is fraught with doubts. That in the circumstances, we challenge the validity of the said will and do hereby subject the executors to prove the will in solemn form.”
On 25 March 1970, the appellants filed a notice of motion pursuant to Order 60, r. 20 (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), accompanied by an affidavit sworn to by one of the appellants, Ekow Abakah. The material paragraphs of this affidavit are as follows:
“(6) That I admit the averments contained in paragraphs (1) and (2) of the affidavit.
That I vehemently deny the averments contained in paragraphs (3) and (4) and state in further denial that I was present when the deceased appended his signature to the will under reference as well as Mr. Robert Samuel Arthur.
That it was in his presence that I together with Mr. Robert Samuel Arthur, the other executor herein, also appended our signature.
That as to the averments contained in paragraph (5) of the said affidavit it is a legal point and its implications can be appreciated only by lawyers.
(10) That at any rate, I was not made aware by the testator that I was a beneficiary under the said will when I attested it. (11) That in any case, the allegations contained in paragraph (3) of the caveators’ affidavit do not make the will invalid except the effect of it and its operation. [p.439] of [1972] 1 GLR 435 (12) That I deny the averments contained in paragraph (6) of the said affidavit.
(13) That I am told and I verily believe same that the reasons contained in the caveators’ affidavit are not sufficient to upset the validity of the will.” The appellants who had all along been acting for themselves then instructed Messrs. Forson, Sarpong & Co. (solicitors) of Cape Coast to conduct the case on their behalf. On 6 April 1970 when the matter came before Owusu J. in the High Court, Cape Coast, the learned judge recorded the following notes: “Sarpong for applicants. Abban for caveator and caveatrices. By court; Both counsel agree with the court that the interests of the attesting witnesses who also are beneficiaries under the will should be expunged from the will and that the executors shall accordingly administer the remainder of the estate. The application for probate by Ekow Abakah and Robert Samuel Arthur shall accordingly be granted subject to the order above.”
On 18th April 1970 one of the respondents, John Kwame Attah-Hagan, filed a notice of motion in the
High Court, Cape Coast, praying for an order to set aside the order of Owusu J. In his affidavit in support of the application John Kwame Attah-Hagan alleged that when the caveats came to be heard on 6 April 1970, certain vital points raised in their affidavits were not considered at all by the court and that the ruling of Owusu J. did not reflect the true position. On 24 April 1970 John Kwame Attah-Hagan gave notice that they had changed their solicitor and had appointed Dr. E.V.C. de Graft-Johnson to act for them. Griffiths-Randolph J. granted the application and set aside the order of Owusu J. and his reasons for doing so are expressed in the following passage of his ruling:
“In the instant case the consent order of 6 April 1970 was made under Order 60, r. 21 (1) which required the parties to have ‘come to an agreement among themselves’ before the grant of probate was made and one would expect some indication in the record of proceedings that that had been the case; but on the contrary, it is silent even as to whether the parties were in court that day and merely states that ‘counsel for the parties’ were present. Further it does not say that the parties said anything; but that ‘both counsel agree with the court which gives the impression that the suggestion of the joint grant of probate came from the judge, and that the lawyers did not obtain the wishes of their clients before accepting it.
Moreover where objections have been raised to the grant of probate, the law requires that such objections be determined or withdrawn before the grant is made, hence the need to remove the caveat from the file before the making of the grant. [p.440] of [1972] 1 GLR 435 It follows that the said order purporting to be a consent order was in fact not made according to Order 60, r.
21 and so demonstrably wrong that teamed counsel was justified in saying that it was made per incuriam.
(Vide Nye v. Nye, Court of Appeal, 27 February 1967, unreported, digested in (1967) C.C. 75).”
Against the ruling of Griffiths-Randolph J. the appellants have appealed to this court. The main ground argued by Mr. Sarpong, counsel for the appellants, is that the learned judge of the court below misdirected himself in holding that the consent order was made per incuriam. He submitted that when counsel comes to court and announces himself as representing his client, any consent he gives is the consent of his client and he cannot later withdraw his consent unless he can show that it was made with intent to defraud.
For the respondents Dr. de Graft-Johnson repeated the submissions which he had made in the court
below. The main points in these submissions were:
Since the executors were not only beneficiaries but also attesting witnesses, they were not free from
suspicion; and especially as his clients had doubted the genuineness of the signature appearing in the will as that of the testator, it was necessary for the will to have been proved in solemn form;
His clients’ former counsel had consented to the order without first consulting the people he represented; and their immediate reaction had been to apply to set aside the order even before engaging his services; If the consent of counsel had been considered sufficient, the rules would have said so; but Order 60, r.
21(1) and (2) clearly require the consent of the parties and not only of their solicitors; and for that reason and having regard to the particular position of the executors and the fact that the will which was suspect had not been proved in solemn form, the order recording the consent of counsel was made per incuriam; The caveat is still before the court because it has not been removed by the order, since Order 60, r. 21 says, ‘the Court may order that the caveat be removed from the file and a grant may then be made’.” The procedure on the hearing of a motion for grant of probate after warning has been obeyed is laid down in Order 60, r. 21. Sub-rule (1) of rule 21, which is relevant, in this matter, provides as follows: “Upon the motion coming on for hearing before the Court, if the parties can come to an agreement among themselves as to the person or persons to whom a grant of probate or letters of administration, as the case may be, should be made, the Court may order that the caveat be removed from the file and a grant may then be made.” [p.441] of [1972] 1 GLR 435 An important question in this appeal is whether the phrase “if the parties can come to an agreement among themselves” in sub-rule (1) of rule 21 means that before making an order under this sub-rule the
court must be satisfied that the actual parties to the dispute have in fact agreed among themselves as to the person or persons to whom the grant of probate should be made, despite statements by counsel for the parties from the bar that there had been such agreement? We think not. Counsel who appears in court on behalf of his client is the spokesman for the client, but counsel’s authority to act for the client is not limited to the exercise of his power of argument and eloquence. “The duty of counsel” said Lord Esher M.R. in Matthews v. Munster (1887) 20 Q.B.D. 141 at p. 143, CA. “is to advise his client out of court and to act for him in court, and until his authority is withdrawn he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client” Counsel is presumed to have the authority of his client to settle and compromise an action, and if an action is settled in court in the presence of the client, his consent will be inferred and his will be precluded from saying that he did not understand the proceedings. If counsel acting within the limits of his apparent authority enters into an agreement with counsel for the opposing party as to the cause, the agreement is binding upon his client: See Baiden v. Solomon [1963] 1 G.L.R. 488, S.C. The case of Hickman v. Berens [1895] 2 Ch. 638, C.A. is an authority for the proposition that upon the question of the extent of the authority given by a client to his counsel to compromise litigation to which the client is a party, the court will accept the statement of counsel if made from his place at the bar, without requiring it to be an oath. In our view, the word “parties” in sub-rule (1) of rule 21 or Order 60 must be widely interpreted to include counsel instructed to appear for the litigants in court.
Consequently, we think that the learned judge of the court below misdirected himself in holding that only the parties, and not the counsel they had authorised to represent them, could come to an agreement as to the person or persons to whom probate of the will should be granted. The learned High Court judge seems to have fallen into this error because he allowed his reasoning to be clouded by a wrong comparison he made between Order 41, r. 10 and Order 60, r. 17. Order 41, r. 10 provides that where a defendant has appeared by a solicitor no order for entering judgment shall be made by consent, unless consent is given by his solicitor or agent. Order 60, r. 17 deals with the service of a warning on a caveator and Form 21 in Appendix J makes it clear that service should be effected on the caveator personally. Order 60, r. 17 has nothing to do with consent of parties and the comparison which the learned judge of the court below purported to make between that rule and rule 10 of Order 41 was therefore irrelevant.
We also think that Griffiths-Randolph J.’s criticisms of the recording of the proceedings by Owusu J. are unwarranted. Where parties are represented by counsel in court, it is the normal practice of the judges to record only the names of counsel at the bar who announce themselves as [p.442] of [1972] 1 GLR 435 appearing for the parties. The record of proceedings in the court below by Griffiths-Randolph J. lends support to this practice. It is only where the parties are appearing by themselves that their names are sorecorded in the judge’s note. In this case the parties were represented by their counsel before Owusu J.; both counsel agreed to settle the matter in a certain way and we think it is irrelevant that the settlement was upon a suggestion by the learned judge. It has not been alleged that counsel had no authority from the parties to settle the matter; neither is it alleged that the parties themselves were not present in court on 6 April 1970.
The only fundamental question in this appeal therefore is: On what grounds can a party, with full
knowledge of the facts, who authorises his counsel to consent to an order of the court and the consent is given, be able afterwards to withdraw it? It is well-settled that where consent is given in court by counsel with authority and with full knowledge of the facts, it is binding on his client and cannot be withdrawn: See Harvey v. Croydon Union Rural Sanitary Authority (1884) 26 Ch.D. 249, C.A. In Holt v. Jesse (1876) 3 Ch.D. 177 Malins V.C. said at pp. 183-184: “[W]here there has been a misapprehension on the part of counsel, where the case has been complicated or difficult, where either the materials have not been sufficiently before the counsel, or being before him, he
does not fully comprehend them, or may be excused for not having comprehended them, and consent has been given prejudicial to the client, I should entirely agree with the observation of the Master of the Rolls: ‘If the counsel says, I made a concession under a misapprehension, it never has been, and I trust it never will be, the course of the court to bind the counsel to that mistake.’ I say precisely the same thing in precisely the same terms, that if consent has been given under a misapprehension, or from a misstatement, or want of materials, and if all the information which counsel ought to have when he gives a consent is not before him, it never has been the rule of this Court, and I also trust it never will be the rule of this Court, that the unfortunate client should be bound by such misapprehension.” No court has jurisdiction to make a consent order unless the parties have consented. But if before the order is drawn up one of the parties discovers that it is made without his consent at all, or that counsel has exceeded his express instructions, he is entitled to have the consent order set aside: See Neale v. Gordon Lennox [1902] A.C. 465, H.L. and Darko v. Bank of West Africa [1972] 1 G.L.R. 242, C.A.
As a general rule, therefore, a consent order can be set aside only on the ground of fraud or mutual
mistake, or some other ground upon which a court can set aside an agreement: See Baah II v. Ampeh II, Court of Appeal, 2 March 1970, unreported. Again, where counsel gives consent to an order contrary to the positive instructions of the client, the consent order may be set aside. [p.443] of [1972] 1 GLR 435 In this case the only ground alleged upon which the application to set aside the consent order is based, is that Owusu J. did not consider the grounds upon which the caveat was lodged. But it is not alleged that counsel had no authority to give his consent, or that he was under a misapprehension, or that he was not in possession of the material facts which were necessary to the consent he gave at the trial. The law is that where a party with full knowledge of the facts authorises his counsel to consent and consent is given, he cannot arbitrarily get out of the consent order.
We therefore think the learned judge of the court below erred in holding that it was essential that the
parties should by themselves have given their consent to the order made by Owusu J. It has not been
contended by Dr. de Graft-Johnson that the respondents were not in court on 6 April 1970 when the
consent order was made.
There is, however, one procedural matter which deserves attention. Under Order 60, r. 21 (1) the court before granting probate, as agreed between the parties, may order that the caveat be removed from the file. Owusu J. omitted to make such an order. But this, in our view, is only a procedural error and we accordingly correct it and order that the caveat be removed from the file.
We therefore set aside the ruling of Griffiths-Randolph J. and confirm the grant of probate made by
Owusu J.
JUDGMENT OF ARCHER J.A.
I agree that the consent order previously recorded could not be revoked by another judge on a subsequent complaint by one of the parties that his counsel did not have prior consultation with him before the consent order was made. I also agree that counsel had full authority to handle the case and in the particular case before us, counsel for the caveators must have satisfied himself as to the valid execution of the will before giving his consent to the order being made and therefore must have abandoned the ground in the affidavit which challenged the genuineness of the signature of the testator. If the matter were as simple as that I would have had nothing more to say; but unfortunately I have strong views on certain aspects of this case and I feel I must break my silence with two observations.
The first point is whether the consent order was necessary at all; and if not, whether the court could not have thrown out the caveat after considering the affidavits filed. The two grounds relied on for opposing the grant were (1) that the will did not bear the true signature of the testator and (2) that all the attesting witnesses to the will were beneficiaries in respect of certain properties mentioned in the will and incidentally the witnesses were also the executors. As the first ground was not pursued by counsel in view of the contents of the consent order, we are left with the second ground. The question is whether the substance of the second ground disqualifies the applicants as named executors from applying to the court for the grant of probate? The two attesting witnesses were R. S. Arthur and Ekow Abakah who appeared to be beneficiaries under [p.444] of [1972] 1 GLR 435 the will. The law at the time when the will was executed was that these two witnesses could not take under the will. If they took or attempted to take under the will, any interested person, for instance the
residuary legatees or the persons entitled on an intestacy, could prevent them from taking under the will. But are they disqualified from acting as executors? They are not. I am sure that if this legal aspect of the matter had been stressed by the court for the comprehension of the caveators, they might have been persuaded to withdraw the caveat because there was no legal basis for preventing the grant of probate to the named executors.
My own experience in the High Court, Accra, and especially Cape Coast, where litigation in such
administration suits is profuse, is that caveats are filed by persons who have either no legal grounds to substantiate their opposition to a grant or have no interest whatsoever in the matter and as such their opposition is merely frivolous and vexatious; yet because the parties cannot agree under the existing rules of court, the applicant is compelled to take out a writ of summons to determine who is entitled to the grant. The cause of this unfortunate trend is one decision delivered by a predecessor of this court which has caused unnecessary litigation in the past, is still causing havoc, and will continue to shatter the confidence which beneficiaries have in the courts.
Rule 21 (2) of Order 60 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A),
provides that: “Failing the parties coming to such an agreement, however, the Court may order that the applicant do issue a writ of summons against the caveator within a specified period from the date of such order, to determine the issue as to who is entitled to a grant of probate or letters of administration, as the case may be.” The learned men who drafted this rule chose the phrase, “the Court may order” and one would have thought this expression gave the court ample latitude in deciding whether or not the case before it was one which required issues to be tried. In other words, situations could arise where no issues would be at stake and in such cases, the court should not order the applicant to issue a writ of summons as plaintiff against the caveator as defendant because all the undisputed facts might be available in the affidavits filed by the parties and the court thus in a position to decide who is entitled to a grant.
In other cases, the facts before the court are so minimal and inconsequential that the court must
necessarily rely on lengthy oral evidence to decide who is entitled to a grant. In these cases, it would be imprudent on the part of the court to act on such facts and the only sensible and proper course to adopt is to order that the issues should be tried in a normal action. For instance, each of two rival claimants asserts that he is the head of family or the customary successor duly appointed. The court cannot on the strength of their two affidavits decide the matter instanter and therefore the court must order the issue to be tried in an ordinary action. But where the affidavit of one party clearly shows that he has no interest whatsoever in the matter, or that his grounds for entering the caveat are [p.445] of [1972] 1 GLR 435 frivolous and vexatious, I cannot understand why a writ of summons should be ordered simply because the parties cannot agree on the person to whom the grant should be made. Invariably, applicants are ordered to issue a writ because it is explained that the court has a mandatory duty to order a writ of summons whenever the parties cannot agree. This trend is the result of the judgment of the former Court of Appeal in the case of Nimoh v. Acheampong [1959] G.L.R. 49, C.A. The judgment is very brief and I shall quote it in extenso for the purpose of my subsequent arguments: “In this administration matter, it appears that upon a motion coming on for hearing before the Divisional Court the parties failed to come to an agreement among themselves as to the person or persons to whom a grant of Letters of Administration should be made.
The Court was therefore bound under the provision of Order 60 Rule 21 (2) to order the applicant to issue a writ of summons against the caveators within a specified period. Instead of proceeding as required by the Rules the learned Judge ordered Letters of Administration to issue jointly to the applicant and the second caveator.
Mr. Henry Prempeh, for the respondents, has referred us to the case of Okata v. Ayimadu (1926-29 F.C. 156) which appears to support the learned Judge’s procedure in this matter. But we must point out that that case was decided upon some rules specially drawn up by Brandford-Griffiths C.J., as regards practice to be adopted in such matters at that time. Our own rules are now different from those special rules then applicable. The authority cited is therefore not in point.”
Were the rules drawn up by Brandford-Griffiths C.J. so special that rule 21 (2) is in effect so different
from those earlier rules? I am inclined to say no. The truth is that when the first Courts Ordinance was passed in 1876, the schedules to the Ordinance were silent on entry of caveats to prohibit grants.
Accordingly, Sir William Brandford-Griffiths who was Chief Justice from 1895-1911 drew up rules
which strictly could not be classified rules of court but merely as “practice directions” introduced by him on 21 September 1908. The said rules (as cited and set out by Smyly C.J. in Okata v. Ayimadu (1926) F.C. ‘26-’29, 156 at pp. 157-159) read: “1. A caveat is a caution to the Court not to proceed with the grant of Probate or Administration. It may be filed in any Court. 2. It may be filed before any application has been made for Probate or Letters of Administration. If so, the provisions contained in rule 14 of Order 50 should be followed. 3. If filed prior to any application for Probate or Letters of Administration, it should be brought to the notice of the Court as soon as any such application is filed, and the Court will bring to the notice of the applicant, the caveat, and will decline to take steps until the applicant duly warns the caveator under rule 15. [p.446] of [1972] 1 GLR 435
4. Where the caveat is filed after any application for Probate or Letters of Administration, it should be at once brought to the notice of the Court: no further steps should be taken with respect to the
application for Probate or Letters of Administration but a letter should be written to the applicant or
his solicitor, . . . 5. If the applicant applies for a warning under rule 15, the Registrar shall, on payment of the filing fee, prepare such document and file it, and give the applicant an office copy thereof for service, or, if the applicant desires it to be served through the Court, shall cause it to be duly served on payment of the service and mileage fees. 6. If the warning is not duly obeyed, the Court may proceed with the application for Probate or Letters of Administration, but it may direct notice to be given to the caveator by way of precaution.
7. If the warning is obeyed, it is for the applicant to ascertain the fact and to procure for himself, through the Court upon payment of the copying fee, a copy of the affidavit filed by the caveator.
The applicant should then move the Court to grant Probate or Letters of Administration as the case may be.
The motion should be on notice to the caveator, the caveator being given copies of any affidavits upon which the applicant intends to rely.
On the motion coming on, the court will decide as to whether a grant should issue to the applicant or no, or may direct issues to be tried, or may take such other steps as it may think fit.”
The last paragraph of the 1908 practice direction is very pertinent. These practice directions were
substantially made rules of court on 20 December 1930. See Rules No. 6 of 1930 published in the Gold Coast Gazette of 20 December 1930. Instead of adopting the exact wording of the 1908 directions on procedure on the final motion, the 1930 rules adopted the following language which still constitutes rule 21 (1) and (2) of Order 60:
“Upon motion coming on for hearing before the Court, if the parties can come to an agreement among themselves as to the person, or persons to whom a grant of probate or letters of administration, as the case may be, should be made, the Court may order that the caveat be removed from the file and a grant may then be made.”
This rule is nothing more than a repetition or re-inforcement of the court’s power to make consent orders in all proceedings. Indeed it does not add to or detract from the 1908 practice direction. Sub-rule (2) then reads:
“Failing the parties coming to such an agreement, however, the Court may order that the applicant do issue a writ of summons against the caveator within a specified period from the date of such order, to determine the issue, as to who is entitled to a grant of probate or letters of administration, as the case may be.” [p.447] of [1972] 1 GLR 435 It seems that the operative words in the sub-rule are “the Court may order.” This phrase is not mandatory.
Yet the decision in the Nimoh case has transformed the word may into shall because as it was reasoned in that judgment the new rule is so different from what Brandford-Griffiths C.J. directed in 1908. If the expression “may order” is construed to mean that the court may order or may not order a writ to issue, it follows that when the court decides not to order the issue of a writ, perhaps, it may decide who is entitled to a grant. If the caveator has no interest in the matter or the basis for the caveat is preposterous, is it in the interest of the administration of justice that an applicant should be ordered to issue a writ of summons to combat frivolity and vexatiousness? I think the court should be able to throw out such caveats and order their removal without further proceedings in the matter. I cannot see any difference between the 1908 practice direction and the existing rules on the procedure to be adopted on the final motion.
I do not think that the word “may” in the rule should be strictly construed as conferring an unfettered discretion on the court. In my view, it means that the court has power to order or not to order the applicant to issue a writ of summons. It does not mean that in all cases, the court should order the issue of a writ. It is this transformation of the word “may” into a mandatory command which has resulted in unnecessary litigation in the past. Whether the Nimoh decision is now binding on me I cannot tell, because since 1959 constitutions have come and gone and I cannot say what decisions are now binding on this court. I can only hope that some day the decision will be mellowed in furtherance of justice.
The last observation I wish to make is that there is a tendency to ask the court to expunge passages from the will of a testator although the grounds for such requests are not tenable in law. In the present appeal for instance, the consent order reads, “Both counsel agree with the court that the interests of the attesting witnesses who also are beneficiaries under the will should be expunged from the will and that the executors shall accordingly administer the remainder of the estate.” There is no justification for this order to expunge the interests of the attesting witnesses from the will. The law is that it is not necessary to expunge anything from the will as the executors will not be permitted to take their interests as attesting witnesses. What should be borne in mind is that whenever probate of a will is granted, the court is not giving its blessing and support to all the contents of the will. The court is only expressing its satisfaction that the will has been validly executed and that the named executors are at liberty to administer the estate.
The court should be extraordinarily slow in interfering with the will of a deceased person because the will constitutes hallowed ground and no one should tread upon it. If the court decides to interfere, it does not expunge anything from the will. If it decides to omit anything on the well-known grounds, the omission is made in the probate and not in the will itself. [p.448] of [1972] 1 GLR 435
For instance, the court will exclude from probate any words introduced into a will by mistake or without the instructions or knowledge of the testator. The court may exclude from probate and from registration words of atrocious, offensive or libellous character and it will exclude words of a blasphemous character.
On this point see Tristram and Cootes on Probate (21st ed.) at p. 64 and the cases cited in support of these principles. In the present appeal, the interests or passages purported to be expunged or omitted from the will do not fall within any of the above recognised categories of expungation and I think that as this court is confirming the probate granted in the court below, the consent order should not remain in its present form, as there is nothing in the will which legally should be omitted. I would therefore grant probate to the named executors by consent of the parties simpliciter. As the named executors are accountable to the named beneficiaries and the residuary legatees, the caveators can always detect whether the named executors as attesting witnesses have taken their interests under the will. The caveators can challenge them later. In any case, the consent order as it stands can be stultified if the residuary legatees permit the attesting witnesses to take. Such a course will make nonsense of the consent order. I would therefore confirm the consent order without expunging anything from the probate.
Finally, I have observed from the record of proceedings that although the named-executors applied for probate to cover all the properties mentioned in the will, that is, both the movable and immovable
property declared by the named-executors, yet when the court registry sealed the probate it was restricted to the personal property of the deceased. I hope steps will be taken to remedy this defect.
DECISION
Appeal allowed.
S. Y. B.-B.
