Taylor J:

This Probate action raises what Counsel described as an unique problem in the construction of a statue.

The facts are simple and undisputed.The testatrix made her Will in 1937; it was drawn by her Solicitor, Mr. RL Eber, and duly attested by him and his clerk.

In 1941, she consulted him with a view to making a fresh Will.The main change in the dispositions which she contemplated was the omission of certain gifts to her adopted son.In August 1941 she handed the Will to Mr. Eber having struck out the name of the adopted son in three places, adding her initials and in one place the date, 8 July 1941, but the alterations are not signed or initialled by any witness.In each place the original words are still clearly legible.The testatrix did not, however, give any definite instructions but went away to consider the matter further.The Will remained in Mr. Eber's office.

Nothing further was done in that year.From 1942 to 1945, it was difficult or impossible for her to proceed owing to the Japanese occupation.In 1946, the testatrix died without having taken any further step.Her daughters petitioned for a grant of administration on the footing that the Will is inoperative.Mr. Eber, having recovered the Will, with other papers, from his former office, informed the executors of its existence and of his doubt as to whether it is operative.The executors now propound the Will and the questions are, whether it is operative and if so whether as originally drawn or as altered in 1941.

The document as it stands may be read in two ways.If the alterations are ignored it is the last Will of the testatrix, duly executed.During her life it represented also a draft of a new Will containing different dispositions which she considered but which, at the date of the last consultation, she had not decided to make.If she ever reached a decision, she did not take any steps to implement it. Even if the alterations which she initialled had represented a testamentary intention, they would, on the authorities, have failed for want of attestation.

On the facts as I find them, it is clear that in England the Will would be admitted to probate with the deleted words restored.

The Wills Ordinance of the Colony deals with alterations in s. 16 which reads:

No obliteration, interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or some other part of the will opposite or near to such alteration or at the foot or end of or opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.

This is based on s. 21 of the English Act and the first portion is identical, but for one word.

The Act provides that no alteration shall have any effect EXCEPT so far as the original words are not legible.

In the Ordinance the word "except" is omitted from the third line.

The Revised Edition of 1919 contained the word "except". The Edition of 1925 omitted it. The Edition of 1936, which is still in force, follows that of 1925. (There are words in the last part of the section which do not appear in the Act and are probably attributable to a printer's error but they do not affect this case).

This is yet another illustration of the unwisdom of the policy of making revised, as distinct from collected, editions of statutes.

As far as reported cases go it seems that this particular error has never before been noticed.This is not strange because in this country very few testators make their own Wills and a solicitor would regularise alte