In the Estate of Guiseppe Pino Baretta (Civil Cause 116 of 1984) [1984] MWHC 2 (5 June 1984)

IN @HE HIGH COURT OF MALAWI, BLANTY CIVIL CAUSE NO. 116 OF 1984 IN THE &STATS OF GUISEPPE PINO BARRETTA( DECEASED) Corans: SKINNER, Cede Chirwa of counsel for the Applicant Chalunca, Official Interpreter Mkancawire, Court Reportcr ORDER fn application was mace to the High Court by Philip ; Marcus Pitt, the lawful attorney of three of the next of kin - of a deceased person Guiseppe Pino Barrectta, for a grant of | letters of administration with will annexed. When the said / application came before me in chambers I adjournce it in ‘ accordance with the powers vestce in a jucge by Rule 5 of the Probate (Non-contantious) Rulos for Cceternination in open court anc Girectec that counsel on behalf cf the applicant should attend to argue the matter. The frets can be statec bricfly. The Ceceased cied on the 14th of July 1980 at Liwonte in Melewi cnc at the tine of his death he was domicilec in Itely. Prior to his cenath he wrote a holograph will in the English language anc signe it but it was not witnessed. It is clear, I think, that the document must have been written in Malawi. There is,evicence from Dr. Cnrlo Luti ce Sere, a Notary versed in Italian law, that the document is 2 valic testament accorcing to Italian Law. . The guestion which causcd me some concern anc which falls for consicerntion is whether the “ocuncnt is admissible to proof in Malawi in order thet the grant mey issuc. Unter the comion law of Inglanc the genernl rule hes beon that in orcer to be admissible to proof in thet country 2. will of movablc estate must be shown to have been executed in nccorcance with the formalitics require: by the Law of the Conmicile of the testator st the time of his centh, I 2m satisficd thet uncer the common law of Malawi there is a sinilar rule but I have to.. ask nysclf whether that general rule is subject to mno@ifiestion by the Wills anc Inhoritence Act, Cap.10202 (hereinafter referrec to as the Act). Part II of the Act Ceals with wills onc scction 5, which is containce in that part of the Act, relates to the naking of wills; the section consists of four sub-scctions anc I set it outs a 2 Be (1) Every will shall be in writing end Shall be signec by the testctor in the presence of at lonst two competent witnesses who shall also sign the will in the presonce of the testator an’ in the presenec of exch other as witnesses te the signeture of the testator. (2) <Any person who is of sounc iiind snc is not a minor shell be a coupetont witness for the purpose of this section. (3) A will may be mede outside Mealewi in respect of any proporty in Malawi. <A will so mace Shall be valic if mace in accordance with the prior provisions of this scction or of the law of the place where it wes mace, or the lav of the place where the tcstator had his comicile when the will was meco. (4) Notwithst-ncing the other provisions of this section anc of section 4(1) a member of the aruca forces of Malawi, on actunl service as such, may make a will which shall be valic notwithstencing thet he 18 a sinor or thet any of the fornelitics require. by subsection (1) heve not been complicde wit he It is argucc by Mr. Chirwa, who appears for Mr. Pitt, that the will cannot be sit to be none-acimissible for probate purposes Simply becnuse it “ocs not comply with the law of Malewi. He Subnits thet the valicity of the will must be cecidct by the lav of the Ceccasec's Comicile. He relics on the cosrion Law rule relating to wills of personalty. He contencs thet the wording of section 5(1) of the Act is dorivoc fron scction 9 of the Wills Act 1837 end that in Inglene thet scetion applics only to wills requiree. to be oxecutec according to Inglish law cnc not to testaments cxccutes accorcing to the low of - forcign country ana he srys thet section 5(1) Shoulc be intorz:rctatcc in the Same Mennor. I agree. Uncoubtcdly, this arguncnt in so far as it relates to the law of England is 2 correct one and there is judicial suthority for it in Ro Price, Tonlin v. Latter, (1900) 1 Ch. 442. If section 5(1) stood alone, there could be no arguncnt but that the law is the sane in Malnwi. I have to consicer whether the position ¢ciffers beceuse of the remaining Subsections. It is argucc by lir., Chirwa thet section 5(3) has been Cerived from section 1 of the Wills dct 1861 -— Loré Kingscown’s Act. In ay opinion a cistinction can be clearly drawn between section 1 of the Wills dct 1861 ane section 5(3) of the Act. What Lord Kingsdowi's Act dic was to make an exception to the gencoral principlcs as to the fornel valicity of wills in respect of tcstancnts nece out of the United Kingdon by British subjects. Un“ecr such dct a will of personalty mace by e& person who was a British subjoct ct the tinc of its exccution was recogniscea as formally valic if it was exccuted by the law of the place where it was mece or by the Law of the place where the testator was domicile: or valic by the law enforeec in thet part of Her Brittanic Mejcesty's Cominion where the testator had his domicile of origin. Section 5(3) is not restrictcoc to * Zz, of Melewil enc woul covor , WAT 28 le sutel a L Sy . citigen of my country provitcd it wes in respect cf proporty in Meal-wi. Seu oly our section applics all property wnt not just jorsonsl tito, 8Ueh or. a sions. Section 5(3) i en Lore Kingsdown 's u S . Lt is still appliesble wily to wills cxecute? outside Loan sntisfiec thet the s=pplicstion of section 5(1) is only to wills roquircd to be cxocuter in accordance with tho law of Mealewi ene thet subsection (3) relates only to wills mace outsice Melawi anc Ioan of opinion thet there is nothing in Sseetion 5 as a whole to prevent the acmission to vrabate in this country of a will ucce nore Dut Medel exccuted accorcing to the law of o forcign country where the testetor is donicilcd in such forcign country. Consequontly, I orcer thet a erent of lcttors of acdninistration with will annexed issuc to Philip Marcus Pitt in respect of the saic estate. PRONOUNCED in open court this 5th cay of Junc, 1984 Blantyre. ce @ Ny \ Hay wn Je A aaron CHIsr JUST