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Summary
In Jennison v Jennison [2022] EWCA Civ 1682 the
Court of Appeal determined that an executor of a foreign testator
derived their title and authority to bring proceedings in England
and Wales from the will of the testator and not from a grant of
probate. In particular, the Court of Appeal noted that this rule
could apply even where the law of the testator’s domicile did
not follow the approach under English law (i.e. treat an executor
as acquiring title from the date of the testator’s death). In
taking this approach, the Court of Appeal followed the Privy
Council decision in Chetty v Chetty [1916] AC 604.
The decision also dealt with two interesting ancillary points:
(i) whether the Court’s discretion under CPR 3.10 to correct an
error of procedure such as a failure to comply with a rule or
practice direction could be exercised to allow the proceedings to
continue in the event the executor did not have standing; and (ii)
whether the re-sealing of a grant of probate under section 2, the
Colonial Probates Act 1892 applied retrospectively.
Hussein Mithani, an associate in our disputes and private wealth
team, considers the decision in more detail below.
Background
Graham Jennison (the “Deceased“) was
a resident of New South Wales, Australia. His wife, Glenda Jennison
(the “Claimant“), was appointed his
executrix under his Australian will and the Deceased’s estate
comprised property in both Australia and England.
The Deceased had owned land in Wales with his brother (the
“First Defendant“) as tenants in common.
On the Deceased’s death, his 50% share in that land formed part
of his estate. Following the Deceased’s death, the First
Defendant and his wife (the “Second
Defendant“) undertook various transactions in respect
of the land in Wales. The Claimant then brought proceedings in
England and Wales alleging various breaches of trust.
When the Claimant brought proceedings in England and Wales the
only grant of probate obtained was from the Court of New South
Wales. The Claimant had not obtained a grant of probate in England
and Wales nor had the New South Wales grant of probate been
resealed by the date of the substantive trial. The Defendants
argued that the Claimant has no standing to bring her claim in
England and Wales on the basis she had no grant in England and
Wales or resealed grant and sought to strike out the claim. This
strike out application was heard on the morning of the substantive
trial before the Manchester County Court.
Strike out Application and Appeal
The District Judge dismissed the strike-out application and held
that an executor derived its title from the will and not from any
letters of administration or grant from the courts and that it
followed that the Claimant could bring this claim irrespective of
whether she was a foreign personal representative or not. The
District Judge let the trial proceed and gave judgment in favour of
the Claimant. The Defendants subsequently appealed the strike-out
application.
The appeal was refused by HHJ Pearce who noted that the
proceedings were not, as a matter of law, improperly bought. HHJ
Pearce held that if he was wrong on that point then any defects
could be cured under CPR 3.10. The Defendants appealed again.
Judgment
The Court of Appeal refused the appeal and confirmed that an
executor derived their title and authority from the will of the
testator, and not from any grant of probate. The Court of Appeal
held that this applied even where the testator who had been
domiciled in a territory different from that of the pending
proceedings.
In taking this approach, the Court of Appeal followed the
decision of the Privy Council in Chetty v Chetty and noted
that, whilst it was not bound by decisions of the Privy Council,
they found no reason to depart from this authority. In this regard,
it is worth noting that the Defendants argued that the Court of
Appeal was bound by the House of Lords decision in
Attorney-General v New York Breweries Co Ltd [1899] AC 62.
The Defendants’ position was that this decision was binding
authority for the proposition that a foreign executor had no
standing to bring proceedings in England (without an English grant
of probate or a resealed grant of probate). However, the Court of
Appeal rejected that argument and held that New York
Breweries really concerned whether probate duty was payable in
circumstances where foreign executors directed transactions in
respect of English property without any intention of obtaining an
English grant of probate. The Court of Appeal also held that the
judgment did not go so far as to say that a foreign executor would
not have standing without an English grant of probate or a resealed
grant of probate. The Court of Appeal stated that New York
Breweries did no more than confirm that a foreign executor
will need to obtain a grant of probate or resealing if they need to
prove title. On this basis it was distinguished from Chetty v
Chetty.
The next question was whether the approach in Chetty v
Chetty applied to all foreign executors or whether it was
limited to instances where the law of the testator’s domicile
treated an executor as acquiring title from the date of the
testator’s death. The Court of Appeal held that the question
was whether the Claimant acquired title to the deceased’s
estate on death. On the facts they noted that the New South Wales
law on the point was immaterial and held the Claimant had
standing.
The Court of Appeal also noted that, under English law, there is
a difference as to when an executor obtains title, and an
administrator obtains title. An executor obtains their title from
the will from when the testator dies, and it is said that the will
“speak from death”. However, an administrator only
acquires title when the letters of administration are granted.
Before that grant is given, legal title to the estate of a person
who dies intestate (i.e. without a will) vests in the Public
Trustee under section 9 of the Administration of Estates Act 1925.
This was important in the present case as the Defendants relied
upon a number of authorities which concerned administrators.
The Court of Appeal also covered a point on resealing a grant of
probate under the Colonial Probates Act 1892. It held that the
re-sealing of a grant of probate operated as a grant only from the
date of resealing and was not retrospective under section 2 of the
Colonial Probates Act 1892.
Finally, the Court of Appeal dealt with whether the Court’s
wide discretion under CPR 3.10 to correct an error of procedure
such as a failure to comply with a rule or practice direction could
be used to remedy a nullity in the proceedings (i.e. if the
Claimant did not have standing). The Court of Appeal’s decision
was that CPR 3.10 could not be used to cure proceedings that were a
nullity from the outset.
Comment
This case covers a number of interesting issues on foreign
executors, the Colonial Probates Act 1892, and the scope of CPR
3.10.
The area of focus for the purpose of this post is that the Court
of Appeal has made it clear that an executor bringing suit in
England and Wales derives their title from the will and this
applies even if the executor and the will are foreign. However, it
is worth noting that even though the Court of Appeal distinguished
New York Breweries, it is still important for executors to
note that this case requires them to prove title before obtaining
any relief (i.e. by obtaining some form of grant even if it is from
a foreign court).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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