The Representation of Hawksford Executors Ltd

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith,Jurats Morgan,Liston
Judgment Date27 September 2013
Neutral Citation[2013] JRC 188
Date27 September 2013

[2013] JRC 188

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith, Esq., Commissioner, andJurats MorganandListon.

In The Matter of The Representation of Hawksford Executors Ltd

Advocate K. O. Dixon for the Representors.

Authorities

The Origin and Development of Jersey Law (2005 edition).

Dicey, Morris and Collins The Conflict of Laws.

Cheshire and North's Private International Law (11th edition).

Barlow Clowes International Ltd -v- Henwood [2008] EWCA Civ. 577 .

Re Clore [1984] S.T.C. 609 .

Munro -v- Munro [1840] 7 Cl & Fin 842 .

Re Fuld's Estate (No 3), Hartley -v- Fuld [1968] P 685 .

Winans -v- Attorney-General [1904] AC 287 .

Agulian -v- Cyganik [2006] EWCA Civ 129 .

Dempsey -v- Lawson [1876–77] LR 2PD 98 .

Re Wayland's Estate .

Clarke -v- Scripps [1852] 2 Rob Eccl. 563 .

Re Morris, Lloyds Bank Ltd -v- Peake [1970] 2 WLR 865 .

Re Phelan [1972] Fam 33 .

Re the Estate of Vickers [2001] JLR 712 .

Williams on Wills.

Probate — reasons for finding the deceased did not intend to revoke her Will.

THE COMMISSIONER:
1

On 8 th July, 2013, the Court found that the late Florence May Ivelaw née Saunders (“the deceased”) did not intend to revoke her will dated 14 th July, 2000, made in relation to her world-wide estate excluding Belgium and we now set out our reasons.

2

Three affidavits were filed in support of the application, which was not opposed, the first by Mr Timothy Cartwright, a director of Hawksford Executors Ltd (“Hawksford”), the second by Mr Martin Blackwell, from Belgium, who knew the deceased and her late husband and the third from Mr Anthony Paul Hewitt, an English solicitor and partner at Withers LLP. We set out the background.

3

The deceased was born in London on 2 nd February, 1921, and had an English domicile of origin. She married her late husband on 12 th July, 1947, in London; he too had an English domicile of origin.

4

Her late husband was a Squadron Leader in the Royal Air Force and he and the deceased lived for periods in Germany, Northern Ireland and Norway as required by his service for the RAF. After he left the RAF, he was employed by Euro Control (the European organisation for the safety of air navigation) based in Belgium. On his retirement, he and the deceased remained living in Belgium, but made numerous trips back to the UK. After his death on 29 th June, 2006, the deceased continued living in Belgium until her death on 7 th October, 2009. They had no children.

5

The deceased and her late husband had assets in Jersey held through Lloyds TSB Bank (Jersey) Limited (“Lloyds”) which were always dealt with quite separately from their assets in Belgium.

6

In July 2000, Lloyds instructed the local firm of English solicitors Galsworthy & Stones to prepare wills for them dealing with their estate outside Belgium. Those wills were executed by them on 14 th July, 2000. We will refer to them as “the world-wide wills” or “the world-wide will” as the context requires.

7

Each world-wide will was expressed as relating solely to their estate outside Belgium (defined as “my Overseas Estate”-we will use the same definition) and contained the following revocation clause:–

“I HEREBY REVOKE all former Wills and testamentary dispositions heretofore made by me relating to my Overseas Estate and I DECLARE that this Will shall take effect concurrently with and independently of any such other Will or Wills I may have made or may hereafter make relating to my estate situate in Belgium.”

8

The world-wide wills appointed G & S Executors Limited as executor and trustee. Under the terms of each will, they left their Overseas Estate to each other and failing each other, to three charities, namely the Imperial Cancer Research Fund, the Royal Society for the Prevention of Cruelty to Animals and the Royal Air Force Benevolent Fund.

9

When sending them copies of the world-wide wills, Mr Cartwright stressed that they should be careful not to revoke them in error should they execute future wills relating to their estates in Belgium.

10

The world-wide wills came to be held by Galsworthy & Stones and there was ongoing correspondence from time to time with Mr Cartwright. In a letter written to him dated 30 th May, 2003, the deceased informed him that she and her husband had made wills in Belgium. She implied that those wills related exclusively to their estate in Belgium. She enclosed financial information in relation to the Overseas Estate saying this:–

“There is some urgency in these documents being in safe hands as, to date, no one other than ourselves and Lloyds TSB, Jersey is aware that we possess them.”

11

In his letter of 16 th June, 2003, Mr Cartwright asked for express confirmation that their Belgium wills related exclusively to their estate in Belgium, which was given by the deceased in her reply of 8 th July, 2003, when she advised him:–

“Our wills dealing with our Belgian estate apply exclusively to this country — i.e. Belgium.”

12

Following the death of her husband, the deceased did not include the value of the Overseas Estate in the Belgian Inheritance Tax Return as a consequence of which, an amount of unpaid tax remains due and owing to the Belgian tax authorities with respect to his estate, together with a penalty and interest for late payment. This omission on the part of the deceased would seem to be consistent with her objective of maintaining a separation between her assets in Belgium and her Overseas Estate.

13

The last communication by Mr Cartwright with the deceased was on 10 th April, 2007, when he confirmed her continuing instructions to him to retain in his firm's safe-keeping the financial documentation that had been enclosed with her letter of 30 th May, 2003.

14

After the death of the deceased on 7 th October, 2009, Mr Cartwright saw for the first time a copy of the holographic will made by the deceased on 14 th June, 2008, (“the Belgian will”).

15

The key provisions of the Belgian will are as follows:–

  • (i) The second clause purports to revoke all former wills made by the deceased: Je révoque toutes dispositions antérieures de dernière volonté”.

  • (ii) In the third and fourth clauses, the deceased then sets out the property that she owns in Belgium: Je suis propriétaire d'un appartement en Belgique à 1180 Uccle, Résidence du Parc Longchamp, rue Langeveld, 69/5 à 1180 Uccle” and je suis titulaire de comptes chez la FORTIS Banque, avenue Montjois 33A, 1180 Uccle”.

  • (iii) She names as her sole heirs eight beneficiaries comprising six individuals (her goddaughter and nephews and nieces of her late husband), the Belgian Alzheimer Foundation and the Anglican Holy Trinity Church Pro-Cathedral (in Belgium).

16

The Belgian will is drafted in almost identical terms to the provisions of the holograph will executed by her late husband on 13 th June, 2003, (with the same non substantive errors); the material difference between the two is that the references to the surviving spouse are omitted from the Belgian will as one would expect.

17

All eight beneficiaries of the Belgian will have confirmed in writing that they accept that when the deceased made the Belgian will she intended to have two separate wills and did not intend to revoke the world-wide will. They confirmed that they would not contest or object to any application to the Court made by or for the benefit of the beneficiaries of the world-wide will which may be necessary to confirm that the deceased never intended to revoke the world-wide will.

18

In relation to private international law, the Jersey courts have consistently had regard to English common law (see The Origin and Development of Jersey Law; an outline guide by Stéphanie Nicolle, 5 th paragraph 15.33 (2005 edition)) and in particular to the rules in Dicey, Morris and Collins The Conflict of Laws.

19

The material or essential validity of a will of movables or of any particular gift of movables contained therein is governed by the law of the testator's domicile at the time of his death (see Rule 154 of Dicey 15 th Edition). Rule 159 of Dicey provides:–

“Subject to the Exception hereinafter mentioned, the question whether a will has been revoked depends on the law of the testator's domicile at the date of the alleged act of revocation.”

20

The Exception is set out at Rule 159 27E–094 as follows:–

“If the alleged act of revocation is the execution of a later will or codicil, the question whether the later instrument revokes the first depends on whether the second instrument is valid in accordance with the foregoing Rules.”

The following commentary is contained at 27–095:–

“A later will or codicil may revoke an earlier will either expressly or by implication. It may do so expressly, as when the testator says in the later instrument “I hereby revoke all testamentary dispositions heretofore made by me”. In such a case it would seem obvious that the question whether the second instrument revokes the first should be determined by the intrinsic validity of the second will, and this in turn depends upon the Rules already laid down in this chapter, particularly Rule 151 (capacity) and Rules 152 and 153 (formal validity). However, if one will deals only with property in a foreign country and is made in foreign form, and the other deals only with property in England, the later will does not necessarily revoke the earlier one even if it contains a revocation clause.”

The last sentence, which is relevant to the facts here, cites the following authority:–

“223. In the estate of Wayland [1951] 2 All E.R. 1041 ; Re Yahuda's Estate [1956] P. 388; Guardian Trust and Executors Co of New Zealand Ltd -v- Darrock [1973] 2 N.Z.L.R. 143; Re Baldry (deceased) [2004] W.T.L.R. 609 (Fam.); In the Estate of Vickers [2011] J.L.R. 712(Royal Court of Jersey).”

21

We will refer to some of those authorities shortly,...

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