The Representation of Hawksford Executors Ltd

JurisdictionJersey
CourtRoyal Court
JudgeClyde-Smith, Commr. and Jurats Morgan and Liston
Judgment Date27 September 2013
Date27 September 2013
ROYAL COURT
Clyde-Smith, Commr. and Jurats Morgan and Liston

K.O. Dixon for the representors.

Cases cited:

(1) Agulian v. Cyganik, [2006] 1 F.C.R. 406; [2006] W.T.L.R. 565; (2006), 8 ITELR 762; [2006] EWCA Civ 129, considered.

(2) Barlow Clowes Intl. Ltd. v. Henwood, [2008] B.P.I.R. 778; [2008] EWCA Civ 577, considered.

(3) Clarke v. Scripps (1852), 2 Rob. Eccl. 563; 163 E.R. 1414, referred to.

(4) Clore (No. 2), Re, [1984] S.T.C. 609, referred to.

(5) Dempsey v. Lawson(1877), 2 P.D. 98; [1969 72] All E.R. Rep. 296, considered.

(6) Fuld (No. 3), In re, [1968] P. 675; [1966] 2 W.L.R. 717; [1965] 3 All E.R. 776, considered.

(7) Morris, In re, [1971] P. 62; [1970] 2 W.L.R. 865; [1970] 1 All E.R. 1057, considered.

(8) Munro v. Munro (1840), 7 Cl. & Fin. 842; 7 E.R. 1288, referred to.

(9) Phelan, In re, [1972] Fam. 33; [1971] 3 W.L.R. 888; [1971] 3 All E.R. 1256, considered.

(10) Vickers (née Francis), In re, 2001 JLR 712, considered.

(11) Wayland, In re, [1951] 2 All E.R. 1041, considered.

(12) Winans v. Att.-Gen., [1904] A.C. 287, considered.

Texts cited:

Cheshire & North's Private International Law, 11th ed., at 844 (1987).

Dicey, Morris & Collins, The Conflict of Laws, 15th ed., vol. 2, para. 27R 044, at 1426; para. 27R 086, at 1442; para. 27E 094, at 1446; para. 27 095, at 1446 (2012).

Nicolle, The Origin & Development of Jersey Law, para. 15.33 (2005 ed.).

Williams on Wills, 7th ed., vol. 1, at 67 (1995).

Succession — wills — revocation — clause in will dealing with Belgian assets revoking all previous wills revokes only previous wills concerning Belgian assets, not wills concerning overseas assets, if testator's intention clear

An executor of a will applied for a determination that it had not been revoked.

The deceased and her husband were born in England, which was their domicile of origin. They lived in various countries in the course of the husband's employment, the last of which was Belgium. After he retired, they remained in Belgium but did not fully integrate into Belgian society and made numerous trips back to the United Kingdom (the deceased remained in Belgium following her husband's death in 2006).

The deceased and her husband had assets in Jersey which they dealt with separately from their assets in Belgium. In 2000, they made wills dealing with their estate outside Belgium ("the worldwide wills"). In 2008, the deceased made a will which purported to revoke all former wills. The will set out the assets that she owned in Belgium and named eight beneficiaries.

The beneficiaries of the Belgian will did not object to the representation asking the court to determine that, notwithstanding the terms of that will, the deceased had not intended to revoke her worldwide will.

Held, ruling as follows:

(1) The deceased had not intended to revoke the will governing her worldwide assets. It was clear from the face of the Belgian will that it extended only to the deceased's assets in Belgium and that the revocation clause was limited to previous wills that she had made in relation to those assets. In the Belgian will, the deceased set out formally the assets that she owned in Belgium, which it was clear she intended the Belgian will to govern and which would devolve upon the beneficiaries of that will. If she had intended to revoke her worldwide will, she would have listed her worldwide assets ( paras. 21 22).

(2) As the Belgian will clearly expressed the deceased's intentions it was unnecessary to look to the rules of private international law, although the court would do so for completeness. Whether the later Belgian will revoked the worldwide will was governed by the law of the deceased's domicile when she made the later will. Despite the deceased's long residence in Belgium, there was insufficient evidence that England, as her domicile of origin, had been replaced by Belgium. Domicile of origin was tenacious and could only be displaced by clear and unequivocal evidence that a person had made a new country his or her sole or chief residence, with the intention that it should be such permanently or indefinitely, which evidence did not exist in the present case. English law therefore governed the issue of whether the Belgian will revoked the worldwide will. As a matter of English law, an express revocation clause would generally be a strong indication that the testator intended to revoke all previous testamentary instruments unless (a) a contrary intention could be proved; (b) the clause was inserted by mistake; or (c) the doctrine of dependent relative revocation applied. In the present case there was strong and compelling evidence that the deceased had not intended to revoke her worldwide will when she made the Belgian will. The court therefore found that the deceased had not intended to revoke her worldwide will and would give directions accordingly ( paras. 23 40).

1 CLYDE-SMITH, COMMISSIONER: On July 8th, 2013, the court found that the late Florence May Ivelaw, née Saunders ("the deceased") did not intend to revoke her will dated July 14th, 2000 made in relation to her worldwide 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 February 2nd, 1921 and had an English domicile of origin. She married her late husband on July 12th, 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 organization 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 United Kingdom. After his death on June 29th, 2006, the deceased continued living in Belgium until her death on October 7th, 2009. They had no children.

5 The deceased and her late husband had assets in Jersey held through Lloyds TSB Bank (Jersey) Ltd. ("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 July 14th, 2000. We will refer to them as "the worldwide wills" or "the worldwide will" as the context requires.

7 Each worldwide 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...

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