The Representation of Universal Trust Corporation

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith,Jurats Le Cornu,Olsen
Judgment Date01 September 2014
Neutral Citation[2014] JRC 163
Date01 September 2014

[2014] JRC 163

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith, Esq., Commissioner andJurats Le CornuandOlsen

In The Matter of the Representation of Universal Trust Corporation Concerning the Estate of Ian Graeme Cormack
And In The Matter of the Probate (Jersey) Law 1998

Advocate R. O. B. Gardner for the Representor.

Authorities

Hawksford Executors Limited re Estate Ivelaw [2013] JRC 188 .

Probate — estate of Ian Graeme Cormack.

THE COMMISSIONER:
1

On 28 th July, 2014, the Court directed that the terms of the Zimbabwean Will of the late Ian Graeme Cormack (“the deceased”) did not revoke his earlier overseas will and we now set out our reasons. The application raised the not uncommon problem of a will in relation to one part of the estate of a deceased inadvertently purporting to revoke an earlier will in relation to another part of the estate.

2

The deceased died domiciled in Zimbabwe on 20 th August, 2012, aged 76. He was survived by two sisters and the three children (two nephews and one niece) of his late brother.

3

On 28 th April, 1989, he executed a will in relation to his movable and immovable estate situate outside Zimbabwe (“the Overseas Will”). The beneficiaries of his Overseas Will today are his two sisters in equal shares. In the Overseas Will, the deceased appointed Barclaytrust International Limited as executor and trustee. It contained the following revocation clause:–

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

4

By a first codicil relating solely to his estate outside Zimbabwe, the deceased appointed the representor as executor and trustee of his overseas estate.

5

On 24 th February, 2010, the deceased executed a will in relation to his Zimbabwean estate (“the Zimbabwean Will”). He appointed a Zimbabwean firm of legal practitioners as executors. The Zimbabwean Will contained the following introductory clauses:–

“I, the undersigned IAN GRAEME CORMACK, (born on 10 th October 1935) presently of Mutare, Zimbabwe where I am domiciled hereby declare this to be my Last Will and testament for my Zimbabwean estate only.

I REVOKE all previous testamentary dispositions made by me.”

6

Having made three pecuniary bequests the deceased's Zimbabwean Will then went on to bequeath the rest and residue of his “Zimbabwean estate” as to one ninth between to each of the two nephews and one niece and as to one third to each of his two sisters.

7

At the date of his death, the estate of the deceased outside Zimbabwe comprised various bank accounts and investments of modest value held with Barclays Bank Plc in the Island of Jersey.

8

The issue arose as to whether by the first clause of the Zimbabwean Will the deceased had revoked his Overseas Will, resulting in his having died intestate in relation to his overseas estate. The beneficiaries of both wills had been consulted and, with one exception, had written to the Court supporting the application for a direction that he had not done so.

9

One beneficiary, his nephew Garrick Cormack, had neither approved nor rejected the application. The representor's understanding is that his occupation requires him to travel internationally within Africa and outside Africa. On 5 th December, 2013, he did respond to two earlier letters from the Zimbabwean executors in which he said that the deceased had expressed to him in 2010 that he was considering making various alterations to his wills. It is clear, however, that his any such thoughts were not carried through in the intervening years prior to the death of the deceased and the position remains as set out in the Overseas Will and the Zimbabwean Will. On 17 th March, 2014, the Zimbabwean executors wrote to Garrick Cormack for a final time, requesting that he respond by return and advising that the application to the Court would proceed in any event; there was no response.

10

In the event that the deceased died intestate in relation to his overseas estate, then we were informed that under Zimbabwean law, it would devolve upon his heirs, namely to the children of his late brother as to one third and to his two sisters as to one third each. Garrick Cormack would therefore benefit by one ninth from the overseas estate.

11

The representor produced an affidavit from Anne Eleanor White of the firm of legal practitioners who were appointed executors in Zimbabwe and who drafted the Zimbabwean...

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