UK: The Court Of Appeal Determines Where An Executor Appointed In Respect Of A Foreign Will Derives Their Authority To Bring English Proceedings

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.