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

• Jurisdiction: European Union
• Law Firm: Herbert Smith Freehills
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Author: Mr Richard Norridge and Hussein Mithani
• Published date: 27 January 2023

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...