England and Wales High Court (Chancery Division) Decisions

Barton (Deceased), Re [2002] EWHC 264 (Ch) (20th March, 2002)

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		February 20, 2002

Mr Justice Lawrence Collins:

I Introduction

1. Professor Sir Derek Barton was an eminent research scientist who won the Nobel Prize for chemistry (jointly) in 1969. From 1957 to 1978 he was Professor of Organic Chemistry at Imperial College London. After retiring from that position he pursued his research interests, first at an institute in France and then as Distinguished Professor of Chemistry at the Texas A & M University from 1986. He died in March 1998, domiciled in Texas.
2. He left the residue of his estate (other than that in the United States) on trust. The residuary estate is worth about £1.5 million. The beneficiaries were his son, who would have been entitled to an annuity of £20,000 p.a. from age 65, and the Royal Society of Chemistry, which would have been entitled to the rest. Under English law the beneficiaries were entitled to vary or terminate the trust, and by a Deed of Variation the son and the Royal Society of Chemistry agreed that the son was to receive a lump sum of £164,000 in lieu of the annuity. The question in this case is whether English law applies to the validity of the Deed of Variation, or whether (as one of the trustees contends) it is governed by the law of the domicile, Texas law, which is said to have a rule that the wishes of the testator who establishes a will trust cannot be overridden by the beneficiaries. The case raises questions on the scope and effect of the Hague Convention of 1985 on the Law Applicable to Trusts and their Recognition, to which effect was given by the Recognition of Trusts Act 1987, and appears to be the first case in this country on the Hague Convention and the 1987 Act.

II Facts

3. Sir Derek was married three times. There was a son of the first marriage, William Barton, the second defendant, who was born in 1947, and who was his only child. The first marriage ended in 1967, in what the documents suggest was an acrimonious divorce. In 1969 Sir Derek married a French lady, Christiane Cognet. She died in 1992. In 1993 Sir Derek married for a third time, to an American lady, Mrs Judith Cobb (Lady Barton, the first defendant), who was (according to the correspondence) a stockbroker. Sir Derek died in March 1998.
4. Mark Tod, the claimant, was Sir Derek’s solicitor, and is, with Lady Barton, the executor and trustee of one of Sir Derek’s wills, which he executed on January 20, 1995. The third defendant, the Royal Society of Chemistry (“the Society”), is a registered charity incorporated by Royal Charter. In 1980 it succeeded to the functions of the Chemical Society and the Royal Institute of Chemistry. The Society is the principal beneficiary of the English will. Sir Derek was its President in 1973-1974.
5. In January 1995 he made two wills. One of the wills dealt exclusively with his property in North America, which he left to Lady Barton, and does not play a role in this case. The other will, which was expressed to take effect in accordance with English law, was in relation to all his estate except his assets in the United States.^[1]
6. This will appointed Lady Barton and Mr Tod to be the executors and trustees. He gave Lady Barton his personal chattels and his interest in immovable property owned by him in France.^[2] He gave some pecuniary legacies (including £30,000 to William Barton and his wife). The present value of the estate is a little under £1.5 million.
7. After those bequests, he left all the estate to which the will related on trust. I shall set out the terms below, but the broad effect was that the Society was to get the whole of the estate, except such part as would be required to fund an annuity of £20,000 per annum for William Barton from his 65^th birthday.^[3]
8. By English law, by virtue of the principle known as the rule in Saunders v. Vautier,^[4] beneficiaries who are sui juris and together entitled to the whole beneficial interest can put an end to the trust and direct the trustees to hand over the trust property as they may direct.
9. The sole beneficiaries of the trust were William Barton and the Society. Shortly after Sir Derek’s death the Society began to explore with William Barton’s advisers means by which William Barton’s pension might be commuted for a lump sum. When Lady Barton heard of this, she told Mr Tod that Sir Derek had been quite sure that it was in William Barton’s best interest to have a pension, and not an earlier lump sum, and that Sir Derek would have opposed the proposal, and she also was vehemently opposed to it, although she was sympathetic to a way being found to pay the school fees of William Barton’s son out of the estate.
10. From 1999 there were negotiations between the solicitors for William Barton and the Society on a figure for commutation of the annuity. After actuarial advice was taken, and after negotiations in a bracket from £100,000 to £215,000, the figure of £164,000 was agreed between William Barton and the Society. A Deed of Variation was executed on March 14, 2000, between William Barton and the Society, whereby the trust fund was to devolve as if the provisions in the will for the trust were omitted and Sir Derek had by the will directed that the trust fund be distributed as to £164,000 to William Barton absolutely and as to the remainder to the Society for charitable purposes.
11. Lady Barton was very angry. Mr Tod told the Society that Sir Derek would have been appalled at the idea that William Barton and the Society had come to an agreement which had achieved exactly what he did not want; and that the annuity for William Barton was included in Sir Derek’s will at Lady Barton’s urging. In correspondence Lady Barton described the Deed of Variation as an obscenity and accused the Society of having betrayed Sir Derek’s trust out of greed, and having rode roughshod over his body in order to suit itself, and ultimately the Society (through Professor Ledwith, its President, and Dr Inch, its Secretary General) accepted that it had agreed to the proposal without having taken her views into account.
12. Mr Tod and Lady Barton then took advice from Brown McCarroll & Oaks Hartline, lawyers in Houston, Texas. They advised that under Texas law, and notwithstanding the reference to English law in the will, the Deed of Variation was not effective to modify the will because there is a rule in Texas that a trust cannot be terminated prematurely if the trust still has a purpose to be accomplished.
13. Lady Barton has made it clear that she would take no part in any English proceedings, and will not co-operate in giving effect to the Deed of Variation. These are proceedings by Mr Tod as one of the executors and trustees for directions in relation to the validity and effect of the Deed of Variation. Although in her Acknowledgment of Service Lady Barton has stated that she does not intend to contest the claim, she has told Mr Tod that if the Court considers the Deed to be valid, it must either remove her as a trustee or make an Order confirming that payment can be made without her consent.
14. The principal question of law for determination is whether English law or Texas law applies to the validity and effect of the Deed of Variation, although there are subsidiary issues which go to the adequacy, admissibility and effect of the evidence of Texas law. Among the questions involved are whether the issues relate to a matter of succession law or trust law, and the application and interpretation of the Hague Convention on the Law Applicable to Trusts and their Recognition, 1985.

III The Will and the Deed of Variation

15. Sir Derek had made a will in 1983 when he was married to his second wife. The idea that William Barton should not receive any income from the estate until he was 65 appears to have emerged for the first time in 1994. On October 12, 1994 Sir Derek wrote to Mr Tod to say that his son had been born with an impaired vision in one eye. He went on:-

“He should certainly not receive any money before he reaches that age [65]. I do not think that we need to consider inflation. My son is not poor and he has his own business”.

16. Clause 1 of the Will was:

“I DECLARE that this my Will shall take effect in accordance with English Law.”

Lady Barton and Mr Tod were appointed to be executors and trustees of the Will by clause 2, and after the legacies to which I have referred, the residuary estate and the income was to be held by the trustees on the following trusts:

“7. MY TRUSTEES shall hold the Trust Fund UPON the trusts following that is to say:-

(a) Until the Specified Date (as defined in clause 8 hereof) my Trustees shall accumulate all the income of the Trust Fund by investing the same in any investments hereinafter authorised and adding the same to the capital of the Trust Fund

(b) After the Specified Date my Trustees shall pay an annuity of £20,000 per annum to my son the said William Godfrey Lukes Barton during his life to be paid free of all deductions including Income Tax at the basic rate by equal quarterly payments in arrears the first payment to be made at the end of three months after the Specified Date

(c) Subject thereto my Trustee shall hold the Trust Fun and the income thereof upon trust for the Royal Chemical Society (London) (hereinafter called ‘the Society’) for charitable purposes as are more specifically set out in clause 10 hereof

8. THE expression ‘the Specified Date’ shall mean the date of my death or (if later) whichever is earlier of the date that my said son William Godfrey Lukes Barton shall attain the age of sixty-five years or the date when my Trustees shall declare in writing that in their opinion my said son is permanently blind.

9. MY TRUSTEES may provide for the payment of the annuity given to my son in clause 7(b) of this my Will at their discretion at any time by setting apart and appropriating out of the Trust Fund such investments of any nature hereby authorised as shall in their opinion be sufficient by the income thereof to answer the annuity and after such appropriation the annuity shall be wholly charged on the investments so appropriated (hereinafter called the Annuity Fund) in exoneration of the rest of the Trust Fund but resort may be had to the capital of the Annuity Fund in case at any time the income thereof is insufficient to pay the annuity and when the annuity ceases the Annuity Fund shall revert to and form part of the Trust Fund and in the meantime any surplus income arising therefrom after payment of the annuity shall be applied as income of the Trust Fund.”

17. The Will was in English form. It defined the personal chattels given to Lady Barton by reference to the Administration of Estates Act 1925, and limited the use of the trust fund given to the Society by clause 7(c) to the advancement of public education in the field of chemistry “in so far as the same is charitable in accordance with the Law of England”: clause 10.
18. The Deed of Variation of March 14, 2000 recited the Will and its dispositions under clause 7 and clause 10, and that the Society and William Barton had agreed to vary the dispositions of Sir Derek’s estate effected by the Will in the manner appearing. It provided:-

“The Royal Society and Mr Barton hereby agree that the dispositions of the Testator’s estate effected by the Will shall be varied so that the Trust Fund shall devolve and shall be deemed to have devolved with effect from the Testator’s death and shall be administered and distributed as if:

(1) clauses 7 8 and 9 of the Will were omitted therefrom:

(2) the Testator had by the Will directed that the Trust Fund be distributed as to the assets set out in the Schedule hereto [i.e. £164,000 cash] to Mr Barton for his own use and benefit absolutely and as to the remaining part thereof to the Royal Society for charitable purposes as are more specifically set out in clause 10 of the Will; ...”

IV Texas law

19. The material on Texas law consists of correspondence between Mr Tod and various members of the firm of Brown McCarroll & Oaks Hartline, lawyers in Houston, Texas, which was exhibited to a witness statement by Mr Tod in June 2001. Evidence was served on behalf of William Barton in August 2001, and on behalf of the Society in October 2001. They did not adduce evidence of Texas law. The evidence for the Society was that it had been advised that Texas law was not relevant to the validity of the Deed of Variation, and that it had so informed Mr Tod by letter of February 20, 2001. Master Bragge gave directions on October 18, 2001 for trial, but those advising Mr Tod did not seek permission to put in expert evidence pursuant to CPR, r.35.4, and the material on Texas law is not in the form of a written report, and it does not therefore comply with the requirements of CPR, r.35.5 and of paragraph 1 of the Practice Direction.
20. The material consists of letters by Mr Daly and Mr Nemeth, who are partners, and a memorandum by Mr Morrison, an associate (equivalent to an assistant solicitor). Mr Daly and Mr Morrison, according to the firm’s promotional literature, specialise in estate administration and planning, and Mr Nemeth specialises in what would be described in England as commercial property law, securitisation and loan refinancing.
21. The broad effect of their advice was as follows: (a) Under Texas law trusts may only be judicially terminated or modified if the purposes of the trust have been fulfilled or have become illegal or impossible to fulfil; or, because of circumstances not known to or anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of the purposes of the trust; (b) beneficiaries of a trust can consent to its termination only where all purposes of the trust have been accomplished; (c) consequently, if a trust still has a purpose to fulfil, a court may not terminate a trust notwithstanding the consent of all the beneficiaries; (d) in the circumstances of this case the application of the rule would flow from a strong Texas policy that favoured interpretation of wills in such a way as to uphold the last wishes of the testator; (e) under Texas law a will can only be amended by a codicil, and the Deed of Variation is not effective as a modification or amendment of the Will.
22. The material on Texas law has been presented in a diffuse way, lacks precision, and some of it is speculative in nature. The main authorities relied upon for the proposition that Texas law prevents the premature termination of a trust unless its material purposes have been accomplished are: section 112.054 of the Texas Trust Code; the decision of the Massachusetts Supreme Court in Claflin v. Claflin, 20 N.E. 454 (Mass. 1889) and the decision in Texas which applies it, Lanius v. Fletcher, 101 S.W. 1076 (Tex. 1907).
23. Section 112.054 deals with applications to the court by a trustee or beneficiary for (inter alia) modification of the terms, or termination, of a trust, and gives the court jurisdiction to do so if (1) the purposes of the trust have been fulfilled or have become illegal or impossible to fulfil; or (2) because of circumstances not known to or anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of the purpose of the trust. Mr Nemeth accepts that this is dealing with judicial termination or modification, and does not directly answer the question whether the beneficiaries may by agreement put an end to the trust, as they can in England under the rule in Saunders v. Vautier.
24. It would seem, however, from the fact that Texas courts apply the decision in Caflin v. Caflin (in which Saunders v. Vautier was cited but not applied) and from Frost National Bank v. Newton, 554 S.W. 2d 149 (Tex. 1977) that under Texas law beneficiaries under a trust created by will cannot put an end to it, even if there is only one beneficiary or even if all of several beneficiaries consent. But it is equally clear from Lanius v. Fletcher that the rule is one which is not so strongly rooted in policy that it must always be applied in Texas irrespective of the foreign elements: in that case the testatrix was domiciled in Illinois, under whose law her daughter could terminate the trust created by the will. The trustee and most of the trust property were in Texas. It was held that Texas law should be applied to prevent termination on the ground that the testatrix intended that the trust should be conducted and executed in Texas.
25. There was also evidence on Texas rules of the conflict of laws, but it is accepted for Mr Tod that Texas rules of the conflict of laws are irrelevant for present purposes, except perhaps to the extent that they may shed light on the strength of the policy of Texas law that the testator’s intentions must be given primacy over a beneficiary’s power to terminate a trust. It is apparent from Lanius v. Fletcher, 101 S.W. 1076 (Tex. 1907) that termination would have been possible even in relation to assets in Texas if the trust had been governed by Illinois law. The rule is not therefore one which is applied in Texas as a matter of public policy.
26. Although the evidence is in a very unsatisfactory state, the next section of this judgment proceeds on the basis that under English law the Deed of Variation is valid and effective, but that under Texas domestic law a will trust cannot be modified or terminated even with the consent of all the beneficiaries.

V Applicable law

27. Mr Tod claims to be neutral, but says that it is his duty to put before the Court such arguments as he is able in support of the case against the validity of the Deed of Variation. Accordingly, what is said on his behalf is this: (a) the express choice of English law cannot be taken to have been intended by Sir Derek to have applied to the trusts, because of its repugnancy to his specific purposes and intentions, and in such circumstances Article 6 of the Hague Convention will allow an examination of the circumstances of the case in order to imply a choice of Texan law; (b) the choice of English law is impermissible as being in specific contravention of Texas law as the law of Sir Derek’s domicile, to which the choice of law rules of the Hague Convention must defer under Article 15.
28. It is true that the material or essential validity of a will in so far as it relates to movables is governed by the law of the testator’s domicile at death: see authorities in Dicey and Morris, Conflict of Laws, 13^th ed. 2000, p.1036, n.68. Questions of administration are governed by the law of the country from which the administrators derive their authority (ibid. p.1016). It is not always easy to distinguish rules of succession from rules of administration: see Dicey and Morris, p.1017 and International Trust Laws, ed. Glasson, Chap. 3, para. C3.62 (by Professor Hayton).
29. But here there is no issue as to the validity of the Will, or any disposition in it. The issue is the applicability of the rule in Saunders v. Vautier to a will trust. The questions are whether the Deed of Variation is valid and effective to vary the dispositions under the Will, and what law applies to determine its validity and effectiveness. Although the Deed may take effect as a contract the applicable law is not determined by the Contracts (Applicable Law) Act 1990, which gives effect to the Rome Convention of 1980 on the Law applicable to Contractual Obligations. Article 1(2)(b) of the Rome Convention excludes from its operation contractual obligations relating to wills and succession. This provision was inserted in the Rome Convention because (among other reasons) work was proceeding at the Hague Conference on Private International Law on conventions on the law applicable to succession and to validity and recognition of trusts.
30. The Hague Convention on the Law Applicable to Trusts and on their Recognition, 1985, was ratified by the United Kingdom in 1987, and is given effect by the Recognition of Trusts Act 1987, section 1(1) of which provides that the provisions of the Convention which are scheduled to the Act shall have the force of law in the United Kingdom. The final draft Convention adopted at the Hague Conference in 1984 was the subject of an explanatory report by Professor von Overbeck, of Switzerland. If there were any ambiguity in the Convention I have no doubt that resort could be had to the Report (which superseded his previous report as rapporteur to the Special Commission’s first draft) either as an essential part of the travaux preparatoires or because of Professor von Overbeck’s standing in the field of private international law.
31. The following provisions of the Hague Convention deal with its scope so far as concerns this case. It specifies the law applicable to trusts (Article 1), and defines “trusts” for the purposes of the Convention as (Article 2, para. 1)

“the legal relationship created – inter vivos or on death – by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose.”

But it does not apply to preliminary issues relating to the validity of wills or of other acts by virtue of which assets are transferred to the trustee (Article 4). This is a case of a trust created on death, and a case in which there is no issue as to the validity of the will or the transfer of the assets to the trustees. Consequently the Convention applies.

32. By Article 6, para. 1:

“A trust shall be governed by the law chosen by the settlor. The choice must be express or be implied in the terms of the instrument creating or the writing evidencing the trust, interpreted, if necessary, in the light of the circumstances of the case.”

33. It was ultimately conceded by Mr Studer that Article 6 contemplates only two situations. The first is an express choice, and the second is an implied choice. It is only when determining whether there is an implied choice that resort may be had to the circumstances of the case. In my judgment this is clear from the wording of Article 6, but the French text is absolutely clear in this sense, and Professor von Overbeck's report, para 64, is in the same sense.
34. The words of Sir Derek were: “I DECLARE that this my Will shall take effect in accordance with English Law.” Not all aspects of a will can be subject to a choice of law. Thus the testator cannot effectively provide in English law that questions of succession, such as indefeasible rights which children may have under the law of the domicile at death, shall be governed by a law other than that of the domicile. But in my judgment the expression “shall take effect” made it clear that this was an express choice of law by the testator in relation to such aspects of the Will as are subject to the testator’s choice, and by Article 6 of the Hague Convention the trust is governed by that law. It was suggested on behalf of Mr Tod that the choice of law should be disregarded, or at any rate not apply to the question whether the beneficiaries could modify or terminate the trust, because it was repugnant to Sir Derek’s expressed intention that William Barton would not receive anything before he was 65, and Sir Derek cannot be taken to have intended that William Barton and the Society should have been free to subvert his purposes; that by necessary implication he must be taken to have selected the law of Texas as the law applicable to the question whether William Barton and the Society might properly combine to defeat his express purpose under clauses 7 to 9; that question was one of administration of the trust rather than of its material or essential validity, and the central importance of the trust provisions was such that Sir Derek cannot be taken to have selected English law to govern it, at least to the extent that such law would permit the trust to be terminated whilst its purposes were still unaccomplished.
35. There is no legal basis for this argument. The express choice of law cannot be impugned. The argument amounts to no more than that, notwithstanding the express choice of law, it does not in fact govern the whole instrument, and in particular does not apply to the trust (or, perhaps, to the question whether the beneficiaries may put an end to it). Article 9 does provide that a severable aspect of the trust, particularly matters of administration, may be governed by a different law. Here Sir Derek expressed the wish that his Will should take effect in accordance with English law. There is no process of interpretation by which that expression could be interpreted to exclude the trust provisions, still less any particular aspect of the trust relations. There is no conflict between the choice of law and the other terms of the Will. It is not possible to take into account extrinsic evidence to suggest that the choice of law does not mean what it says. None of the conditions in the Administration of Justice Act 1982, section 21, applies. The choice of law is not meaningless, or ambiguous on its face, or in the light of admissible surrounding circumstances. Nor is there any reason to believe that an application for rectification under section 20 could have been made on the basis that Sir Derek’s instructions had not been carried out. In all systems of law documents such as contracts or wills may have effects which are unknown to the parties, and which may not fully effectuate their intentions. It is possible that Sir Derek may not have not foreseen that Lady Barton would have to share the proceeds of the Antibes flat with William Barton, or that William Barton would obtain capital now instead of an annuity at 65. It is also possible that he was not fully advised on the effectiveness of the provisions, but even if there were evidence to that effect it would not be admissible or relevant to any issue before the court.
36. Even had there been no express choice of English law, or if the express choice had not extended to clauses 7 to 9 of the Will, in any event the terms of the Will itself, particularly the reference to charitable trusts under English law, would have pointed to an implied choice of English law. Even if there had been no express or implied choice under Article 6, the trust would have been governed by English law as the law with which it was most closely connected under Article 7. By Article 7, in ascertaining the law with which a trust is most closely connected, reference shall be made in particular to a number of matters including the situs and assets of the trust, the residence of the trustee, and the objects of the trust and the places where they are to be fulfilled. The situs of the assets and the place where the trusts were to be fulfilled were in England, as was the residence of one of the trustees, and the fact that the testator, Sir Derek, and one of the trustees, Lady Barton, were resident and domiciled in Texas would not have displaced English law as the law with which the trust was most closely connected. I do not consider that the existence of the rule in Saunders v. Vautier in English law militates against an implied selection of English law, or against English law being the law with the closest connection.
37. By Article 8 the law specified by Article 6 or Article 7 governs the validity of the trust, its construction, its effects and the administration of the trust. In particular that law is expressed to govern the following (among other) matters: (1) restrictions upon the duration of the trust, and upon the power to accumulate the income of the trust; (2) the variation or termination of the trust; and (3) the distribution of the trust assets.
38. Consequently the combined effect of Articles 6 and 8 in this case is that English law governs questions relating to the duration of the trust, accumulation of income, variation and termination of the trust and distribution of assets. It follows that the Convention assigns to English law the question of the ability of the beneficiaries to end or reconstitute the trust, and there is no doubt that English law (the rule in Saunders v. Vautier) allows the beneficiaries to do so. Lewin, Trusts, 17^th ed. 2000, para 11-40, says that Article 8 “probably” refers this question to the governing law, but in my judgment there can be no doubt. The Society and William Barton have executed the Deed of Variation, which is a valid document in English law, and which is undoubtedly governed by English law. It is made between English parties in relation to English assets and varies a trust governed by English law.
39. For the second limb of the argument Mr Studer relies on Article 15, which provides:

“The Convention does not prevent the application of provisions of the law designated by the conflicts rules of the forum, in so far as those provisions cannot be derogated from by voluntary act, relating in particular to the following matters—

...

(c) succession rights, testate and intestate, especially the indefeasible share of spouses and relatives;

...

If recognition of a trust is prevented by application of the preceding paragraph, the court shall try to give effect to the objects of the trusts by other means.”

40. Section 1(3) of the 1987 Act gives mandatory effect to Article 15 by providing that, in accordance with Article 15 (and Article 16, which is not material in the present case) “such provisions of the law as are there mentioned shall, to the extent there specified, apply to the exclusion of the other provisions of the Convention.”
41. Mr Studer’s argument is that Article 15 requires the court to apply the conflict of laws rules relating to succession, so that the law of Texas, as the law of Sir Derek’s domicile at death, will apply. Article 15 requires the court to give effect, by specific example, to forced heirship provisions which apply as a result of the law applicable to succession rights. The limitations on William Barton’s rights under the will are a similar case, and are accordingly provisions which “cannot be derogated from by voluntary act” for the purposes of Article 15 of the Convention. It is submitted that such provisions are merely the obverse of forced heirship provisions, in that they enforce the succession which has been prescribed by the testator. They too therefore fall to be referred to the provisions of the law designated by the conflicts rules of the forum for questions of material or essential validity. The combined effect of section 1(3) of the 1987 Act and Article 15 of the Convention is thus to refer the validity of any attempted defeasance of the residuary trust to the law of Sir Derek’s domicile i.e. Texas.
42. In my judgment this argument cannot be accepted. The purpose of Article 15 is to preserve the mandatory effect of the rules of the law designated by the conflict of laws rules for matter other than trusts. An example of such a rule is the rule that matters of succession to personal property are governed by the law of the testator’s domicile at death. If he is domiciled in a country which gives indefeasible rights of succession to children, then the relevant rules of the country must be given effect notwithstanding the creation of a trust which purports to override those rights. But in this case there is an insuperable hurdle to the application of Article 15. The only possibly relevant reference to Texas law which is required by the English rules of the conflict of laws is to Texas law as the domicile of Sir Derek to determine the essential validity of the Will. By that law the Will is valid. All of the provisions of the Will have been carried into effect, and in the circumstances of this case no rule of the English conflict of laws refers the validity of the Deed of Variation to Texas law, or permits or requires the application of the rule which rejects Saunders v. Vautier in the present context.

VI Conclusions

43. Consequently, in my judgment English law applies to the validity of the Deed of Variation, and there is no suggestion that it is not valid under English law. Lady Barton has made it clear that she will not co-operate to give effect to it. If the form of order cannot be agreed, I will hear argument, together with any other matters which arise, including costs.

Note 1   Nothing turns on the fact that there was a potential conflict between the two wills, each of which applied to property in North America outside the United States, since Sir Derek did not have property in Canada or Mexico.     [Back]

Note 2   Because of the forced heirship provisions of French law, Lady Barton and William Barton have shared the proceeds of Sir Derek’s flat in France.    [Back]

Note 3   Or, if earlier, the date when the Trustees declared in writing that in their opinion William Barton was permanently blind. William Barton has a visual impairment in one eye.    [Back]

Note 4   (1841) 4 Beav. 115, affd. Cr. & Ph. 240.    [Back]