Jersey Unreported Judgments

Probate - reasons for finding the deceased did not intend to revoke her Will.

[2013]JRC188

Royal Court

(Samedi)

27 September 2013

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Morgan and Liston.

 

IN THE MATTER OF THE REPRESENTATION OF HAWKSFORD EXECUTORS LTD

Advocate K. O. Dixon for the Representors.

judgment

the commissioner:

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

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

7.        Each world-wide 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 Wills I may have made or may hereafter make relating to my estate situate in Belgium."

8.        The world-wide wills appointed G & S Executors Limited as executor and trustee.  Under the terms of each will, they left their Overseas Estate to each other and failing each other, to three charities, namely the Imperial Cancer Research Fund, the Royal Society for the Prevention of Cruelty to Animals and the Royal Air Force Benevolent Fund. 

9.        When sending them copies of the world-wide wills, Mr Cartwright stressed that they should be careful not to revoke them in error should they execute future wills relating to their estates in Belgium. 

10.      The world-wide wills came to be held by Galsworthy & Stones and there was ongoing correspondence from time to time with Mr Cartwright.  In a letter written to him dated 30^th May, 2003, the deceased informed him that she and her husband had made wills in Belgium.  She implied that those wills related exclusively to their estate in Belgium.  She enclosed financial information in relation to the Overseas Estate saying this:-

"There is some urgency in these documents being in safe hands as, to date, no one other than ourselves and Lloyds TSB, Jersey is aware that we possess them."

11.      In his letter of 16^th June, 2003, Mr Cartwright asked for express confirmation that their Belgium wills related exclusively to their estate in Belgium, which was given by the deceased in her reply of 8^th July, 2003, when she advised him:-

"Our wills dealing with our Belgian estate apply exclusively to this country - i.e. Belgium."

12.      Following the death of her husband, the deceased did not include the value of the Overseas Estate in the Belgian Inheritance Tax Return as a consequence of which, an amount of unpaid tax remains due and owing to the Belgian tax authorities with respect to his estate, together with a penalty and interest for late payment.  This omission on the part of the deceased would seem to be consistent with her objective of maintaining a separation between her assets in Belgium and her Overseas Estate. 

13.      The last communication by Mr Cartwright with the deceased was on 10^th April, 2007, when he confirmed her continuing instructions to him to retain in his firm's safe-keeping the financial documentation that had been enclosed with her letter of 30^th May, 2003. 

14.      After the death of the deceased on 7^th October, 2009, Mr Cartwright saw for the first time a copy of the holographic will made by the deceased on 14^th June, 2008, ("the Belgian will"). 

15.      The key provisions of the Belgian will are as follows:-

(i)        The second clause purports to revoke all former wills made by the deceased: "Je révoque toutes dispositions antérieures de dernière volonté". 

(ii)       In the third and fourth clauses, the deceased then sets out the property that she owns in Belgium: "Je suis propriétaire d'un appartement en Belgique à 1180 Uccle, Résidence du Parc Longchamp, rue Langeveld, 69/5 à 1180 Uccle" and "je suis titulaire de comptes chez la FORTIS Banque, avenue Montjois 33A, 1180 Uccle". 

(iii)      She names as her sole heirs eight beneficiaries comprising six individuals (her goddaughter and nephews and nieces of her late husband), the Belgian Alzheimer Foundation and the Anglican Holy Trinity Church Pro-Cathedral (in Belgium). 

16.      The Belgian will is drafted in almost identical terms to the provisions of the holograph will executed by her late husband on 13^th June, 2003, (with the same non substantive errors); the material difference between the two is that the references to the surviving spouse are omitted from the Belgian will as one would expect. 

17.      All eight beneficiaries of the Belgian will have confirmed in writing that they accept that when the deceased made the Belgian will she intended to have two separate wills and did not intend to revoke the world-wide will.  They confirmed that they would not contest or object to any application to the Court made by or for the benefit of the beneficiaries of the world-wide will which may be necessary to confirm that the deceased never intended to revoke the world-wide will. 

18.      In relation to private international law, the Jersey courts have consistently had regard to English common law (see The Origin and Development of Jersey Law; an outline guide by Stéphanie Nicolle, 5^th paragraph 15.33 (2005 edition)) and in particular to the rules in Dicey, Morris and Collins The Conflict of Laws. 

19.      The material or essential validity of a will of movables or of any particular gift of movables contained therein is governed by the law of the testator's domicile at the time of his death (see Rule 154 of Dicey 15^th Edition).  Rule 159 of Dicey provides:-

"Subject to the Exception hereinafter mentioned, the question whether a will has been revoked depends on the law of the testator's domicile at the date of the alleged act of revocation."

20.      The Exception is set out at Rule 159 27E-094 as follows:-

"If the alleged act of revocation is the execution of a later will or codicil, the question whether the later instrument revokes the first depends on whether the second instrument is valid in accordance with the foregoing Rules."

The following commentary is contained at 27-095:-

"A later will or codicil may revoke an earlier will either expressly or by implication.  It may do so expressly, as when the testator says in the later instrument "I hereby revoke all testamentary dispositions heretofore made by me".  In such a case it would seem obvious that the question whether the second instrument revokes the first should be determined by the intrinsic validity of the second will, and this in turn depends upon the Rules already laid down in this chapter, particularly Rule 151 (capacity) and Rules 152 and 153 (formal validity).  However, if one will deals only with property in a foreign country and is made in foreign form, and the other deals only with property in England, the later will does not necessarily revoke the earlier one even if it contains a revocation clause."

The last sentence, which is relevant to the facts here, cites the following authority:-

"223.   In the estate of Wayland [1951] 2 All E.R. 1041; Re Yahuda's Estate [1956] P.388; Guardian Trust and Executors Co of New Zealand Ltd-v-Darrock [1973] 2 N.Z.L.R. 143; Re Baldry (deceased) [2004] W.T.L.R. 609(Fam.); In the Estate of Vickers [2011] J.L.R. 712 (Royal Court of Jersey)."

21.      We will refer to some of those authorities shortly, but before doing so, the aid of private international law is unnecessary where the intention of the testator is expressed in a manner which leaves no room for doubt.  Quoting from Cheshire and North's Private International Law (11^th edition) page 844:-

"(iv)    Construction

The province of construction is to ascertain the expressed intentions of the testator, ie the meaning which the words of the will, when properly interpreted, convey.  If the intention is expressed in a manner that leaves no room for doubt, the aid of private international law is unnecessary, for the duty of any court, no matter in what country it may sit, is to give effect to the expressed intentions, and, these being clear, there can be no occasion to test the language of the will by reference to any particular legal system.  If, however, the language of the will leaves the intention doubtful, or if it uses expressions which are ambiguous or equivocal or if the testator has failed to provide for certain events which have not been covered by his dispositions, a problem of choice of law arises, for it is essential that the doubtful intention of the testator should be ascertained by reference to rules of construction obtaining in one particular system of law."

22.      In our view, it was clear from the face of the Belgian will that it extended only to the assets of the deceased in Belgium and that the revocation clause was limited to previous wills that the deceased may have made in relation to her Belgian assets.  We say this because the deceased sets out formally the assets in Belgium of which she is the owner and which it is clear she intended the will would govern and which would devolve upon the beneficiaries of the Belgian will.  If she had intended to revoke her world-wide will, then she would have listed her world-wide assets.  The extrinsic evidence is entirely supportive of this being her intention. 

23.      That sufficed, in our view, to dispose of the matter, but for completeness, we also invoked the aid of private international law.  In this we were assisted by and in this judgement have drawn from the affidavit of Mr Hewitt on English law both on the issue of domicile and on the issue of revocation. 

24.      The deceased was born with an English domicile of origin.  The English Court of Appeal has emphasised that "there is a strong line of case law, binding on this court, that the domicile of origin is tenacious" Barlow Clowes International Ltd-v-Henwood [2008] EWCA Civ 577.  Two elements must be present for a new domicile to be acquired and for the domicile of origin to be displaced:-

(i)        A person making the new country his "sole or chief residence"; and

(ii)       Doing so with the intention that it shall be such "permanently or indefinitely". 

25.      It is a question of fact whether someone's home is their main residence.  All the circumstances must be considered, such as the nature of the person's property in the country (whether it is owned outright or leased), the time spent in the country and the purposes of the visit etc.  However, the quality of the residence must also be of such a nature to support the choice to be there "indefinitely or permanently".  The intention, whilst stated as including the intention to remain "indefinitely", is commonly understood as meaning where a person intends to end their days.  This must be a firm and settled intention, not subject to equivocation, vacillation or repeated changes (Re Clore [1984] S.T.C. 609). 

26.      The person's intention will be viewed on all available facts up to and including where the person died and their reason for being there.  It is only upon reviewing all those facts that one may take a view on their domicile. 

27.      Long residence may be a factor in determining domicile, but it is not in itself sufficient to create a domicile of choice. 

28.      There is a presumption against a change of domicile and the burden of proving any change of domicile rests upon the person alleging it (Munro-v-Munro [1840] 7 Cl & Fin 842 at 891).  A domicile of choice is difficult to establish and "will not be lightly inferred" or established from scant evidence - it must be clearly and unequivocally proved (Re Fuld's Estate (No 3), Hartley-v-Fuld [1968] P 685 at 685-686).  The evidence must establish a "singular and distinctive relationship with the new country" (Henwood-v-Barlow Clowes International Ltd [2008] ewca Civ 577).  As Lord Macnaughten said in Winans-v Attorney-General [1904] AC 287 at 290:-

"Domicil of origin, or as it is sometimes called, perhaps less accurately, 'domicil of birth' differs from domicil of choice mainly in this - that its character is more enduring, its hold stronger, and less easily shaken off."

29.      In Agulian-v-Cyganik [2006] EWCA Civ 129, at [46(1)], Mummery LJ said:-

"...the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death"

In Agulian the Court of Appeal held that a Cypriot man who had lived and worked in England from the age of 19 to his death at the age of 63 had not acquired a domicile of choice in England notwithstanding his some 44 years residence in England.  Mummery LJ said at [49]:-

"...the adhesiveness of the domicile of origin, the incidence of the burden of proof and the level of the standard of proof all require the person contending for domicile of choice to establish a clear case that Andreas intended to live permanently or indefinitely in England."

It is clear from Agulian that the fact that an individual has been a resident for many years and has died in a particular jurisdiction will not necessarily mean that he or she has adopted a domicile of choice in that jurisdiction. 

30.      The evidence as to the domicile of the deceased can be summarised as follows:-

(i)        The deceased moved with her late husband to Belgium for reasons of his work with Euro Control. 

(ii)       She retained her British passport and at no point acquired a Belgian passport. 

(iii)      She has retained the vast majority of her assets in Pounds Sterling denominated investments and bank accounts in several Anglophone jurisdictions. 

(iv)      Despite moving to Belgium and having lived there for a number of years, it would appear from the linguistic errors in the deceased's Belgian will, which is handwritten in French, that she had not at any point during that time gained a command of the local language. 

(v)       The deceased and her late husband maintained friends in the United Kingdom and made frequent and numerous visits to the United Kingdom throughout their period of residence in Belgium. 

(vi)      The friends of the deceased and her late husband in Belgium were British expatriates, such as the parents of Mr Blackwell.  Rather than adopt the culture of Belgium, the deceased and her late husband remained "expats abroad".  Indeed, in a letter of 30^th May, 2003, to Mr Cartwright, she refers to herself and her late husband as "expatriates living in Belgium".  According to Mr Blackwell, they had few Belgian friends. 

(vii)     The deceased was a member of the British and Commonwealth Women's Club of Brussels and she, along with her late husband, maintained an affiliation with the RAF Club in London, a prestigious social club open only to present and former serving officers in the RAF and their spouses, widows or widowers. 

(viii)    The husband of the deceased was a high-ranking officer who maintained strong connections with the RAF, an institution that is uniquely British and he and the deceased were members of the Brussels Royal Air Force Association.  It is this connection to the RAF that it would appear led to the deceased and her late husband wishing that on the death of the survivor of them one third of their world-wide assets would go to the RAF Benevolent Fund, a UK charity dedicated to the "support and assistance of the men, women and children of the RAF family". 

(ix)      They attended the Anglican Holy Trinity Church Pro-Cathedral, a beneficiary of the Belgian will, which is attended by and supported by many British expatriates living in Brussels. 

31.      On the evidence filed with the Court, we concluded that, as submitted by Mr Dixon, there was insufficient evidence, despite the long residence of the deceased in Belgium, that she had broken free from the tenacious hold of her domicile of origin and acquired a domicile of choice in Belgium.  We found, therefore, that the deceased was domiciled in England at the date of the alleged act of revocation, namely 14^th June, 2008, when the Belgian will was executed and at the date of her death on 7^th October, 2009, and therefore that English law governs the issue of whether the Belgian will revoked the world-wide will. 

32.      Where there is an express revocation clause, this will generally be a strong indication that the testator intended to revoke all previous testamentary instruments, but there are three situations in which the previous will shall not be revoked by the revocation clause:-

(i)        Where a contrary intention can be proved. 

(ii)       Where the revocation clause was inserted by mistake; or

(iii)      Where the doctrine of dependent relative revocation applies. 

The doctrine of dependent relative revocation is not relevant in the present case. 

33.      Dempsey-v-Lawson [1876-77] LR 2PD 98 at 107 established that:-

"Even if the second instrument contains a general revocatory clause, that is not conclusive, and the Court will, notwithstanding, consider whether it was in the intention of the Testator to revoke a bequest contained in a previous Will."

The English courts are, therefore, prepared to look beyond the will itself to all the surrounding circumstances, if there is evidence of a contrary intention to that expressed by a revocation clause in the later will. 

34.      In Re Wayland's Estate, a British man domiciled in England made two wills in Brussels in April 1947 in accordance with Belgian law and expressed to deal only with his Belgian property.  In July 1949, he made a will which referred to his property in England but also contained a general revocation clause.  It was held that the testator had no intention by this clause of revoking his previous Belgian wills; the revocation clause was effective only to revoke his previous English will.  It was noted by Pearce J that:-

"By a letter of 10 August 1949, shortly after the execution of the English will, he wrote to his Belgian lawyer saying: 'I note you will take charge of my will which Collette drew out for me' - i.e., his original Belgian will.  When he was giving instruction in England for his English will his solicitor asked him what should be done about the Belgian estate.  He answered: "Don't worry about that. My Belgian lawyer will take care of it as I have made a Belgian will.'  It is clear to me from those circumstances that the testator was unaware that the revocation clause in his English will might operate to revoke the Belgian wills and that he did not intend it to do so."

35.      In considering the intention of the testator, it is permissible under English law to consider declarations which he made, even though they do not form part of the will (Clarke-v-Scripps [1852] 2 Rob Eccl. 563).  The whole or part of a revocation clause in a will is to be omitted from probate if there is no intention to revoke.  This is illustrated in Re Morris, Lloyds Bank Ltd-v-Peake [1970] 2 WLR 865 and a further example is provided by Re Phelan [1972] Fam 33.  In Re Morris, it was held that even when it was proved that a will had been read over to or by a capable testator and he then executed it, prima facie, the inference would be that the testator knew and approved the contents, but that the court was not precluded from considering all the evidence to arrive at the truth, even if fraud was not suggested, and it was only a case of a simple mistake.  Although the testatrix in that case had capacity, did read the codicil which included the revocation clause and did duly execute it, it was clear from the evidence that she did not in fact know and approve of its contents.  The court was able to get nearest to giving effect to the testatrix's dispositive intentions by admitting the codicil to probate with the omission of part of the revocation clause which referred to that part of the previous will which was not intended to be revoked.  

36.      In Re Phelan, the deceased made a will leaving all his property to the people with whom he lodged.  He then appears to have been advised that separate holdings of shares had to be dealt with by separate wills.  He therefore acquired three wills and left each of his three blocks of shares to his landlord and landlady.  The wills were all executed on the same day.  However, the forms contained revocation clauses purporting to revoke all previous wills.  It was held that the surrounding facts showed that the deceased did not know and approve of the contents of the wills so far as they related to revocation and the three wills were therefore admitted to probate with the revocation clauses omitted. 

37.      Re Phelan was applied by this Court in the case of Re the Estate of Vickers [2001] JLR 712.  The testatrix had property in a number of jurisdictions.  Although she had resided in Portugal for a number of years, her domicile was England.  She made a will, in English form, which was expressed to revoke all previous wills "except in so far as they relate to property situate in Portugal and New Zealand".  That will disposed of her property in all the rest of the world, including England and Jersey.  She subsequently made a will to deal with her property situate in New Zealand.  The 'New Zealand Will' stated that it revoked "all earlier wills made by me".  The question before this Court was whether the revocation in the New Zealand will revoked the earlier English form will. 

38.      Hamon, Commissioner, referred to Williams on Wills as applying guidance to the question as follows:-

"An express clause of revocation is not essential but, if inserted in general terms, may operate to revoke all testamentary instruments previously executed including testamentary appointments.  Such a clause is not, however, conclusive, for it may be shown that it was inserted by mistake and without approval of the testator; or the two wills may be dealing with property in different jurisdictions."

39.      Applying Re Phelan, the Court in Re Vickers held that neither of the later wills dealing solely with the testatrix's property situate in New Zealand intended to revoke (despite the wording in the New Zealand will) the earlier English form will dealing with the world-wide property other than that in New Zealand and Portugal.  It was held that all three wills should stand separately. 

40.      Applying English law to the facts of the case before us, we found, perhaps not surprisingly, that there was strong and compelling evidence to indicate that the deceased did not intend to revoke her world-wide will when she made the Belgian will:-

(i)        First and foremost, as we have said earlier, the deceased set out formally in her Belgian will the assets in Belgium of which she was the owner and which it is clear she intended would devolve upon the beneficiaries of the Belgian will.  If she had intended to revoke her world-wide will, then she would have listed her world-wide assets. 

(ii)       By the terms of the world-wide will, the deceased intended to separate her Overseas Estate from her Belgian assets and conducted herself, in particular in her correspondence with Mr Cartwright, in a manner which was entirely consistent with that intention. 

(iii)      In his letter of 16^th June, 2003, Mr Cartwright reminded her of the importance of ensuring that any will executed in Belgium did not annul or cancel the world-wide will.  She responded some two weeks later on 8^th July, 2003, confirming that the Belgian wills applied exclusively to Belgium, which is clear evidence that she did not consider the revocation clause as revoking the world-wide will. 

(iv)      Having liaised with Mr Cartwright over the years and entrusted him with the relevant financial documentation concerning the Overseas Estate, it is inconceivable that she would have failed to mention to him that she had revoked the world-wide will by her Belgian will, thus bringing to a close the careful separation she had maintained in relation to her Belgian assets and her Overseas Estate. 

(v)       If the revocation clause in the Belgian will had been effective and revoked the world-wide will, then, the deceased would have either have died partially intestate as to her Overseas Estate or, if the Belgian will extends to the deceased's property outside of Belgian, have died testate.  In either of these events, this would have the result that the Overseas Estate would not pass to the three chosen charities. 

(vi)      Mr Blackwell, in his affidavit, says he is certain that the deceased intended to benefit the RAF and Alzheimer's charities on her death because her husband had been in the RAF and had suffered Alzheimer's in the last years of his life.  The RAF Benevolent Fund is only named as a beneficiary of the world-wide will and he firmly believes that the deceased did not intend to revoke it. 

41.      We had no difficulty in finding that the deceased did not intend to revoke her world-wide will when she made the Belgian will and we gave directions accordingly. 

Authorities

The Origin and Development of Jersey Law (2005 edition).

Dicey, Morris and Collins The Conflict of Laws.

Cheshire and North's Private International Law (11th edition).

Barlow Clowes International Ltd-v-Henwood [2008] EWCA Civ 577.

Re Clore [1984] S.T.C. 609.

Munro-v-Munro [1840] 7 Cl & Fin 842.

Re Fuld's Estate (No 3), Hartley-v-Fuld [1968] P 685.

Winans-v Attorney-General [1904] AC 287.

Agulian-v-Cyganik [2006] EWCA Civ 129.

Dempsey-v-Lawson [1876-77] LR 2PD 98.

Re Wayland's Estate.

Clarke-v-Scripps [1852] 2 Rob Eccl. 563.

Re Morris, Lloyds Bank Ltd-v-Peake [1970] 2 WLR 865.

Re Phelan [1972] Fam 33.

Re the Estate of Vickers [2001] JLR 712.

Williams on Wills.