Jersey Unreported Judgments

Probate - application to admit a will to probate

[2021]JRC294

Royal Court

(Samedi)

22 November 2021

IN THE MATTER OF THE REPRESENTATION OF ESME CATHERINE GERALDINE TREMLETT AND JAMES GERALD DANIEL TREMLETT

AND IN THE MATTER OF THE ESTATE OF THE LATE JUSTINE ANNE GARALDINE TREMLETT (NEE HARRIS)

Advocate A. C. M. Pinel for the Representors.

judgment

the COMMISSIONER:

1.        The Representors, who are the two children of the late Justine Anne Geraldine Tremlett (née Harris) who died on the 1^st August 2019 ("the Deceased"), applied for an order that the Registrar admit to probate the will of the Deceased dated 2^nd April 2019 ("the 2019 Will"). 

2.        The Deceased died domiciled and resident in England.  The death certificate shows that she was born in the Republic of Ireland on 12^th May 1951, which would have constituted her domicile of origin.  It would seem that some time after 2016, she moved to Coventry in England, where she acquired a domicile of choice.

3.        The 2019 Will was admitted to probate in the High Court of Justice, England and Wales, Brighton District Probate Registry on 26^th June 2020.  In addition to assets in England, the Deceased also left assets in Ireland and in Jersey, where there are a number of bank accounts and bonds.

4.        The problem arises in this way.  The Deceased executed an earlier will when living in Ireland, dated 20^th December 2016 ("the 2016 Will") revoking all previous wills.  The 2016 Will extended to her world-wide estate, and in it, she left each of her grandchildren a cash sum equivalent to the maximum threshold that is free from any charge to tax, and the residue to the Representors in equal shares. 

5.        The 2019 Will has this revocation clause:

"I revoke all former wills and testamentary dispositions made by me in England or Wales".

6.        The 2019 Will goes on, however, to dispose of all of her real and personal estate "whatsoever and wheresoever".  In it, she leaves £10,000 to each of two great nephews and a great niece and the rest or residue on trust as to 15% to her grandchildren in equal shares and the remaining 84% to the Representors in equal shares or failing them, to their respective partner/wife with gifts over.  It would seem that the draftsman was somewhat mathematically challenged in that in what can only be an error there is 1% unaccounted for.

7.        The issue, therefore, is whether the 2019 Will revoked the 2016 Will.  It is well established that the material or essential validity of a will of movables is governed by the law of the testator's domicile at the date of her death (see In the matter of Hawksford Executors Limited  [2013] JRC 188 at paragraphs 19-20).  However, it is also well established that the aid of private international law is unnecessary where the intention of the testatrix is expressed in a manner which leaves no room for doubt (see paragraph 21 of Hawksford).

8.        In the Court's view, on the face of the two wills, there is no doubt that the Deceased intended to revoke the 2016 Will for the following reasons:

(i)        The 2019 Will expressly extends to all of her property wheresoever situated, so that she clearly intended the 2019 Will to govern the disposal of all of her property, wherever situated, specifically including any property in Ireland and Jersey.

(ii)       For that intention of the Deceased to be given effect, she must have intended to revoke the 2016 Will.

(iii)      Apart from the bequest to the great nephews and great niece in the 2019 Will, in both wills she leaves her estate effectively to the Representors as her two children and to her grandchildren.  If the 2016 Will was not revoked, we would be left in a confused situation in which there would be two wills which on their face purported to dispose of her world-wide estate essentially to the same beneficiaries.  That cannot have been her intention.  Common sense dictates that it is the 2019 Will she intended to govern her estate wherever situated.

(iv)      The revocation clause refers to all former wills made in England or Wales, without specifying what part of her estate any such former wills may have covered.  If the 2019 Will was intended to extend only to her estate in England or Wales, leaving the 2016 Will to govern her estate outside England or Wales, then it would have to have contained express wording to that effect, and there is no such express wording.

For all these reasons and by necessary implication, the 2019 Will revoked the 2016 Will.

9.        We do not have an affidavit of English law, but we note the following which supports that interpretation:

(i)        We were informed that the Deceased had never previously made wills in England or Wales.

(ii)       We have an affidavit from the solicitor who acted for the Deceased in Coventry and who drafted and dealt with the execution of the 2019 Will.  In that affidavit, she deposes that it was the intention for the 2019 Will to deal with all of the assets of the Deceased.  The solicitor had been advised by the Deceased that she was in the process of calling in all of her assets outside England and Wales, with a view to all of her assets being situated in England and Wales, and for her entire estate, therefore, to be administered in England.  She died some three months later before this could be done.

(iii)      The Brighton Registry has a copy of the 2016 Will on file, which they have stated need not be proved, as they have proved the later 2019 Will.  Accordingly, the English Court had no issue in proving the 2019 Will.

(iv)      The beneficiaries of the residual estate under the 2019 Will have entered into a deed of variation on 23^rd May 2020, varying the percentages in which the residual estate is divided between the Representors and the grandchildren and correcting the missing 1%.

(v)       The great nephews and great niece do not benefit at all under the 2016 Will.  The grandchildren receive more under the 2019 Will than under the 2016 Will.  The only persons to be adversely affected, therefore, by the 2019 Will being proved are the Representors, as they receive less under the 2019 Will than they would have under the 2016 Will.

10.      In all the circumstances, the Court directed the Judicial Greffier to proceed to admit the 2019 Will to probate pursuant to Article 6(10) of the Probate (Jersey) Law 1998.

Authorities

In the matter of Hawksford Executors Limited [2013] JRC 188. 

Probate (Jersey) Law 1998