When taking wills instructions, practitioners must ensure they ask clients if, for example, any of their beneficiaries live abroad; probe whether there are any cross-border assets they need to consider when drafting the terms of the will; and ask if any foreign will has been made.
But however diligent you are in advising on, and preparing a will with a cross-border element, problems can still arise after the client has died. For instance, if they add to their foreign property holdings or change ownership, but fail to review and update their will.
In a recent case1, the testator died in Australia (where he was domiciled) and left properties in Australia and in England, appointing his wife as the sole executrix. This meant the executrix needed to have the grant resealed so that she could deal with the UK property. The Colonial Probates Act 1892 provides for a foreign executor who was appointed by the will to have the grant resealed in England and Wales if the testator was domiciled abroad.
The two key issues for the Court of Appeal in this dispute were:
- Whether resealing of the grant was effective from the date of death, regardless of where the deceased was domiciled
- Whether the executrix had legal standing to bring proceedings when she did before the grant was resealed
What’s the background?
When he died in 2007, the testator had owned assets in Australia as well as a property in a village called Wales, near Sheffield. He had co-owned the Wales property with his brother and sister-in-law, who were the defendants in this case. The testatrix brought proceedings against them, seeking relief in respect of purported breaches of trust committed in connection with the property, relating to three transfers that had taken place.
At the time she issued proceedings (in February 2019), the testatrix had not yet had the grant from the Supreme Court of New South Wales resealed in England – in fact, it was not resealed by the High Court until November 2019.
The defendants tried – and failed – to have the case against them thrown out as being void and a nullity on the basis that the executrix had no legal standing. She argued that she did have legal standing even before the grant of probate was issued or resealed, regardless of where the testator was domicile.
The executrix also argued that resealing of the grant operates retrospectively, granting her title from the date of death.
The Court of Appeal ruled that the testatrix did have the required legal standing to deal with her late husband’s English assets at the date the claim was issued. At the date of his death, she had been appointed executrix by the will and had acquired title to the cause of action under English law from that date. New South Wales law on that point was immaterial.
This meant she did not have to wait until probate to issue her claim, although it was pointed out that the resealed grant would be necessary to prove her title by the time the case reached trial.
However, the court confirmed that in the case of an estate administrator, there is no legal standing to bring proceedings on behalf of the estate until they are granted letters of administration. This reflects the principle that an administrator does not have legal title to the estate until letters of administration are issued. If an administrator was to issue a claim before then, the proceedings would be dismissed as a nullity.
Does resealing have retrospective effect?
On this point, the court was not convinced. On a correct statutory interpretation of the 1982 Act, resealing of the grant did not operate retrospectively. For instance, on its natural reading nowhere does section 2 say or even imply that resealing is to have retrospective effect.
Practitioners may be interested in the court’s useful observations on whether the CPR 3.10 could be relied on to cure a nullity or irregularity. If it could, the effect would be to allow a claim to proceed following a subsequent amendment to the particulars of claim.
The appeal judges looked at the authorities on r3.10 and the nature of the wide discretion under the CPR. It concluded that the provision cannot be used to validate a nullity or, on other words - to create valid proceedings. CPR 3.10 applies to "an error of procedure such as a failure to comply with a rule or practice direction" – not to purported proceedings that should be regarded as a nullity.
The testatrix can now continue her breach of trust claim against the defendants. Private client practitioners will be awaiting the outcome with interest.
1Jennison v Jennison 2022 EWCA CIV 1682; Source: bailii.org