Christopher David Partington (Executor of the Will of Nicholas Martin Rossiter) v Olga Rossiter
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Green,Lord Justice Nugee |
| Judgment Date | 29 October 2021 |
| Neutral Citation | [2021] EWCA Civ 1564 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2021/0189 |
[2021] EWCA Civ 1564
Lord Justice Lewison
Lord Justice Green
and
Lord Justice Nugee
Case No: A3/2021/0189
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST
His Honour Judge Cadwallader (sitting as a Judge of the High Court)
PT-2016-MAN-000056
Royal Courts of Justice
Strand, London, WC2A 2LL
Faisal Saifee and Tracy Bird (instructed by Mergul Law) for the Appellant
Elis Meredydd Gomer (instructed by Slater Heelis Ltd) for the Respondent
Hearing date: 21 October 2021
Approved Judgment
Introduction
Mr Nicholas Rossiter died on 20 July 2018. At the date of his death he was domiciled in Russia, where Mrs Rossiter his widow lives, and where he had assets. Clause 1 of his will dated 13 June 2013 stated: “I confirm that this will only has effect in relation to my UK assets”. At the date of his death Mr Rossiter was entitled to assets located in Jersey. Two questions arise: (a) is the devolution of the Jersey assets governed by the will? (b) if not, should the will be rectified in order that it is? HHJ Cadwallader decided that the will did deal with the Jersey assets; and, in the alternative, that it should be rectified to have that effect.
If the will did not deal with the Jersey assets, there will be a partial intestacy. The assumed consequence of that will be that Mrs Rossiter will inherit them. If it did (or is rectified to have that effect) then the Jersey assets will fall into residue to which Mr Rossiter's children are entitled.
Having heard argument from Mr Saifee on behalf of Mrs Rossiter, we announced our decision to dismiss the appeal. These are my reasons for joining in that decision.
The facts
The will was drawn by Mr David Bevan, a solicitor with Slater Heelis, following instructions from Mr Rossiter. On 11 June 2013 Mr Rossiter sent Mr Bevan a draft will which he had prepared himself. Clause 3 of that document said:
“In my Will where the context so admits “my Estate” shall mean:
(a) My property in the UK
(b) Money and investments in the UK”
Clause 4 made provision for specific legacies. One related to a property in Cheshire; and another to the balance held in Mr Rossiter's name at a bank in St Helier, Jersey which was to be divided between his two children.
Mr Bevan replied on 11 June 2013. He said that the will would be straightforward and that “all your (UK) assets are to be shared equally” between the children. He added that “You do not need to refer to the various assets in your estate in the will”. He also advised that:
“If you own assets outside the UK you need a separate will in each of those countries and you should consult lawyers in that/those other countries to do that.”
On the following day Mr Bevan annotated that advice “correct and this is already in progress”. No will specifically dealing with the Jersey assets has ever been found.
As mentioned, clause 1 of the will as executed on 13 June 2013 stated: “I confirm that this will only has effect in relation to my UK assets”. It did not make provision for specific legacies. Instead, having made provision for the appointment of executors and the payment of liabilities, clause 3 (b) divided the residue of the estate equally between Mr Rossiter's two children.
On 27 April 2018, however, Mr Rossiter got in touch with Slater Heelis again. He said that he had been checking his will and that something needed to be added. This time his draft read:
“To divide my residual estate as flows.
i. My estate, in the UK (incl Jersey), shall be divided [between my children]…
ii. My estate outside the UK (incl Jersey) shall be left in its entirety to my wife …”
Unfortunately, these changes were not made before Mr Rossiter died.
The constitutional position of Jersey
Jersey (and the other Channel Islands) are the last vestiges of the ancient Duchy of Normandy which, following the Norman Conquest of 1066, was united with the English Crown. Although King John lost the mainland part of the Duchy, the islands remained in the hands of the English Crown. It has its own legislature, its own courts and its own legal system. The monarch continues to exercise jurisdiction over the islands as if she were Duke of Normandy.
Jersey is not, however, an independent state in international law. The UK government is responsible for its international relations and its defence. Nor was Jersey a member of the EU. This is explained more fully in R (Barclay) v Lord Chancellor and Secretary of State for Justice (No 2) [2014] UKSC 54, [2015] AC 276.
For the purposes of domestic legislation it is not part of the United Kingdom as defined by section 5 of and Schedule 1 to the Interpretation Act 1978 (which defines the United Kingdom as “Great Britain and Northern Ireland”); but it is one of the “British Islands” as there defined. Some provisions of that Act are applied to deeds and other instruments (see section 23 (3)); but section 5 is not one of them.
Is the meaning of United Kingdom immutable?
It is common ground that, in the will as executed, “UK” stands for “United Kingdom”. The Oxford English Dictionary's entry reads thus:
“United Kingdom n. (a) the kingdom of Great Britain, formed from the union of Scotland and England (see union n. 2 3b(a)) (now historical); (b) (after the union of 1801) the kingdom of Great Britain and Ireland, or (after the formation of the Irish Free State in 1921) of Great Britain and Northern Ireland; abbreviated U.K. n. at U n. 1 Initialisms 1a.”
These definitions have changed over the years, but none of them includes the Channel Islands. Nevertheless, as Steyn LJ put it in Arbuthnott v Fagan [1995] CLC 1396, 1402:
“Dictionaries never solve concrete problems of construction. The meaning of words cannot be ascertained divorced from their context.”
Thus, despite the dictionary definition, there are contexts in which the United Kingdom has been held to encompass the Channel Islands. In Stoneham v The Ocean, Railway, and General Accident Insurance Company (1887) 19 QBD 237 an insurance policy covered “any bodily injury caused by any external accident, happening within the United Kingdom, or on the continent of Europe.” The assured was accidentally drowned in Jersey. The Divisional Court held that the insurers were liable under the policy. Mathew J said at 239:
“…the pleadings are, no doubt, somewhat irregular, but I think it is sufficiently apparent that the question which the parties intended to leave to the Court as a question of law is whether Jersey is, in popular language, a part of the United Kingdom. I have no hesitation in saying that it is: I can give no other answer to the question.”
Agreeing, Cave J said at 240–41:
“As to the first point, I think it is very clear that Jersey is within the United Kingdom within the meaning of the words of this policy. Some light is thrown on this question by one of the conditions indorsed on the policy: “This policy shall be void if the assured shall travel beyond the limits of Europe, or shall embark in any vessel with the intention of going beyond such limits.” That provision means that the policy shall be in force in Europe, and Jersey is in Europe. In my judgment it is also within the United Kingdom.”
Nugee LJ (then sitting as Nugee J) followed the lead of that case in Royal Society v Robinson [2015] EWHC 3442 (Ch), [2017] WTLR 299. In the latter case a will provided that it should extend “only to property of mine which is situated at my death in the United Kingdom”. Both at the date of execution of his will and at the date of his death the testator had substantial off-shore assets. Nugee J said at [29], after referring to Stoneham:
“The purpose which I am citing it for is that it occurred to Mr. Justice Matthew in 1887 that he had no hesitation in saying that Jersey was, in popular language, a part of the United Kingdom. It certainly leads me to conclude that it is possible that laymen might regard the United Kingdom as extending to include the Channel Islands and the Isle of Man and that, in the light of the surrounding circumstances, it is therefore entirely possible that that was what [the testator] meant when he referred to the Will extending only to property of his situated at his death in the United Kingdom.”
Mr Saifee accepted that Royal Society was correctly decided; and I agree with him.
On the other side stands Navigators and General Insurance Co Ltd v Ringrose [1962] 1 WLR 173. That was another case of an insurance policy which insured a 16-foot catamaran “whilst within the United Kingdom, ashore or afloat or in transit by road or by rail.” The craft was dismasted in mid-Channel en route to the Channel Islands about 28 miles south of Portland Bill, and was salved by an Italian steamer. The question was whether the insurers were liable. This court held that they were not. The insured's first argument was that the Channel Islands are part of the United Kingdom and that, since he was setting out from England to the Channel Islands, it was reasonable that he should be covered by the insurance policy for the whole of that journey between two places in the United Kingdom. It would, he said, be artificial to suggest that he was covered for a while when he left England and covered for a while before he arrived at the Channel Islands but was not covered in mid-Channel....
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