Glenda Joy Jennison (as personal representative of the estate of Graham Jennison deceased) v Richard Henry Jennison
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lord Justice Coulson,Lady Justice King |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWCA Civ 1682 |
| Docket Number | Case No: CA-2022-000803 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1682
Lady Justice King
Lord Justice Newey
and
Lord Justice Coulson
Case No: CA-2022-000803
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT MANCHESTER
His Honour Judge Pearce
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Stear (instructed by direct access) for the Appellants
Rowena Meager (instructed by Irwin Mitchell LLP) for the Respondent
Hearing date: 1 December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 21 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The claimant, Mrs Glenda Jennison, was married to Mr Graham Jennison (“the deceased”), who died in New South Wales, where he was domiciled, on 11 July 2007. The deceased left a will dated 16 August 2006 by which he appointed the claimant as his sole executrix. On 15 May 2008, probate of that will was granted to the claimant by the Supreme Court of New South Wales.
The claimant issued the present proceedings on 18 February 2019. She was stated in the heading to the claim form to be suing “as personal representative to the estate of Graham Jennison deceased”. The deceased and the first defendant, Mr Richard Jennison, were brothers, and the second defendant, Mrs Gwyneth Jennison, is the first defendant's wife. By her claim, the claimant sought relief in respect of breaches of trust which the defendants were said to have committed in connection with land near Church Street, Wales, Sheffield.
Paragraph 3 of the particulars of claim referred to the New South Wales grant of probate (“the Grant”). In paragraph 4 of their defence, which was dated 2 August 2019, the defendants said that it was “not admitted that the said Probate confers any jurisdiction to the Claimant in respect of any part of the said Graham Jennison's estate which may exist within England and Wales”.
On 25 November 2019, the Grant was resealed by the High Court under the Colonial Probates Act 1892 (“the 1892 Act”). At much the same time, these proceedings were transferred from the High Court to the County Court.
On 21 September 2020, the claimant amended her particulars of claim in a variety of respects. As part of the changes, paragraph 3 was expanded to refer to the resealing of the Grant.
The defendants in turn amended their defence on 23 September 2020. In its revised form, the defendants put forward a positive case in relation to the Grant. This was said:
“1A. At the time that the Claimant issued the Claim Form (18 February 2019) purporting to bring the claim as personal representative to the estate of Graham Jennison deceased the Claimant as a foreign Executor had no legal standing or capacity to do so and the Claim is liable to be struck out as being void and a nullity. The Defendants set out their case on the Claimant's lack of standing/capacity in more detail below ….
4. It is not admitted that the said Probate confers any jurisdiction to the Claimant in respect of any part of the said Graham Jennison's estate which may exist within England and Wales. The said Probate having been resealed in England and Wales on 25 November 2019 it is admitted that the resealed Probate confers with effect from 25 November 2019 (but not before that day) jurisdiction to the Claimant as a foreign Executor in respect of any part of the said Graham Jennison's estate which may exist within England and Wales. It is averred that in the absence of any resealed Probate the Claimant being a foreign executor had no capacity and/or legal standing at the date of issue of the Claim Form and that the Claim should accordingly be struck out or dismissed the claim being void and a nullity.”
The claim came on for trial before District Judge Carter, sitting in the County Court at Manchester, on 8 October 2020. At the outset of the hearing, the District Judge heard an application by the defendants for the proceedings to be struck out, or for summary judgment in their favour, on the basis that the claimant had had no standing to bring the claim when it was issued. In a judgment given that day, the District Judge dismissed the application, and the trial then proceeded. At the conclusion of the trial, the District Judge gave judgment in favour of the claimant on her claim.
The defendants appealed the District Judge's ruling on their strike out/summary judgment application. The appeal came before His Honour Judge Pearce on 7 March 2022, but, in a judgment dated 4 April 2022, he dismissed it. The defendants now challenge Judge Pearce's decision in this Court.
For completeness, I should mention that the defendants also appealed District Judge Carter's decision on the substance of the claim. We are not, however, concerned with that appeal.
District Judge Carter determined the strike out/summary judgment application in the claimant's favour on the basis that “an executor derives its title from the will and not from any letters of administration or grant from the courts” and, hence, that “the claimant as the executrix of the will was entitled … to bring this claim irrespective of whether she was a foreign personal representative or not”, albeit that it is “a requirement of these proceedings that, at the time of proving the claimant's case, the claimant is able to show that there has been a grant”. District Judge Carter was therefore “satisfied that the claimant has the right to bring this claim”. Supposing, however, that he was wrong on that point, District Judge Carter considered that “the court should … exercise its powers under CPR 3 to allow the mistake to be amended and the claim to be dealt with”.
For Judge Pearce, the 1892 Act was of key importance. In Judge Pearce's view, the resealing of the Grant under that Act served to put the claimant in the same position as she would have been in had the deceased's will been English. Accordingly, “the proceedings were not as a matter of law improperly brought, since it sufficed for the proper constitution of the proceedings that the Claimant was an executor who had her probate re-sealed in the English Courts prior to trial”. Judge Pearce further said that, were he wrong on that issue, “the proceedings are not, as a matter of law, an incurable nullity, but rather the court may permit them to continue, waiving any defect pursuant to the power in CPR 3.10”.
The issues to which the present appeal gives rise can be addressed under the following headings:
i) Standing; and
ii) CPR 3.10.
Standing
The parties' cases in outline
Mr Philip Stear, who appeared for the defendants, argued that, while someone appointed as executor under the will of a testator domiciled in England and Wales obtains title to the estate on death, that is not the case with a testator domiciled abroad. The administration of assets of such a person in England and Wales is governed by the law of England and Wales rather than the law of the domicile and, under the former, a foreign executor will not be considered to have title to the testator's estate unless and until a grant of probate is obtained in this jurisdiction or (where this is possible) a foreign grant of probate is resealed here under the 1892 Act. Further, resealing does not operate retrospectively. In the circumstances, so Mr Stear submitted, the claimant had no standing to issue the present proceedings when she did and they remain a nullity notwithstanding the subsequent resealing of the Grant.
In contrast, Ms Rowena Meager, who appeared for the claimant, maintained that an executor can bring proceedings in advance of any grant of probate or resealing regardless of where the testator was domiciled. The claimant thus had standing when this claim was issued. Supposing, though, that that were not the case, the claimant acquired title retrospectively when the Grant was resealed.
The position in England and Wales
As a matter of domestic law, an executor is considered to gain title as soon as the testator dies, but an administrator acquires title only when letters of administration are granted. In the meantime, legal title to the estate of a person who dies intestate vests in the Public Trustee under section 9 of the Administration of Estates Act 1925.
There was reference to the different positions of executors and administrators in Woolley v Clark (1822) B & Ald 744. Abbott CJ said at 745–746:
“There is a manifest distinction between the case of an administrator and an executor. An administrator derives his title wholly from the Ecclesiastical Court. He has none until the letters of administration are granted, and the property of the deceased vests in him only from the time of the grant. An executor, on the other hand, derives his title from the will itself, and the property vests in him from the moment of the testator's death.”
Citing, among other authorities, Woolley v Clark, Lord Parker of Waddington, giving the judgment of the Privy Council, made remarks to similar effect in Chetty v Chetty [1916] AC 604, a case to which I shall have to return later in this judgment. He said at 608–609:
“It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which,...
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