Re Berger, decd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUSTILL,LORD JUSTICE MANN,SIR DENYS BUCKLEY |
| Judgment Date | 21 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0721-3 |
| Docket Number | 88/0633 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 July 1988 |
[1988] EWCA Civ J0721-3
Lord Justice Mustill
Lord Justice Mann
and
Sir Denys Buckley
88/0633
CH 1984 B. No. 4687
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PROBATE)
(MR. JUSTICE WARNER)
Royal Courts of Justice.
MR. D. RITCHIE (instructed by Messrs. Norton Rose Botterell & Roche) appeared on behalf of the (Plaintiffs) Respondents.
MR. MICHAEL NIELD (instructed by Messrs. Heald Nickinson) appeared on behalf of the (Fourth Defendant) Appellant.
This case concerns the testamentary effect of an instrument executed by Mr. Gerson Berger on the 6th August, 1977. This document was handwritten in the Hebrew tongue, and there is no doubt that Mr. Berger, who was a devout Orthodix Jew, intended it to be a zavah. This term has for convenience been rendered as a "Hebrew will", but I think it preferable to employ the technical expression, so as to avoid begging the question whether the document was a will at all. At first instance, Mr. Justice Warner has pronounced for the zavah, holding also that it should take effect with the incorporation of a roughly contemporaneous document in the English language, which was undoubtedly intended to take effect as a will, but which failed for want of proper execution. An appeal is now brought against this decision by certain beneficiaries under an English will made on the 15th July, 1975, the contention being that the zavah was not apt for admission to probate, either with or without the incorporation of the invalid English will of 1977, and that accordingly the 1975 will stands as the last valid testamentary disposition of Mr. Berger.
This appeal is concerned with two groups of documents. The first consists of a series of documents in the English language, plainly intended to take effect as wills to which effect would be given through the English law of probate. So far as is shown by the evidence now before us, there were seven such documents, executed in 1957, 1958, 1963, 1964, 1972, 1975 and 1977. Current at the same time was a series of documents in the shape of a zavah. The first was dated 1965. The second was executed on the 18th December, 1972, the same date as the fifth English will. The third was dated the 11th February, 1976, between the sixth and seventh English wills. As will later appear, it was intended by Mr. Berger and his solicitors that the fourth zavah should be executed at about the same time as the seventh English will, as had been the case with the pair of documents dated the 18th December, 1972. In fact the zavah was signed on the 6th August, 1977, three days before the seventh and last English will, and about six weeks before Mr. Berger died.
The present dispute arises from the fact that although as planned the deceased appended his signature to the last English will within a few days of the last zavah, that will was not properly executed, and therefore has no direct testamentary effect. The question for decision is whether in consequence the estate should be distributed in accordance with the last of the valid English wills, namely the will of the 15th July, 1975, or whether the zavah of the 6th August, 1977 should be admitted to probate, as representing the last of the deceased's valid testamentary dispositions. Mr. Justice Warner has held in favour of the latter alternative, and against this decision the beneficiaries under the 1975 will now appeal.
In order to form an impression of how the deceased envisaged that the two series of documents were to take effect concurrently it is convenient to look as briefly as possible at the dispositions which they contained. We may begin with the English will of the 25th July, 1964. As did all the English wills, this began with a revocation clause. It proceeded to appoint executors and trustees, and then dealt specifically with the shares in Raymond Sun Limited which were to go in unequal portions to two of the testator's sons. The residue of the estate was devised to the trustees, in trust for the testator's daughter Doris, with a liberty to apply capital to the benefit of the deceased's wife. The remainder of the will consisted of various provisions in common form relating to the powers and rights of the trustees. By a codicil dated the 27th July, 1964 the testator gave his personal effects to his children, after the death of his wife.
Nine months later Mr. Berger executed the first zavah. This document, which was of some length, began with words translated as follows: "This is concerning the division of the estate after 120 years"—the last three words being a circumlocution for the death of Mr. Berger. The first clause stated that the Raymond Sun company "is not included in the Trust", and was to pass to the same sons in the same proportion as in the English will. The remainder of the will consisted of—
1. Directions as to the disposal of companies "in the Trust".
2. A direction that various relatives should take stipulated sums from those companies, with a wide discretion as to the time at which this should be done.
3. A stipulation that certain named "companies from the Trust" which he had given to his daughter should belong to her "although they too are in the Trust".
4. A command that all the heirs should give Mr. Berger's wife an income of £100 per week free of tax, as a director's fee or in some other way.
5. A declaration that the shares in certain companies which Mr. Berger had given to his son-in-law during his lifetime were his property, "even the 25 per cent I have therein are his".
6. A request "in the matter of charity" "from the value of the trust companies…and from the charitable company G.B. Association Ltd."a certain income should be given to a brother-in-law, and that marriage settlements should be made for his sons and daughter.
7. The expression of a wish that moneys "from my Charity" and "from the Charity funds that shall remain after me", various dispositions should be made.
8. Expressions of affection, and exhortations to good conduct, directed to various relatives.
Next, on the 18th December, 1972 there were executed, in unknown order, an English will and a zavah. The English will contained specific legacies of £50,000 and £15,000 to the Gerson Berger Association Limited and to his wife, respectively. As to the residue, the Trustees were to pay the income to the wife for life, and upon her death were to hold the trust fund for the children in equal shares.
The contemporaneous zavah began with the words (in translation)—"Here are some changes in my will."It is clear that the words translated as "my will" were a reference to the zavah of the 25th May, 1965. Paragraph 1 stated that since, the Raymond Sun Company now belonged to the charitable company G.B. Associated, paragraph 1 of the former zavah was now irrelevant, as were certain of the directions that relatives should have sums from companies in the trust, as distributions had already been made. For the rest, the provisions of the former zavah were either stated to be unchanged, or were varied in minor respects.
Next, there was the English will of the 15th July, 1975. This simply contained an absolute gift of £100,000 to the Gerson Berger Association Limited, with the residue to the testator's wife.
On the 11th February, 1976 he made a further zavah. In brief, this was to the following effect—
1. Certain paragraphs of the two previous zavah were cancelled, as were some of the specific directions for payments to named persons.
2. The provision for the wife was increased to £200 per week free of tax.
2. Various new gifts were added.
It may be noted that nothing was said in this zavah about the sources from which those responsible for administering it were to find the additional expenditures which it entailed.
Now we arrive at the pair of documents which the deceased executed during August 1977. The circumstances were found by the learned judge to have been as follows:
"Mr. Rabin [the solicitor of Mr. Berger] took instructions for the English will at two meetings which he had with the deceased at 8, Gilda Crescent at the end of July 1977. During the course of those meetings, the deceased hold Mr. Rabin that he was going to write to his children a 'Zavah' (a Jewish will) and he instructed Mr. Rabin to refer to it in the English will. Mr. Rabin told me, and it is, I think, common ground, that if a Zavah is to be morally binding only, it need not be witnessed, but that if it is to be binding in Jewish law it must have two witnesses. Mr. Rabin assumed that the deceased's Zavah would be of the former kind. Otherwise he would have asked the deceased for details of what he was going to put in it and taken steps to ensure that the two wills were consistent. Mr. Rabin sent the engrossment of the English will to the deceased by hand at 8, Gilda Crescent in the afternoon of 5th August 1977, with a covering letter. He had not previously submitted to the deceased a draft of it. The 5th August 1977 was a Friday. The Jewish Sabbath began at sunset on that day and ended at sunset on the following day. A man of the deceased's religious convictions would not have taken any step to execute a will during that period. After sunset on Saturday 6th August 1977 the deceased executed the Hebrew will. He did so at 8, Gilda Crescent. Why he did not execute the English will at the same time is unknown. Possibly he had not had time to read it. Undoubtedly he was...
To continue reading
Request your trial
-
Corbett v Newey
...intent, means an intention to make a "a revocable ambulatory disposition of the maker's property which is to take effect on death" — Re Berger decd [1990] Ch 118 per Mustill LJ at 129. A will, in other words, subjects the assets of the testator, from the moment of its execution, to a series......
-
Harvey v Ijan Beveridge
...1, at [5]. 21 Wills Act 2007, ss 15 and 16. 22 McCormack v Foley [1983] NZLR 57 (CA) at 69; Corbett v Newey [1998] Ch 57 (CA) at 65; Re Berger (Deceased) [1990] Ch 118 (CA) at 131-132; and Raymond Jennings and John Harper Jarman on Wills (8th ed, Sweet & Maxwell, London, 1951) at 23 Wills......
-
Re Cheung Hung
...probate court. He cited the following cases: Concha v Concha (1886) 11 App Cas 541; Re Ward [1971] 2 All ER 1249 and In re Berger, dec’d [1990] 1 Ch 118. I shall explain why I do not regard these authorities as undermining the judgment in Yip 10. I only need to cite two passages from these ......
-
Fok Po Nam v Hsbc Trustee (Hong Kong) Ltd
...In Re Estate of Cheung Hung [2011] 1 HKLRD 455, Johnson Lam J (as he then was) referred to the judgment of Sir Denys Buckley in Re Berger [1990] Ch 118 at 133-134 as containing a “modern statement” of the distinction in the function of the court exercising its probate jurisdiction and one e......