Re Servoz-Gavin, decd
| Jurisdiction | England & Wales |
| Judge | Mercantile Judge, North Eastern Circuit,Peter Langan |
| Judgment Date | 14 September 2009 |
| Neutral Citation | [2009] EWHC 3168 (Ch) |
| Date | 14 September 2009 |
| Court | Chancery Division |
| Docket Number | Claim No. 8BM30498 |
[2009] EWHC 3168 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PROBATE)
LEEDS DISTRICT REGISTRY
Before: Peter Langan
(Mercantile Judge, North Eastern Circuit)
In the Estate of Ashley Edward Servoz-Gavin deceased
Claim No. 8BM30498
Ashley Servoz-Gavin died on 14 April 2005. The first defendant, who is his first cousin once removed, obtained letters of administration at attorney for the claimant, who is an aunt of the deceased, on the footing that he had died intestate. Subsequently it became apparent that in 1985, and again in 1990, the deceased, who had been a ship's radio officer, had made, or might have made, nuncupative wills which would be valid under the privilege accorded to a “mariner or seaman being at sea” within section 11 of the Wills Act 1837. The sole beneficiary under any such will would be the claimant. In this action the claimant asks the court to revoke the grant of administration and to pronounce in favour of one or other of the allegedly privileged wills. The claimant herself, and the twelve defendants (with the exception of the first defendant), are the persons who will be entitled to the estate on an intestacy. 1
The claimant has been represented by Ms Penelope Reed QC. The first and fourth defendants were present at the hearing and gave evidence: they support the claimant. The second defendant did not take part in the trial. The remaining defendants, who oppose the claim, were represented by Mr Gilead Cooper QC.
The case has involved a forensic journey on a path along which most lawyers, counsel and myself included, never travel after our student days. I am grateful to Ms Reed and Mr Cooper for their elegant, economical and helpful written and oral submissions. As will appear from what follows, the areas in which I have to reach decisions are these. (1) There are questions of fact as to the making of the alleged wills. What is central to these questions is the reliability or unreliability of the evidence given by the fourth defendant. (2) If the fourth defendant's evidence is accepted, I will have to decide whether the words used by the deceased were such as to show that he had the intention required for the making of a privileged will. (3) There is a pure question of law as to the extent of the privilege granted to “any mariner or seaman” by section 11 of the Wills Act 1837. When the alleged wills were made, the deceased was about to join ships registered in the Netherlands (in 1985) and in Panama (1990), and Mr Cooper has contended that privileged wills can be made only by those employed on British-registered or British-owned vessels. (4) There is a mixed question of law and fact arising from the words “at sea” in the statutory phrase “any mariner or seaman being at sea.” I will have to decide whether the deceased, in 1985 and again in 1990, is properly to be regarded as having been “at sea” in the sense in which those words have been interpreted in the authorities.
Narrative
The Ayling family
The family structure is quite complicated. There are within the family five persons of particular importance in the story, and I hope that no offence will be taken by anyone if I refer to them informally in the way in which they have been most frequently referred to in the course of the trial.
Wyndham and Florence Ayling, who are both long since dead, had ten children, one of whom died in infancy. It will be sufficient for the purposes of this judgment to say something about four of those children.
The eldest child was Walter Ayling. The fourth defendant Christine Dinoulis (‘Christine’) is a daughter of Walter Ayling. The first defendant Emma Summers (‘Emma’) is Christine's daughter.
The fifth child was the claimant Anne Ayling (‘Aunt Anne’). Aunt Anne is the only one of the children of Wyndham and Florence Ayling who is still living. She has never married. She is now 98 years old. She gave evidence at the hearing and appears to be, for a person of her age, in exceptionally good health.
Aunt Anne was the elder of twin sisters, the younger being Agnes Ayling (‘Agnes’).
The youngest of the ten children was Ron Ayling.
Agnes was married either before the outbreak of war in 1939 or during the War. Her husband, whose surname was Chapman, was away on military service for almost the whole of the War. The deceased (‘Ashley’) was her son. Ashley was born on 22 February 1946. The family lore, which is not disputed by anyone, is as follows. Ashley was conceived on VE Day. His father was Irish: no one knows anything more about him, not even his name. 2 When Agnes's husband came home from the War, he found that Agnes was pregnant and he wanted her to have an abortion. She refused, the husband subsequently left her, and they were divorced. Agnes did not remarry, nor did she have any more children.
Aunt Anne lived, and still lives, in a house in Raynel Drive, Leeds. For many years until he died in 1990, she shared her home with her youngest sibling Ron. Her eldest brother Walter and his wife also lived in Raynel Drive, just a few doors from Aunt Anne. Their daughter Christine was born in 1939, and so was six years older than Ashley. Ashley was brought up by his mother Agnes in Lincolnshire, first in Cleethorpes and later on in Grimsby.
It is perhaps easy to forget how, even in the recent past, birth out of wedlock was a stigma. Ashley was not merely bullied at school on account of his illegitimacy, but he appears to have been cold-shouldered by many members of the Ayling family. Not all the members of the family adopted this attitude. Aunt Anne was the shining exception. Walter Ayling and his wife must also have been exceptions, because Christine can recall going on holiday with her parents to stay with Agnes. Agnes and Ashley would also come to Leeds to stay with Aunt Anne, and so the first cousins, Ashley and Christine, got to know each other well and became quite close.
Ashley decided to join the Army when he was 14 and went as a boy soldier into the Junior Leaders Regiment. He served in the Far East, and was badly burnt when a hand-grenade was thrown into a jeep in which he was travelling. He had to grow a beard because of his burnt facial skin and this meant that, although he remained in the Army, he was unable to carry out the usual duties. Perhaps unsurprisingly, he left the Army and went to a college in Hull where he trained as a radio officer for the Merchant Navy. Upon leaving the Army Ashley changed his surname from Chapman to Servoz-Gavin. Various certificates and other documents which I have seen show that he qualified as a radio officer in 1978 and gained an additional qualification in maintenance of radar equipment in early 1979.
In the meantime, in 1964, Christine had left home and moved to Hertfordshire, where she still lives. In 1975 Agnes died, and thereafter, Aunt Anne's house became “home” to Ashley and she became “second mother” to him. The evidence on this is quite detailed, and has not been challenged, so I need say very little about it. I should, however, emphasise that the evidence about the relationship between Aunt Anne and Ashley is not confined to the recollections of Aunt Anne and Christine, but also comes from quite extensive correspondence which passed between Aunt Anne and Ashley and which, fortunately, was not
destroyed.After qualifying as a radio officer, Ashley spent the rest of his working life at sea. He was not employed by any particular shipping company, but was a free-lance officer, signing up for (usually) lengthy voyages when work was available. When Ashley was not at sea, he spent much of his leave at Aunt Anne's, although some time was also spent in Hull, where he had bought investment properties, and on holiday with friends in Germany. Contact between him and Christine was by this stage of their lives no more than occasional. After her move to Hertfordshire, where she was a teacher, it cannot have been often that her visits to her parents during school holidays will have coincided with Ashley's being in residence at Aunt Anne's.
May 1985
The first privileged will is said to have been made in May 1985, in the course of a conversation between Ashley and Christine outside the home of Christine's parents in Leeds. Christine's evidence about this has been challenged. What I propose to do in this section of the judgment is to confine myself to the evidence relating to Ashley's movements in May 1985, in so far as they have been reconstructed from documents which are not challenged.
A seaman's book is a passport-like document which records the dates on which a seafarer joins and leaves ships. A seafarer may, as I understand matters, have several books issued by the authorities of different countries. Ashley's Dutch seaman's book is in evidence. This shows that Ashley was examined by a port doctor in Rotterdam on 14 May 1985; that he arrived on board the Dutch vessel Mijdrecht on 22 May 1985; and that he left the ship at Rotterdam on 22 September 1985. There is also a letter from Ashley to Aunt Anne and her brother Ron, dated 23 May 1985 and post-marked in Kent on 25 May 1985. It is not, I think, speculating to say that the letter appears to have been started in Rotterdam before 22 May and subsequently finished on board and handed to someone for posting in England. 3 In the letter Ashley said:
After kicking around here in Rotterdam for a week I have at last got a date. Leave tomorrow to join a ship called the ‘ Mijdrec...
To continue reading
Request your trial
-
Requirements for Valid Execution
...will is made that determine whether or not the testator is privileged. The circumstances at death are irrelevant. In Re Servoz-Gavin [2009] EWHC 3168 (Ch), the deceased was a radio officer in the Merchant Navy. In February 1990, he was about to leave for Bombay to join a ship registered in ......