Jennison v Jennison [2022] EWCA Civ 1682

Lord Justice Newey, delivering the judgment of the Court of Appeal, has confirmed that a foreign executor suing in the English jurisdiction in respect of property situate in England derives his or her title pursuant to the law in England and Wales, notwithstanding that the law of the testator’s domicile may not mirror that of England and Wales. Accordingly, the principle applied in the Privy Council’s decision in Chetty v Chetty [1916] AC 604 applies.

The background, necessary to understanding the issue that was before the court, was that Graham Jennison (deceased) was a long term resident of, and died in, New South Wales, Australia. His widow, Glenda, was appointed his executrix under his New South Wales will. His estate comprised property in both New South Wales and England. Graham and his brother, Richard (the First Defendant), had jointly purchased land in Wales, near Sheffield, in 1990. They held the land as tenants in common and Graham’s 50% share in that land fell into his estate upon his death. Following Graham’s death Richard, and his wife Gwyneth (the Second Defendant), undertook various transactions in respect of that land and Glenda brought proceedings in the County Court at Manchester for relief in respect of various alleged breaches of trust.

At the time Glenda issued proceedings she had obtained a grant of probate out of the Supreme Court of New South Wales but had not yet obtained an English grant or had the New South Wales grant re-sealed pursuant to the Colonial Probates Act 1892. Resealing occurred some months later but before the case reached trial. The Defendants argued that the proceedings instituted by Glenda were a nullity, her having obtained no grant or resealed grant prior to issue and therefore having no standing to issue a claim in the English Jurisdiction. They pursued an application to strike out Glenda’s claim which was heard on the morning of trial. That application was dismissed by the trial judge, a decision that was upheld on the first appeal. Permission to pursue a second appeal was granted.

The Defendants relied upon a number of authorities that were really concerned with administrators rather than executors, whose authority to represent a deceased is unequivocally derived from letters of administration, but the primary authority upon which the Defendants advanced their case was that of Attorney-General v New York Breweries Co Ltd [1898] 1 QB 205 (Court of Appeal) and [1899] AC 62 (House of Lords). That case, however, really concerned the question whether probate duty was payable in circumstances where foreign (US) executors directed transactions to be undertaken in respect of English property without any intention of obtaining any grant of representation in England and Wales. Newey LJ rejected the Defendants’ argument that New York Breweries was authority for the proposition that a foreign executor had no standing to bring proceedings in England in respect of property situate in England.

Importantly, at paragraph [50], Newey LJ said “... “the administration of a deceased person’s assets is governed wholly by the law of the country from which the personal representative derives his or her authority to collect them”. It seems to me that the question whether the claimant is to be considered to have acquired title to the deceased’s cause of action against the defendants as the executrix appointed under his will is to be properly characterised as one relating to the administration of a deceased person’s assets. It appears to me, too, that, notwithstanding that the claimant obtained a grant of probate inn New South Wales, it is from this jurisdiction that she derived her authority to collect assets here: after all, a foreign grant of representation is not without more recognised as having any force in England and Wales. That being so, the law of England and Wales is, I think, to be applied to the issue of whether the claimant acquired title to the deceased’s estate on his death and New South Wales law on the point is immaterial. On that footing, the Chetty v Chetty approach is in point and the claimant is to be regarded as having acquired title to the cause of action against the defendants on the deceased’s death and so having had standing to issue the present claim when she did”.

It is now clear that a foreign executor, appointed under a foreign will, but who has a cause of action in England and Wales, will have standing in England and Wales to bring proceedings based upon the principle that under the law of England and Wales a testator derives his title to the testator’s property (situate in England and Wales) under the will. It will still, of course, be necessary to prove title prior to obtaining any relief.

One further point which was considered was whether the discretion under CPR 3.10 could be prayed in aid to correct defects where proceedings were determined to be a nullity. That appeared to have been the conclusion of Peter Smith J in Meerza v Al Baho [2015] EWHC 3154 (Ch). However, as also confirmed by the Privy Council in Jogie v Sealy [2022] UKPC 32, Newey LJ concluded that CPR 3.10 cannot apply in respect of proceedings that were a nullity from the outset.