Analysis
The claimant at first instance was the widow of the deceased and the personal representative of his estate. The defendants were the deceased’s brother and sister-in-law. The claimant sought declaratory relief, an order for sale and compensation flowing from the defendants’ alleged breach of trust in dealing with land. The defendants defended the claim on the basis of a lack of standing as the claim form had been issued before the foreign grant of probate was resealed in the UK. The defendants appealed the refusal to grant them summary judgment or strike out on this basis.
Held (dismissing the appeal):
The resealing of a foreign grant of probate was necessary to give effect to the foreign will and to allow the appointment of an executor (Colonial Probates Act 1892, s2).
The fact that probate was granted after the issue of proceedings did not invalidate them so long as the claimant was able to prove her entitlement to sue by probate at trial, such proof being a prerequisite of proving the claim but not a precondition of its validity in the first place (Chetty v Chetty [1916] followed).
On an application for resealing of the grant of probate under s2 of the Colonial Probates Act 1892, the court’s power is expressed in discretionary terms and if doubt were raised as to whether the role of the executor under the foreign will differed in a material respect from that of the executor in English and Welsh law, the court of probate could refuse the application. That did not happen in this case. Accordingly, the resealing of the will caused the appointment of the executor to have effect in the UK as if the will had been proved in the domestic courts.
The judge was justified to exercise any power that might exist under CPR 3.10 to regularise the proceedings.
JUDGMENT HHJ PEARCE: Introduction [1] This is my judgment on an appeal from a decision of District Judge Carter handed down on 8 October 2020. It follows the hearing of oral submissions on 7 March 2022. Throughout this judgment, I shall retain the description of the parties at first instance as ‘Defendants’ and ‘Claimant’ rather …Continue reading "Jennison & anr v Jennison [2022] WTLR 1027"