Jennison v Jennison & anr [2023] WTLR 543

Analysis

The claimant was married to Graham Jennison (the deceased) who died domiciled in New South Wales on 11 July 2007. He left a will dated 16 August 2006 appointing the claimant as sole executrix. Probate was granted to the claimant on 15 May 2008 in New South Wales (NSW) (the grant).

The proceedings, in respect of alleged breaches of trust, were issued on 18 February 2019 by the claimant as personal representative of the deceased. The particulars of claim relied upon the grant. The defence pleaded that it was not admitted that the grant conferred jurisdiction to the claimant in respect of the deceased’s estate in England and Wales.

Subsequently the grant was resealed by the High Court in England and Wales under the Colonial Probates Act 1892. The particulars of claim were then amended, including to rely on the resealed grant. The amended defence alleged that at the time the claim form was issued the claimant had no legal standing as personal representative of the deceased. The proceedings were a nullity and should be struck out.

At the outset of the trial the District Judge heard an application by the defendants to strike out and/or give summary judgment on the claim on the basis that the claimant had lacked standing when the claim was issued. The application was dismissed and the claimant succeeded at trial. The District Judge concluded on the application that the executor derived title from the will and not from the grant, and this applied whether a foreign personal representative or not. If the judge was wrong on this, then in the alternative they relied on CPR 3 to allow the mistake to be corrected.

The defendants appealed to HHJ Pearce both on the substance of the claim and the dismissal of the application. The appeal was dismissed. On the appeal against the dismissal of the application the Circuit Judge took the view that the 1892 Act put the claimant in the same position she would have been in had the deceased’s will been English. It sufficed for the proper constitution of proceedings for a claimant who was executor to have the grant resealed prior to trial. In the alternative the court could cure the defect under CPR 3.10.

The defendants then appealed to the Court of Appeal in respect of the application.

Held:

1. (1) Resealing under the 1892 Act did not have retrospective effect:
   1. (i) In Burns v Campbell [1952] Denning LJ’s comments as to the resealing only operating in the future between England and Scotland were confirming a view already expressed.
   2. (ii) It was difficult to see why Parliament should have intended resealing under the 1892 Act to be retrospective when resealings as between England and either Scotland or Northern Ireland did not. It was more likely that slight differences in the wording of the provisions reflected differing drafting styles.
   3. (iii) Section 2 of the 1892 Act nowhere stated that resealing was to have retrospective effect. The natural meaning of ‘thereupon’ was just ‘upon that being done’. It did not imply retrospectivity.
   4. (iv) Section 1 of the 1892 Act also used the word ‘thereupon’ in the context of the legislation applying to a territory by an order in council. There could be no question in that context of ‘thereupon’ producing a retrospective effect.
2. (2) In Chetty v Chetty [1916] the Privy Council appeared to have applied the principle that an executor derives their title and authority from the will in the context of a testator who was domiciled in a different territory. There was no sufficient reason to decline to follow it. There remained the question of whether Chetty was to be applied in relation to all foreign executors or only where the law of the testator’s domicile treated an executor as acquiring title from the date of death. The point was relevant as NSW law was not identical to English and Welsh law in this respect. It did not consider an executor who had not obtained probate to have legal title to the testator’s estate. Legal title was vested in the NSW trustee.
3. (3) The administration of a deceased’s person’s assets is governed wholly by the law of the country from which the personal representative acquired their authority to collect them. Whether the claimant had acquired title to the deceased’s cause of action was properly characterised as a question of administration. It was from England that she derived her title and the law of England and Wales was to be applied. The NSW lawon the point was immaterial. The Chetty approach applied and she had standing to commence proceedings.
4. (4) The court went on to consider whether, if the claimant had no standing to issue the claim, the court could nevertheless allow proceedings to continue under CPR 3.10. The wide discretion conferred by CPR Part 3 could not be used to validate a nullity. It allowed existing proceedings to be regularised. It did not allow the creation of valid proceedings. The bringing of a claim on behalf of an estate by a person who, at the time, lacked standing to represent it is not merely an error of procedure but renders the proceedings a nullity.

Appeal dismissed.

JUDGMENT LORD JUSTICE NEWEY: [1] 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, …

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