Partington v Rossiter [2022] WTLR 257

Analysis

The deceased was domiciled in Russia and entitled to assets in Jersey. He made a will in the UK in 2013. He had initially prepared a draft himself, which defined his estate as his property, money and investments in the UK, and made specific legacies to his children in respect of his Jersey assets. The deceased’s solicitor advised him that the will did not need to refer to specific assets and it was redrafted. Clause 1 of the executed will stated ‘I confirm that this will only has effect in relation to my UK assets’. It divided the residuary estate equally between his children. The deceased’s solicitor also advised him that he would need to make separate wills in other countries where he held assets, which the deceased confirmed was in progress.

The deceased died in 2018. Shortly before his death, the deceased contacted his solicitor to request a change to the residuary clause of his will, dividing his estate ‘in the UK (incl Jersey)’ between his children and leaving his estate ‘outside the UK (incl Jersey)’ to his wife. These changes were not made before his death. At first instance, the court held that the will dealt with the Jersey assets and, in the alternative, that the will should be rectified to have that effect. As such the deceased’s children would inherit the Jersey assets as part of the deceased’s residuary estate. The deceased’s wife, who stood to inherit the Jersey assets under a partial intestacy if the will did not deal with them, appealed.

Held – dismissing the appeal:

1. 1) Jersey is not an independent state in international law. The UK government is responsible for its international relations and defence. It is not an EU member. It is not part of the UK as defined by s5 of the Interpretation Act 1978, but is one of the ‘British Islands’. It is not and has never been part of the dictionary definition of ‘the United Kingdom’. However, there are contexts where the UK has been held to encompass the Channel Islands; there was no principle that ‘United Kingdom’ used in a private instrument could not include the Channel Islands, and previous cases illustrated this could be the case (Stoneham v The Ocean Railway and General Accident Insurance Company (1887) applied; The Royal Society v Robinson [2015] approved; Navigators and General Insurance Co Ltd v Ringrose [1962] considered) (paras [12]-[19], [25]).
2. 2) Where one realistic interpretation of a contract would invalidate it and another realistic interpretation would result in it being valid, the latter should be preferred. That principle had a parallel with wills, and the court should try to avoid an interpretation that would result in an intestacy either in whole or in part (Re Harrison (1885) and Barrett v Hammond [2020] applied). In the case of wills the court can take into account extrinsic evidence of the testator’s intention to explain ambiguity under the Administration of Justice Act 1982, s21 (paras [29]-[36]).
3. 3) The Administration of Justice Act 1982, s21(1)(c) allows extrinsic evidence of the testator’s intention to be admissible insofar as evidence, other than evidence of the testator’s intention, showed that the language used in any part of the will was ambiguous in light of the surrounding circumstances. The ‘surrounding circumstances’ include anything relevant to the way in which a reasonable reader would understand the will (except evidence of subjective intention), such as the nature and location of the assets at the date the will was executed, and possibly those at the date of the deceased’s death. In the instant case, the deceased had substantial (albeit different) assets in Jersey at the date of his will and his death.
4. 4) Although it was strongly arguable that the judge should not have admitted evidence of ‘understanding’, the distinction between ‘understanding’ and ‘intention’ is elusive. The objective facts were that the deceased’s family were partly in the UK and partly not, as were the deceased’s assets (in the broad sense of the UK), and these facts could be taken into account when ascribing meaning to the will. It was unlikely that the deceased intended a partial or whole intestacy, and his objective intention must have been to make a will dealing with his Jersey assets. The question of whether the UK included the Channel Islands was a question of construction. The reference to the UK was capable of including and excluding the Channel Islands such that the will was ambiguous in light of the surrounding circumstances, both at the date of execution and at the date of death, such that direct evidence of the testator’s intention was admissible (paras [37]-[42]).
5. 5) The deceased’s intention was beyond doubt: the will could only be reconciled if the UK was intended to include Jersey. There was no other will dealing with the Jersey assets despite the deceased being advised to make wills in other countries to deal with assets in those countries, which he had confirmed was in progress. The deceased confirmed his intention shortly before he died. As such, the interpretation of ‘UK’ in the will included Jersey, and the question of rectification did not arise (paras [43]-[48]).

JUDGMENT LORD JUSTICE LEWISON: Introduction [1] Mr Nicholas Rossiter died on 20 July 2018. At the date of his death he was domiciled in Russia, where Mrs Rossiter his widow lives, and where he had assets. Clause 1 of his will dated 13 June 2013 stated: ‘I confirm that this will only has effect in …

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