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Insights / News
The appeal relates to an important point in the Conflict of Laws as it relates to the administration of estates, namely whether the executor of a person who died domiciled abroad but owning property in England & Wales can commence proceedings on behalf of the estate before obtaining an English probate (or the resealing of the overseas grant).
By Appellants Notice filed on 25 April 2022, the First and Second Defendants are appealing the three findings at paragraph 65 of the judgment of, and paragraph 1 of the order of HHJ Pearce in April 2022.
The Claimant had issued a Part 7 claim on 18 February 2019 against the First Defendant (the deceased’s brother) and Second Defendant (his wife) for declaratory relief and enquiries, together with an order for sale and for compensation, on account of the Defendant’s alleged breach of trust in dealing with land near Church Street, Sheffield which was co-owned by the two brothers.
The deceased died domiciled in New South Wales. Probate was granted to the claimant in NSW in 2008, but the probate was only resealed in England & Wales after the proceedings had been issued in February 2019.
The Defendants applied to strike out the claim on the grounds that it had no reasonable chance of success, there being no cause of action vested in the claimant when the claim form was issued.
On a first appeal from the decision of the District Judge, HHJ Pearce found:
“On the first issue, the proceedings were not as a matter of law improperly brought, since it sufficed for the proper constitution of the proceedings that the Claimant was an executor who had her probate re-sealed in the English Courts prior to trial;
If I am wrong on the first issue, the proceedings are not, as a matter of law, an incurable nullity, but rather the court may permit them to continue, waiving any defect pursuant to the power in CPR 3.10;
Any criticism of the exercise by Judge Carter of the power under CPR 3.10 to cure any procedural defect is unsustainable.”
Read the full judgment by HHJ Pearce dated 4 April 2022, sitting in Manchester County Court here.
The appeal is set to be heard in the Court of Appeal on Thursday 1st December 2022. Most cases from the Court of Appeal (Civil Division) are live-streamed on the judiciary’s YouTube channel. Live-streaming of selected cases began in 2019 to improve public access to, and understanding of, the work of the courts.
Watch Jennison (claimant/respondent) v Jennison & anr (defendants/appellants) live from 10am here.
Philip Stear’s practice involves the interaction of commercial trusts, insolvency, contract law, and disputes arising in relation to occupational pension schemes. He practised as solicitor before joining the Bar and was also a Lecturer in Law at the University of Bristol (specialising in the law of contract and the law of trusts). He maintains a wide and deep knowledge of the broader legal landscape, particularly in relation to property law (whether concerning trusts, land law, unincorporated associations or charities) and contract law. Clients prize him as a solution-oriented lateral thinker able to find ways to unlock the knottiest problems.
News 30 Nov, 2022