[1951] 2 All ER 1041

PROBATE, DIVORCE AND ADMIRALTY DIVISION
PEARCE J

21 NOVEMBER 1951

Will - Revocation - Revocation of foreign will - English will
containing revocation clause - Will expressed to apply only to estate
in England - Revocation of earlier will made in Belgium and disposing
only of property in Belgium.
Probate - Grant - Foreign will disposing only of property abroad -
Administration of Justice Act, 1932 (c 55), s 2(1).

On 6 April 1947, the testator, a British subject domiciled in England
made a will in Brussels in accordance with the law of Belgium. This
will was expressed to deal only with his Belgian property. On 26 July
1949, he made a will in England which contained a revocation clause,
but in which he went on to declare: "... this will is intended to deal
only with my estate in England." When giving instructions for his
English will, he informed the solicitor that he had made a Belgian
will in respect of his Belgian estate, and, before and after making
his English will, he wrote to his Belgian solicitor in regard to the
custody of his Belgian will.

Held - (i) The revocation clause in the English will was intended to
revoke all former wills dealing with English property, and was not
intended to, and did not, revoke the Belgian will.

Dictum of Sir James Hannen P in Dempsey v Lawson (1877) (2 PD 107),
applied.

Collins v Elstone ([1893] P 1), distinguished.

(ii) under the Administration of Justice Act, 1932, s 2(1), the court
had jurisdiction to make a grant of probate notwithstanding that there
was no property in England, and, therefore, probate could be granted
of the Belgian will even though it disposed only of property in
Belgium.
Notes

As to Express Revocation, see Halsbury, Hailsham Edn, Vol 34, p 78,
para 110; and for Cases, see Digest, Vol 44, pp 321-324, Nos 1542-
1559.
Cases referred to in judgment

Gladstone v Tempest (1840), 2 Curt 650, 163 ER 538, Digest Supp.

Dempsey v Lawson (1877), 2 PD 98, 46 LJP 23, 36 LT 515, 41 JP 696, 44
Digest 322, 1544.

Collins v Elstone [1893] P 1, 62 LJP 26, 67 LT 624, 44 Digest 323,
1558.

Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151, 104 LJKB 71, 153
LT 103, Digest Supp.

In the Goods of Tucker (1864), 3 Sw & Tr 585, 34 LJPM & A 29, 164 ER
1402, 23 Digest 82, 703.

In the Goods of Coode (1867), LR 1 P & D 449, 36 LJP & M 129, 16 LT
746, 23 Digest 82, 708.
Motion

Motion by the executors of Sir William Wayland for the revocation of a
grant of probate of an English will, dated 26 July 1949, and a codicil
thereto, and for a fresh grant of probate of two Belgian wills, dated
6 April 1947, and of the English will and codicil.

The Belgian wills, which were made in accordance with the law of
Belgium, dealt only with the testator's Belgian property. There was a
revocation clause at the beginning of the English will, but the
testator went on to declare that the will was intended to deal only
with his estate in England. The applicants claimed that the revocation
clause in the English will did not operate to revoke the Belgian
wills, and that, under the Administration of Justice Act, 1932, s
2(1),
[1951] 2 All ER 1041 at 1042

probate could be granted of the Belgian wills even though they
disposed only of property in Belgium.

Simon KC for the applicants.
21 November 1951. The following judgment was delivered.

PEARCE J.

The testator made five testamentary dispositions. The first was a will
made on 6 April 1947, in Brussels. This was expressed to deal only
with his Belgian property and was made in accordance with the law of
Belgium with the help of a Belgian lawyer. Being made by a British
subject domiciled in England, it would be admissible to probate under
the Wills Act, 1861, s 1, unless it was revoked and unless the fact
that it did not deal with any property in England prevented the making
of a grant. That will remained in the custody of the Belgian lawyer.
Secondly, on the same day the deceased made a copy of that will in his
own handwriting in the presence of his attorney. According to the law
of Belgium, that copy is also a good will, and, therefore, it too
would be admissible to probate. The testator kept that copy and it was
found in his desk after his death. Thirdly, he made a codicil to his
Belgian will dated 27 October 1948. That codicil was written on
English paper in the testator's handwriting and was found among his
papers after his death. Had it been written in Belgium it would have
been valid. As, however, it was presumably not written in Belgium, it
is not valid according to Belgian law. It is not valid by English law
since it is not witnessed, and, therefore, it may be disregarded.
Fourthly, he made a will dated 26 July 1949, which expressly provides
that it shall only relate to property in England. That will contains a
revocation clause. Fifthly, he executed a codicil to his English will.

Two questions arise: (a) whether the Belgian wills are revoked by the
English will; (b) whether there is any power to admit the Belgian
wills to probate in England since they do not dispose of any English
property. The estate consists of property to the value of about £3,000
in Belgium and to the value of about £64,000 in England. If the
executors do not obtain a grant of the Belgian wills in England, under
the law of Belgium duty becomes payable on the whole of the testator's
estate including the £64,000 in England. That duty would largely
exceed the amount of the Belgian assets. The practical effect would be
that the executors would have to abandon the Belgian property since,
if they tried to deal with it, the taxes would far exceed its value.
This result would be unfair, and if a grant can properly be made it is
right to make it.

On 20 July 1949, a few days before the testator made his English will,
he wrote to his Belgian lawyer making provision for the future custody
of his Belgian will. By a letter of 10 August 1949, shortly after the
execution of the English will, he wrote to his Belgian lawyer saying:
"I note you will take charge of my will which Collette drew out for
me"-i.e., his original Belgian will. When he was giving instructions
in England for his English will his solicitor asked him what should be
done about the Belgian estate. He answered: "Don't worry about that.
My Belgian lawyer will take care of it as I have made a Belgian will."
It is clear to me from those circumstances that the testator was
unaware that the revocation clause in his English will might operate
to revoke the Belgian wills and that he did not intend it so to do.

In Gladstone v Tempest cheques written in 1833 by the deceased on his
bankers, but not intended to have effect until after his death, were
pronounced for as part of the testamentary disposition of the
deceased, although in 1834 he had formally executed a will disposing
of the whole of his property and containing a full clause of
revocation. In his judgment Sir Herbert Jenner said (2 Curt 653):

    "But it has been over and over again laid down that probate of a
paper may be granted of a date prior to a will a revocatory clause,
provided the court is satisfied that it was not the deceased's
intention to revoke that particular legacy or benefit."

[1951] 2 All ER 1041 at 1043

In Dempsey v Lawson Sir James Hannen P said (2 PD 107):

    "Even if the second instrument contains a general revocatory
clause, that is not conclusive, and the court will, notwithstanding,
consider whether it was the intention of the testator to revoke a
bequest contained in a previous will."

Collins v Elstone is to a different effect. In that case the testatrix
had inserted a revocation clause in a mistaken belief that it would
not revoke a former will and it was there held by Sir Francis Jeune P
that he was unable to allow the earlier will to stand. In Lowthorpe-
Lutwidge v Lowthorpe-Lutwidge Langton J in dealing with the question
whether a general revocatory clause revoked an earlier testamentary
exercise of a power of appointment, found, on the facts of that case,
that it did so revoke it. Dealing with Collins v Elstone, he said
([1935] P 156):

    "I need not, perhaps, refer to Collins v. Elstone, a decision of
LORD ST. HELIER in which he refused entirely to allow words of
revocation to be, as it were, erased, even though the testatrix had
been specifically advised that they meant something different from
what they really did. If it is necessary to make any distinction, it
may be said that that case was more a statement of law than of fact.
It really is a question in each case for the court to decide: Is there
evidence, and sufficient evidence, to establish that the testator did
not intend to revoke? I do not think really the law is more
complicated than that."

Langton J then said that a strong burden was on the person asserting
that the clause of revocation did not in fact revoke all previous
testamentary dispositions.

Counsel for the applicants argues that it matters not how heavy the
burden on him is, since the facts of this case make it clear that the
testator was not intending to revoke his Belgian wills. I agree.
Moreover, this revocation clause is different from that in Collins v
Elstone. It comes at the beginning of the will and in the next line
but one the testator says:

    "I declare that my domicil is England and that this will is
intended to deal only with my estate in England."

If the revocation clause is read to mean: "I revoke all former wills
dealing with English property," it is consistent with the later words
"this will is intended to deal only with my estate in England." If it
is read as revoking the Belgian wills, then the English will would
deal with estate other than his estate in England, and the provisions
would be inconsistent. In my view, the former is the right
construction. The surrounding circumstances leave me in no doubt that
that is the construction which the testator intended.

There remains the question whether I can admit the Belgian wills to
probate. Before 1932 there is no doubt that this court would not have
admitted them to probate. In In the Goods of Tucker the deceased had
died in France, leaving personal estate there, but none in England.
The headnote reads:

    "... it was alleged, that by the law of France her husband, from
whom she had eloped, could not establish his claim to her property
there without a grant from this court-Held, that the court had no
jurisdiction to make a limited grant to enable him to substantiate his
claim to the property in the courts of France."

In his judgment Sir James Wilde said (3 Sw & Tr 586):

    "The foundation of the jurisdiction of this court is, that there
is personal property of the deceased to be distributed within its
jurisdiction. In this case, the deceased had no property within this
country, and the court has therefore no jurisdiction."

[1951] 2 All ER 1041 at 1044

In In the Goods of Coode Sir James Wilde held to the same effect, and
for the same reasons, that this court could not make a grant where
there was no property within its jurisdiction.

The Administration of Justice Act, 1932, s 2(1), provides:

    "Notwithstanding anything in s. 20 or any other of the provision
of the [Supreme Court of Judicature (Consolidation) Act, 1925], the
High Court shall have jurisdiction to make a grant of probate or
administration in respect of a deceased person notwithstanding that
the deceased person left no estate."

Counsel for the applicants has argued that, since the passing of that
Act, the ratio decidendi of In the Goods of Tucker and In the Goods of
Coode has disappeared and that this court is entitled to make a grant
of probate even though it is of a will under which no property passes
in this country. In Dicey's Conflict of Laws, 6th ed, p 301, this is
evidently regarded as being the case, as it is there stated, under the
heading "Administration":

    "The court has jurisdiction to make a grant in respect of the
property of a deceased person, either (i) where such property is
locally situate in England at the time of his death; or (ii) where
such property has, or the proceeds thereof have, become locally
situate in England at any time since his death; but the circumstance
that the deceased left no property whatsoever in England is not by
itself a bar to a grant."

In support of the concluding words, the Administration of Justice Act,
1932, s 2(1) is cited. Among the illustrations given under that
heading is the following (ibid, 310):

    "The wife of an Englishman residing and domiciled in England is
separated from him and living in France. She dies there intestate,
leaving movables in France, but leaving no property in England. The
husband cannot establish his claim in France to her property without
an English grant. The court has jurisdiction to make a grant
notwithstanding that there is no property in England."

The footnote to that illustration says:

    "Administration of Justice Act, 1932, s. 2(1). For the position
before the Act, see In the Goods of Tucker."

I think that that is correct and that I am, by virtue of the Act,
entitled to make a grant in respect of the Belgian wills. Since the
making of a grant will obviate an injustice to the estate in respect
of the Belgian property, it is proper that a grant should be made.
There will, therefore, be a revocation of the grant in respect of the
English will and codicil and there will be a grant in respect of the
two Belgian wills, the English will and the English codicil.

Order accordingly.

Solicitors: Field, Roscoe & Co agents for Hallett & Co, Ashford, Kent
(for the applicants).

A T Hoolahan Esq Barrister.