Jennison v Jennison – a win for foreign executors dealing with English assets

In the recent case of Jennison v Jennison [2022] EWCA Civ 1682, the English Court of Appeal (EWCA) ruled on the standing of an executor appointed under a foreign will to issue proceedings in the English courts before obtaining an English grant of probate or an English reseal of a foreign grant. 

The facts 

The claimant (Mrs Jennison) issued proceedings in the English courts for breaches of trust relating to English land comprised in her husband’s (the Deceased) estate, 10 years after a grant of probate (the Grant) had been issued in her favour in New South Wales, Australia (NSW). The Grant was resealed in England after the proceedings were issued, but before trial. The defendants contested that foreign probate conferred no jurisdiction over the Deceased’s English assets and that the claim was therefore null and void. 

Issues for the EWCA

The EWCA considered:

1. Whether resealing a foreign grant of probate had retrospective effect; and
2. Whether Mrs Jennison’s title to the claim derived from her appointment as executor under the foreign will.

The EWCA also considered whether CPR Part 3.10 could be used to validate a nullity, but this is not discussed further.

Commentary

On the first issue the EWCA concluded that a reseal of a foreign grant of probate did not have retrospective effect, and therefore only operates from the date of the resealing. In this case, a retrospective reseal would mean that the claim could not be null and void as resealing the Grant would have applied retrospectively back to the date proceedings were issued.

On the second issue, the EWCA applied the longstanding rule in Chetty v Chetty [1916] that, under English law, an executor’s title derives from the testator’s appointment by will, and not from the grant of probate, the latter only being a necessary mechanism to prove title. The EWCA explored whether this applied to all foreign executors or only in circumstances where, as is the case under English law, the law of the testator’s domicile provides that the executor’s title derives from the will. NSW law differs to English law and an executor’s title derives from probate, not the will. However, the EWCA confirmed that English law could diverge from NSW law and found in favour of Mrs Jennison ruling that, in spite of the Grant, her title to the Deceased’s English assets was governed by English law, and therefore her title derived from the Deceased’s will.

This case demonstrates that foreign executors of a foreign will dealing with English assets are entitled to bring claims in the English courts irrespective of whether an English grant has been issued, or a foreign grant resealed, albeit that such a grant will be necessary in order to prove title.