Jersey Unreported Judgments

Probate - estate of Ian Graeme Cormack.

[2014]JRC163

Royal Court

(Samedi)

1 September 2014

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Cornu and Olsen

IN THE MATTER OF THE REPRESENTATION OF UNIVERSAL TRUST CORPORATION CONCERNING THE ESTATE OF IAN GRAEME CORMACK

AND IN THE MATTER OF THE PROBATE (JERSEY) LAW 1998

Advocate R. O. B. Gardner for the Representor.

judgment

the commissioner:

1.        On 28^th July, 2014, the Court directed that the terms of the Zimbabwean Will of the late Ian Graeme Cormack ("the deceased") did not revoke his earlier overseas will and we now set out our reasons.  The application raised the not uncommon problem of a will in relation to one part of the estate of a deceased inadvertently purporting to revoke an earlier will in relation to another part of the estate. 

2.        The deceased died domiciled in Zimbabwe on 20^th August, 2012, aged 76.  He was survived by two sisters and the three children (two nephews and one niece) of his late brother. 

3.        On 28^th April, 1989, he executed a will in relation to his movable and immovable estate situate outside Zimbabwe ("the Overseas Will").  The beneficiaries of his Overseas Will today are his two sisters in equal shares.  In the Overseas Will, the deceased appointed Barclaytrust International Limited as executor and trustee.  It contained the following revocation clause:-

"I HEREBY REVOKE all former Wills and testamentary dispositions heretofore made by me relating solely to my Overseas Estate and I DECLARE that this Will shall take effect concurrently with and independently of any other Will I may have made or may hereafter make relating to my estate situate in Zimbabwe."

4.        By a first codicil relating solely to his estate outside Zimbabwe, the deceased appointed the representor as executor and trustee of his overseas estate. 

5.        On 24^th February, 2010, the deceased executed a will in relation to his Zimbabwean estate ("the Zimbabwean Will").  He appointed a Zimbabwean firm of legal practitioners as executors.  The Zimbabwean Will contained the following introductory clauses:-

"I, the undersigned IAN GRAEME CORMACK, (born on 10th October 1935) presently of Mutare, Zimbabwe where I am domiciled hereby declare this to be my Last Will and testament for my Zimbabwean estate only.

I REVOKE all previous testamentary dispositions made by me."

6.        Having made three pecuniary bequests the deceased's Zimbabwean Will then went on to bequeath the rest and residue of his "Zimbabwean estate" as to one ninth between to each of the two nephews and one niece and as to one third to each of his two sisters.  

7.        At the date of his death, the estate of the deceased outside Zimbabwe comprised various bank accounts and investments of modest value held with Barclays Bank Plc in the Island of Jersey. 

8.        The issue arose as to whether by the first clause of the Zimbabwean Will the deceased had revoked his Overseas Will, resulting in his having died intestate in relation to his overseas estate.  The beneficiaries of both wills had been consulted and, with one exception, had written to the Court supporting the application for a direction that he had not done so. 

9.        One beneficiary, his nephew Garrick Cormack, had neither approved nor rejected the application.  The representor's understanding is that his occupation requires him to travel internationally within Africa and outside Africa.  On 5^th December, 2013, he did respond to two earlier letters from the Zimbabwean executors in which he said that the deceased had expressed to him in 2010 that he was considering making various alterations to his wills.  It is clear, however, that his any such thoughts were not carried through in the intervening years prior to the death of the deceased and the position remains as set out in the Overseas Will and the Zimbabwean Will.  On 17^th March, 2014, the Zimbabwean executors wrote to Garrick Cormack for a final time, requesting that he respond by return and advising that the application to the Court would proceed in any event; there was no response. 

10.      In the event that the deceased died intestate in relation to his overseas estate, then we were informed that under Zimbabwean law, it would devolve upon his heirs, namely to the children of his late brother as to one third and to his two sisters as to one third each.  Garrick Cormack would therefore benefit by one ninth from the overseas estate.  

11.      The representor produced an affidavit from Anne Eleanor White of the firm of legal practitioners who were appointed executors in Zimbabwe and who drafted the Zimbabwean Will.  Exhibited to her affidavit is the file note she took upon 23^rd February, 2010, for the purpose of taking instructions with regard to the drafting of the Zimbabwean Will.  The note opens as follows:-

"Atten. on Mr I Cormack

Wishes to change Zimbabwean will as his wife has died and brother had died previously"

Having then noted his instructions in relation to the pecuniary bequests and the rest and residue of "his estate in Zimbabwe" the note goes on:-

Enquired if he wished to amend his overseas will and was advised that he was happy with it in its current format."

She confirmed, therefore, that it was not the intention of the deceased to revoke the Overseas Will. 

12.      It is well established that the material or essential validity of a will of movables or of any particular gift of movables contained therein is governed by the law of the testator's domicile at the time of his death, in this case Zimbabwe.  

13.      No affidavit of Zimbabwean law had been produced by the representor in support of the application.  The Court had, however, considered a similar situation in the case of Hawksford Executors Limited re Estate Ivelaw [2013] JRC 188.  Quoting from paragraphs 21-23 of that judgment:-

"19.    The material or essential validity of a will of movables or of any particular gift of movables contained therein is governed by the law of the testator's domicile at the time of his death (see Rule 154 of Dicey 15th Edition).  Rule 159 of Dicey provides:-

'Subject to the Exception hereinafter mentioned, the question whether a will has been revoked depends on the law of the testator's domicile at the date of the alleged act of revocation.'

20.      The Exception is set out at Rule 159 27E-094 as follows:-

'If the alleged act of revocation is the execution of a later will or codicil, the question whether the later instrument revokes the first depends on whether the second instrument is valid in accordance with the foregoing Rules.'

The following commentary is contained at 27-095:-

'A later will or codicil may revoke an earlier will either expressly or by implication.  It may do so expressly, as when the testator says in the later instrument "I hereby revoke all testamentary dispositions heretofore made by me".  In such a case it would seem obvious that the question whether the second instrument revokes the first should be determined by the intrinsic validity of the second will, and this in turn depends upon the Rules already laid down in this chapter, particularly Rule 151 (capacity) and Rules 152 and 153 (formal validity).  However, if one will deals only with property in a foreign country and is made in foreign form, and the other deals only with property in England, the later will does not necessarily revoke the earlier one even if it contains a revocation clause.'

The last sentence, which is relevant to the facts here, cites the following authority:-

'223.    In the estate of Wayland [1951] 2 All E.R. 1041; Re Yahuda's Estate [1956] P.388; Guardian Trust and Executors Co of New Zealand Ltd v Darrock [1973] 2 N.Z.L.R. 143; Re Baldry (deceased) [2004] W.T.L.R. 609(Fam.); In the Estate of Vickers [2011] J.L.R. 712 (Royal Court of Jersey).'

We will refer to some of those authorities shortly, but before doing so, the aid of private international law is unnecessary where the intention of the testator is expressed in a manner which leaves no room for doubt.  Quoting from Cheshire and North's Private International Law (11th edition) page 844:-

'(iv)     Construction

The province of construction is to ascertain the expressed intentions of the testator, ie the meaning which the words of the will, when properly interpreted, convey.  If the intention is expressed in a manner that leaves no room for doubt, the aid of private international law is unnecessary, for the duty of any court, no matter in what country it may sit, is to give effect to the expressed intentions, and, these being clear, there can be no occasion to test the language of the will by reference to any particular legal system.  If, however, the language of the will leaves the intention doubtful, or if it uses expressions which are ambiguous or equivocal or if the testator has failed to provide for certain events which have not been covered by his dispositions, a problem of choice of law arises, for it is essential that the doubtful intention of the testator should be ascertained by reference to rules of construction obtaining in one particular system of law.'"

14.      As in the Hawksford case, we were able to find that it was clear from the face of the Zimbabwean Will that it was not the intention of the deceased to revoke his Overseas Will for the following reasons:-

(i)        In its opening paragraph, the Zimbabwean Will was expressly limited to his estate in Zimbabwe. 

(ii)       The Zimbabwean Will, by its terms, only disposed of his estate in Zimbabwe. 

(iii)      It is unlikely in the extreme that the deceased, who had been careful to make wills dealing with all of his estate, would have wished to die intestate in relation to his overseas estate. 

(iv)      By necessary implication, the revocation clause contained in the Zimbabwean Will was limited to wills relating to his estate in Zimbabwe. 

15.      In the circumstances, and conscious of the limited value of the overseas estate, we did not need to have recourse to private international law, which would have entailed the matter being adjourned for evidence of Zimbabwean law to be adduced.  We were able to make a finding on the face of the Zimbabwean Will.  It was of comfort to the Court, however, that if recourse had to be made to the extrinsic evidence of Anne White it was entirely supportive of this interpretation.  

16.      In view of the fact that Garrick Cormack, whilst having been notified of the application, had not been formally convened, the Court gave its direction that the Zimbabwean Will did not revoke the Overseas Will provisionally upon the Act of Court being served upon him and his having liberty to apply before 8^th August, 2014.  To the best of our knowledge, no such application has been made and therefore the Court's order is now final and binding.  

Authorities

Hawksford Executors Limited re Estate Ivelaw [2013] JRC 188.