27 September 2013

Representation of Hawksford Executors Limited Re the Estate of Florence Ivelaw

The Royal Court recently allowed a will to be admitted to probate notwithstanding that the testator had included a general express revocation clause in a later will. The case is of interest because it extends the circumstances for which the Jersey Court will grant relief from the consequences of the inadvertent revocation of a will and confirms the tenacity of a domicile of origin.

Facts

Florence May Ivelaw (“Mrs Ivelaw”) and her husband Philip Ivelaw (“Mr Ivelaw”) each had a domicile of origin of England & Wales. The couple moved to Belgium in the 1960’s when Mr Ivelaw left the RAF to take up a position of employment and remained there following Mr Ivelaw’s retirement. Mr Ivelaw died in June 2006. Mrs Ivelaw died in October 2009. They had no children.
 
Mr and Mrs Ivelaw owned substantial movable property in Jersey. On 14 July 2000 they executed new wills (the “Worldwide Wills”), which were each expressed to relate solely to their estate situated outside Belgium. Under each will they left their property situated outside of Belgium to each other or failing each other to three well known charities based in the United Kingdom (the “Three Charities”) represented by Withers LLP.
 
Following Mr Ivelaw’s death, it came to light that Mrs Ivelaw had made a holograph will on 14 June 2008 (her “Belgian Will”) which purported to revoke all previous wills made by her. Whilst the Belgian Will listed various property owned by Mrs Ivelaw in Belgium only, it was not expressly limited to her estate situated in that jurisdiction. The Belgian Will named eight beneficiaries none of whom were the Three Charities (the “Belgian Heirs”).
 
Hawksford Executors Limited (“Hawksford”), the executor company named in Mrs Ivelaw’s Worldwide Will, issued a representation asking the Royal Court to determine that
notwithstanding the terms of her Belgian Will, Mrs Ivelaw had not intended to revoke her Worldwide Will. The Belgian Heirs were given advance notice of the representation and each of them wrote to the Royal Court to confirm that they did not object to the orders sought by Hawksford. The Belgian tax authority also agreed to assess Mrs Ivelaw’s property situated within Belgium and outside of Belgium to tax separately from one another in the event that Hawksford’s application was successful.

Clear intention

The Royal Court was content that on the face of the Belgian Will, Mrs Ivelaw’s clear intention was that the Belgian Will should extend only to her property situated in Belgium and that the revocation clause contained in the Belgian Will should operate only to revoke previous wills dealing with her Belgian situs property. This, it said, could have disposed of the matter.
 
Nevertheless, it went on to consider the applicable foreign law regarding the inadvertent revocation of a will and whether Mrs Ivelaw had lost her domicile of origin of England & Wales and acquired a domicile of choice in Belgium.

Inadvertent revocation

A Belgian lawyer retained by the Three Charities had advised that Belgian law does not recognise the concept of inadvertent revocation of a will. However under English law, it has long been the case that where there is an express revocation clause in a will, this is a strong indication of an intention to revoke all previous testamentary instruments save where there is a contrary intention or the revocation clause is inserted by mistake. A general revocation clause in a will concerning property in one country may not be intended to revoke a will concerning property in another. The English Court will therefore look beyond the stark terms of a will to the surrounding circumstances to determine whether a contrary intention exists. These English law principles have been applied by the Jersey Court in the past (see In re Vickers [2001] JLR 712, the sole reported Jersey case on the point).

Domicile

As a matter of Jersey law, the English law rules would be applied by the Jersey Court provided that Mrs Ivelaw had not lost her English domicile of origin by or before June 2008, when she made her Belgian Will. For this reason, Hawksford and Withers LLP's team led by Paul Hewitt amassed and adduced evidence to show that whilst Mrs Ivelaw had lived in Belgium for in excess of thirty years, she had not acquired a Belgian passport, did not speak French with any fluency and had retained the vast majority of her property in pounds sterling in bank accounts opened in English speaking countries. She maintained a circle of friends in the United Kingdom, all of whom she visited frequently, and described herself in her correspondence as an expatriate living in Belgium.
 
The Court was satisfied on the basis of this evidence that Mrs Ivelaw “had not broken free from the tenacious hold of her domicile of origin and acquired a domicile of choice in Belgium”.

Decision

Applying English law, the law of Mrs Ivelaw’s domicile in June 2008, the Royal Court found that there was ‘strong and compelling evidence’ to indicate that Mrs Ivelaw did not intend to revoke her Worldwide Will when she made the Belgian Will. It had ‘no difficulty in finding Mrs Ivelaw had not intended to revoke her Worldwide Will when she made the Belgian Will’ and gave directions accordingly.

Conclusion

This judgment is to be welcomed, not least by the Three Charities each of whom will now take an equal share of Mrs Ivelaw’s net movable estate situated outside of Belgium, as a pragmatic and sensible decision. The Royal Court has also gone a little further than it did the earlier case of In re Vickers, in that the Belgian Will, unlike the second, later will in the case of In re Vickers, did not contain any express limitations on its jurisdiction.
 

Please note that this briefing is only intended to provide a very general overview of the matters to which it relates. It is not intended as legal advice and should not be relied on as such.

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