Dellar v Zivy & Ors

A will is interpreted according to the law intended by the testator. The law of the testator’s domicile when the will was made is presumed to apply, but the presumption may be displaced by the will’s terms and surrounding circumstances. This question must be distinguished from the will’s material or essential validity, which, for movables, is governed by the law of the testator’s domicile at death. Where a will is plainly drafted in English legal form and uses institutions peculiar to English law, those features may establish an intention that English law govern its interpretation. A forum will be clearly appropriate where the substantive dispute can be determined speedily and without foreign-law evidence, notwithstanding that foreign proceedings were commenced first.

The claimant, an executor, sought declarations concerning the construction of the deceased’s will and the entitlement to proceeds representing shares in a French property-holding company. The second to fourth defendants claimed that the shares passed to them under French law and challenged the English proceedings on forum and service-out grounds. Proceedings concerning the same dispute were pending in France, where the Court of Appeal had deferred determination pending the English court’s decision. The issues were the applicable law for interpreting the will, the construction of its residuary provisions, the appropriate forum, and whether permission to serve out should be set aside for material non-disclosure.

1. Applicable law. The will was to be interpreted according to the law intended by the deceased. Although the law of the domicile when the will was made was presumed applicable, the presumption was rebutted. The will was made in England by English solicitors, recorded an English domicile, appointed an English solicitor as executor, used an English trust for sale, referred to the statutory power of appropriation, and directed the employment of English solicitors. These features made it clear that English law governed interpretation.
2. The court distinguished interpretation from material or essential validity. For movables, validity was governed by the law of the testator’s domicile at death. Philipson-Stow and Re Levick concerned the statutory expression governing devolution in the context of estate duty and did not establish that interpretation of a will depended on domicile at death.
3. Construction. The French company shares fell within the residuary estate. The gift of the residuary estate to the first defendant under clause 6(a) took effect because she survived the deceased by 56 days. Clause 6(b), being subject to clause 6(a), did not operate. The first defendant was therefore entitled to the shares or their proceeds.
4. Forum. Applying The Spiliada, England was clearly the most appropriate forum. The dispute concerned an English will, could be decided summarily under English law without French-law evidence, and had its most real and substantial connection with England. The fact that the French court was first seised was significant but not decisive. The stay or strike-out application was dismissed.
5. Service out. The claimant had failed to disclose the dispute and factual allegations concerning the deceased’s domicile in the French proceedings. This was wrongful non-disclosure and should have been disclosed. Nevertheless, setting aside permission would add unnecessary complexity and conflict with the overriding objective. The permission remained in force, with the issue addressed through costs.