Clarke-Sullivan v Clarke-Sullivan

An application under Administration of Justice Act 1985, section 48 is confined to clear construction questions where the statutory conditions are met. It is inappropriate where a dispute requires argument.

The essential validity of a will is distinct from its construction. Construction is ordinarily governed by the law intended by the testator, presumed to be the law of the testator’s domicile when the will was made. Foreign law must be established by credible expert evidence.

The claimant, executor and widower of the deceased, sought permission under section 48 of the Administration of Justice Act 1985 to distribute the deceased’s residuary estate in accordance with counsel’s opinion. The will referred to trustees of a New Zealand discretionary trust created by a 2014 deed, which had been wound up during the testator’s lifetime.

The claimant argued that the gift remained effective as a testamentary trust incorporating the deed’s terms. The defendant was the deceased’s young daughter. The central issues were whether the section 48 procedure was available, which law governed construction, and whether the evidence established the relevant New Zealand law.

1. Section 48 procedure. The claim in its existing form could not succeed because the statutory condition in section 48(1)(b) of the Administration of Justice Act 1985 was not met. The procedure is intended for clear cases and cannot be used to obtain a binding determination of a disputed construction issue without argument. It is confined to construction and does not extend to rectification: Greenwold v Pike [2007] EWHC 2202 (Ch).
2. Applicable law. The issue was one of interpretation, not material or essential validity. Questions of construction are governed by the legal system intended by the testator, presumed to be the law of the testator’s domicile when the will was made. Section 4 of the Wills Act 1963 prevents a later change of domicile from altering construction.
3. Foreign law. The initial evidence of New Zealand law was not credible or reliable because it lacked authority, reasoning and proper expert compliance. A later report from a suitably qualified New Zealand lawyer provided sufficient basis for concluding that New Zealand law would construe the will as creating a testamentary trust incorporating the earlier trust deed.
4. Disposition. The court was willing to permit amendment of the claim form to seek declarations that New Zealand law governed construction and that the estate was held on testamentary trust on the proposed terms. The parties were invited to agree amendments and file a draft order.