Glenda Joy Jennison v Richard Henry Jennison & Anor.

A foreign executor named in the will of a testator domiciled abroad may acquire title under English law to estate assets situated in England and Wales from the testator’s death. The executor may therefore commence proceedings here before obtaining an English grant or resealing a foreign grant, provided that title can be proved by the time of trial.

Resealing under section 2 of the Colonial Probates Act 1892 operates prospectively from the date of resealing. It does not retrospectively validate earlier acts. Proceedings commenced by a person who genuinely lacks representative standing are a nullity, rather than a procedural irregularity, and cannot be validated under rule 3.10 of the Civil Procedure Rules 1998.

The claimant was appointed sole executrix by the will of her husband, who died domiciled in New South Wales. She obtained probate there and later commenced English proceedings concerning alleged breaches of trust over English land. Her New South Wales grant was not resealed under the Colonial Probates Act 1892 until after the proceedings had begun, but before trial.

The defendants contended that the claimant lacked standing when the claim was issued and that the proceedings were consequently a nullity. District Judge Carter rejected that contention and entered judgment for the claimant after trial. His Honour Judge Pearce dismissed the defendants’ procedural appeal in [2022] EWHC 792 (Ch).

The Court of Appeal addressed whether the claimant had acquired title sufficient to sue before resealing, whether resealing operated retrospectively, and whether rule 3.10 of the Civil Procedure Rules 1998 could validate proceedings issued without representative standing.

1. The appeal was dismissed. The claimant had standing when she issued the claim. Under English domestic law, an executor derives title from the will and acquires title on the testator’s death. Probate is nevertheless required by trial as the means of proving that title. An administrator, by contrast, derives title from the grant, so proceedings issued before letters of administration are granted are a nullity.

2. A foreign grant of representation has no force of itself in England and Wales. The administration of assets is governed by the law of the country from which the personal representative derives authority to collect them. The claimant derived her authority to collect the English assets from this jurisdiction. English law therefore determined whether she acquired title to the English cause of action, notwithstanding that New South Wales law vested the estate in the NSW Trustee until probate.

3. The court followed Chetty v Chetty [1916] AC 604. A foreign executor named in the will is treated as acquiring title on death and may institute English proceedings before obtaining an English grant or resealing. The executor must obtain the necessary grant or resealing by trial to prove title. The probate-duty decisions in Attorney-General v New York Breweries Co Ltd did not establish that a foreign executor lacked all title or authority before an English grant.

4. Resealing under section 2 of the Colonial Probates Act 1892 is prospective. The word “thereupon” means upon resealing being completed and does not confer retrospective effect. The statutory language and the related resealing legislation supported the conclusion that resealing operates only from its date.

5. Had the claimant lacked standing, rule 3.10 of the Civil Procedure Rules 1998 could not have saved the claim. The rule regularises errors within existing proceedings; it cannot create valid proceedings from a nullity. A claim commenced on behalf of an estate by someone without representative standing is not merely procedurally irregular and must be struck out.

1. Court of Appeal (Civil Division): Dismissed the defendants’ appeal in [2022] EWCA Civ 1682. The claimant had standing when the proceedings were issued.
2. County Court at Manchester, His Honour Judge Pearce: Dismissed the defendants’ appeal from the ruling on their strike-out and summary-judgment application: [2022] EWHC 792 (Ch).
3. County Court at Manchester, District Judge Carter: Dismissed the defendants’ strike-out and summary-judgment application, then entered judgment for the claimant after trial. The separate appeal concerning the substantive judgment was not before the Court of Appeal.