Court & Ors v Despallieres

Peter Ikin (“the Deceased”) was a successful executive in the music industry who had retired prior to the events relevant to these proceedings. He was born, and originally domiciled in, New South Wales in Australia. At the time of his death he owned properties in both London and Sydney, and had substantial assets in Jersey, the Isle of Man and Switzerland.

On 9 May 2002 the Deceased made a will (“the 2002 Will”) by which he declared that he was domiciled in New South Wales, appointed the First Claimant (his Australian solicitor) and the Second Claimant (his Australian chartered accountant) as his executors and left his estate to the Third Claimant (his nephew), various friends, two goddaughters and three Australian charities.

By about April or May 2008 the Deceased was in a personal relationship with the Defendant. According to the Defendant, on 7 August 2008 the Deceased made a will (“the 2008 Will”), the material provisions of which were as follows:

“I the undersigned Peter Anthony Ikin do by the present:

1.

REVOKE all former Wills and Testamentary dispositions heretofore made by me AND DECLARE this to be my irrevocable last Will and Testament.

2.

DIRECT that this, my last Will and Testament shall not be revoked by neither subsequent marriage, Civil Union Partnership nor adoption.

3.

DECLARE that my country of domicile is the United Kingdom.

4.

GIVE AND BEQUEATH to ALEXANDRE RENAUD MARCEL DESPALLIERES the entirety of my estate as a sole beneficiary.”

On 10 October 2008 the Deceased and the Defendant entered into a civil partnership (“the Civil Partnership”).

On 12 November 2008 the Deceased unexpectedly died.

On 27 February 2009 the Defendant obtained a grant of letters of administration with will annexed from the District Probate Registry at Brighton (“the Grant”) on the basis of a photocopy of the 2008 Will, the original of which was said to have been stolen from the Deceased’s London flat very shortly after the death of the Deceased. In reliance upon the Grant, the Defendant obtained a grant of probate of the movable estate situate in Jersey on 7 April 2009 and a grant of letters of administration with will annexed in the Isle of Man on 14 April 2009.

In these proceedings the First, Second and Third Claimants (“the Probate Claimants”) contend inter alia that (i) that the 2008 Will is a forgery and not a will of the Deceased, (ii) the Deceased remained domiciled in New South Wales at the time of his death and (iii) the 2002 Will is the Deceased’s last valid will. The Probate Claimants also contend, however, that even if (a) the 2008 Will is genuine and (b) the Deceased was domiciled in England and Wales at the time of his death, the 2008 Will was revoked as a consequence of the Civil Partnership by virtue of section 18B(1) of the Wills Act 1837. In paragraph 23(3) of his Defence, the Defendant pleads that the 2008 Will was not revoked by the Civil Partnership as clause 2 “was sufficient as a matter of law to prevent revocation pursuant to section 18B(3) of the Wills Act 1837”.

The Probate Claimants have applied for summary judgment on the issue of law raised by paragraph 23(3) of the Defence. The Probate Claimants accept that, for the purposes of determining that issue of law (but only for that purpose) it should be assumed that (a) the 2008 Will is genuine and (b) the Deceased was domiciled in England and Wales at the time of his death. They also accept that it should be assumed that (c) as at 7 August 2008 the Deceased was intending to enter into a civil partnership with the Defendant.

Counsel for the Defendant submitted that the issue of law was not suitable for summary determination, because it required too many assumptions to be made and might turn out to be a pointless exercise. He was constrained to accept during the course of argument, however, that, if the issue of law was decided in favour of the Claimants, then the Grant would have to be revoked. This is because the Grant is predicated upon the correctness of assumptions (a) and (b) set out above, and hence upon the correctness of the plea advanced in paragraph 23(3) of the Defence.

Section 18B of the Wills Act 1837 was inserted by section 71 and Schedule 4 Part 1 paragraphs 1, 2 and 5 of the Civil Partnership Act 2004. It contains provisions with regard to the effect of civil partnership upon a prior will which parallel those with regard to the effect of marriage contained in section 18 of the 1837 Act as substituted by section 18(1) of the Administration of Justice Act 1982. For present purposes, the only provisions of section 18B that are relevant are subsections (1) and (3). These state:

“(1)

Subject to subsections (2) to (6), a will is revoked by the formation of a civil partnership between the testator and another person.

(3)

If it appears from a will-

(a)

that at the time it was made the testator was expecting to form a civil partnership with a particular person, and

(b)

that he intended that the will should not revoked by the formation of the civil partnership,

the will is not revoked by its formation.”

Counsel for the Probate Claimants submitted that section 18B(3) requires that it appear from the language of the will in question that the testator expected to form a civil partnership with a particular person and intended that the will should not be revoked by that marriage. I accept that submission, which is supported not merely by the wording of the subsection, but also by paragraphs 3.16 and 3.18 of the Law Reform Committee’s 22^nd Report on The Making and Revocation of Wills (Cmnd 7902, 1980), which led to the amendments to section 18 of the 1837 Act made in 1982, and by Williams on Wills (9^th edition, 2008) at 17.6.

Counsel for the Probate Claimants further submitted that clause 2 of the 2008 Will did not satisfy the requirements of section 18B(3), since it was merely a general statement that the 2008 Will was intended to survive marriage, civil partnership or adoption: it did not show that the Deceased expected to form a civil partnership, let alone with a particular person. Counsel for the Defendant submitted that clause 2 was sufficient, at least if read together with clause 4, which makes the Defendant the sole beneficiary. In my judgment counsel for the Probate Claimants is correct. Clause 2 does not satisfy the requirements of section 18B(3) for the reason stated above. Clause 4 does not help, because there is nothing in the Will to indicate that there is any connection between clause 2 and clause 4.

Accordingly, I determine the issue of law in favour of the Probate Claimants. It follows that the Grant must be revoked. In those circumstances it would seem appropriate to appoint an administrator of the Deceased’s English estate pursuant to section 117 of the Senior Courts Act 1981, but I will hear argument as to consequential orders if they cannot be agreed.