This blog post was written by Rebecca Henshaw.
Just before Christmas, the Court of Appeal handed down useful guidance on two issues which will be of interest to practitioners who regularly deal with grants of probate and letters of administration, in both industrial disease settings and elsewhere.
The Court was asked to determine both 1) the standing of foreign executors and 2) the role of CPR 3.10 in correcting claims which have been issued by representatives with no standing.
The background to this case was that the Deceased was domiciled in South Wales, Australia. His widow was appointed his executrix under his will in New South Wales. She sought relief in respect of breaches of trust, claimed to be committed by her brother and sister in law, in connection with land the Deceased owned in England.
In February 2019, the Claimant issued proceedings. The Defence denied that the Probate conferred any jurisdiction to the Claimant regarding the Deceased’s estate. On 25 November 2019, the Grant was resealed by the High Court under the Colonial Probates Act 1892. The Defendants appealed to strike out the proceedings before the claim came on for trial at the County Court, which was dismissed. They appealed this both before the High Court and at the Court of Appeal.
In the first half of the judgment, Lord Justice Newey gives a helpful summary of the standing of foreign personal representatives.
As readers will know, as a matter of domestic law, an executor is considered to gain title as soon as the testator dies, but an administrator acquires title only when letters of administration are granted. An executrix of a will of a person domiciled here, having title from death, need not wait for probate before issuing a claim, albeit that she will have to obtain probate by the time the case comes on for trial in order to prove her title.
However, a grant of representation under the law of a foreign country has no operation of itself in England. A person appointed as an administrator elsewhere than in the United Kingdom is not entitled to bring proceedings in that capacity in England and Wales until the letters of administration have been resealed under the Colonial Probates Act 1892.
The Defendants in this case had appealed this point in the High Court, asking His Honour Judge Pearce to decide whether resealing had a retrospective affect, or whether it must be done before issuing a claim. If it was not retrospective, then the Claimant had no capacity and/or legal standing at the date of issue of the Claim Form and the Claim stood to be struck out as void and a nullity.
The Court of Appeal found that the Colonial Probates Act 1892 did not operate retrospectively.
On appeal, the Claimant argued that the Claim should continue notwithstanding this. The claimant derived her title to the claim against the defendants from the deceased’s will, not from the resealing of the Grant. The claimant needed either to have the Grant resealed or to obtain a grant of probate in this jurisdiction in advance of trial only so that she could prove her title. The Claimant relied on the 1916 case of Chetty v Chetty, in which the Privy Council appears to have found that the executor in that case, who had been domiciled in a territory different from that of the pending proceedings, derived his title and authority from the will. The Court of Appeal agreed.
Before doing so, they paused to consider whether Chetty applied to all foreign executors or only those in jurisdictions which followed the rule that executors acquire their title from the date of the testator’s death. The Court noted that the Privy Council may have assumed that the law of “British India” was the same as that of England and Wales. Back to New South Wales in this case, however, where the law, does not consider an executor who has not obtained probate to have legal title to the testator’s estate. In short, the executor does not gain title on death.
Here the Court looked to Dicey, Morris & Collins on the Conflict of Laws where they state at Rule 156, “any property of the deceased which at the time of his or her death is locally situate in England” “vests automatically in his or her personal representative by virtue of an English grant”. The law of England and Wales is applied to the issue of whether the Claimant acquired title to the deceased’s estate on his death and New South Wales law on the point was immaterial.
The Claimant thus had standing when the claim was issued.
The Court helpfully reviewed CPR 3.10 and asked, had the Claimant no standing to issue the claim when she did, could the Court nevertheless allow the proceedings to continue?
As a reminder, CPR 3.10 is the general power of the court to rectify matters where there has been an error of procedure, as follows:
3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction:
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.
The Court restated the following principles:
- The “wide discretion” conferred by CPR 3.10 cannot be used to validate a nullity;
- CPR 3.10 applies in relation to “an error of procedure such as a failure to comply with a rule or practice direction”;
- CPR 3.10 allows existing proceedings to be regularised, not the creation of valid proceedings;
- It is not, following Stewart J in Kimathi v Foreign and Commonwealth Office (No 2)  EWHC 3005 (QB), “a cure-all for every defect however fundamental, whether or not it is one of law, and whether or not the authorities have previously determined that there is a nullity”
The same conclusion was reached in August by the Privy Council in Jogie v Sealy  UKPC 32. The line of cases culminating in Meerza v Al Baho  EWHC 3154 (Ch), in which Part 3 was used to deal with errors regarding letters of administration “justly” was rejected.
In the case of a claim on behalf of an estate which, at the time of issuing, lacks standing, the claim is “born dead and incapable of being revived.”