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June 20, 2022

Jennison v Jennison and the authority of foreign executors

Jennison v Jennison and the authority of foreign executors

Date updated:

The recent case of Jennison v Jennison [2022] EWHC 792 (Ch) clarified the authority of a foreign executor to bring a claim in England and Wales.

It established that an executor appointed under a foreign Will has the same right to bring a claim as an executor appointed under an English Will, and that there is no requirement for the foreign grant of probate to be resealed in England and Wales before the claim is issued, as long as the resealing takes place before the case is heard.

Grants of probate issued in most Commonwealth countries or territories can be subsequently resealed  by England and Wales probate courts in order to administer assets in this jurisdiction. This avoids the need to obtain a fresh English/Welsh grant of probate from scratch. Once ‘resealed’ (ie stamped with the Probate Registry’s seal), under s2 of the Colonial Probates Act 1892 the foreign grant can be used in exactly the same way as an English/Welsh grant.

This was not in dispute in Jennison v Jennison. The issue was whether the foreign executor could bring a claim in England and Wales before the foreign grant had been resealed. There was no direct authority on this point.

Graham Jennison died in New South Wales (Australia), leaving a Will made in that jurisdiction. His wife Glenda, as the executor, took out a grant of probate in the New South Wales courts.

The deceased owned a piece of land in the UK with his brother as tenants in common. The brother arranged for the land to be transferred in a way that Glenda claimed to be in breach of trust, and she issued proceedings in the UK.

Mr Jennison’s brother and his wife, who had been appointed as second trustee by her husband in the transfer of the land, defended the claim on the basis, among others, that Glenda had no standing to bring a claim because the New South Wales grant had not been resealed when the claim was issued.

The principle that executors derive their authority from the Will itself rather than the grant of probate (Chetty v Chetty [1916]) was applied.

Dismissing the brother’s appeal and confirming the decision of the district judge, the County Court held that there is no need for an English/Welsh grant of probate to be obtained, or for a foreign grant to have been resealed in England and Wales, to prove such authority. The fact that the foreign grant was not resealed in England and Wales before the claim was issued was no bar to the claim, as long as the resealing took place before the court proceedings.

A copy of the judgment can be read here.

For any queries on resealing foreign grants of probate or if you would like further information please contact Raquel Ugalde, Associate Solicitor at raquelugalde@stoneking.co.uk.