Foreign Executors In English Proceedings

Jennison v Jennison

Case background 

In the case of Jennison v Jennison [2022], Graham Jennison lived and died in New South Wales, Australia where he created a Will appointing his wife Glenda as Executrix.

Graham’s Estate consisted of properties in both New South Wales and England. He purchased land with his brother, Richard (First Defendant) in Wales which they held as tenants in common. Following Graham’s death his 50% share in the land fell into his Estate but Richard and Gwyneth (Second Defendant) carried out various transactions in relation to the land and so Glenda brought proceedings for relief of various alleged breaches of Trust in the County Court at Manchester.

At the time Glenda issued proceedings she had obtained a grant of probate in New South Wales but had failed to get the grant re-sealed in England pursuant to the Colonial Probates Act 1892 prior to issuing proceedings in the County Court at Manchester.

The defendants applied for the case to be dismissed on the grounds that Glenda did not have standing as a foreign executor to bring proceedings in England and Wales as the grant had not been re-sealed prior to issuing proceedings. The Court of Appeal rejected this claim.

In England an executor is not required to have a grant of probate before issuing proceedings due to an executor deriving title under the testator’s Will. A grant of probate is only required by an executor to prove their title prior to the trial of any claim. Therefore, in this case, Glenda, as a foreign executor, was not required to have the grant of probate re-sealed prior to issuing proceedings. The grant, however, was re-sealed some months before the case went to trial.

Resealing of a grant in England and Wales

The resealing of a grant is the effective reissuing of a foreign grant of probate for the purposes of administering an Estate in England and Wales.

The resealing of a grant in England and Wales is required where a grant of probate has been taken out in a country to which the Colonial Probates Act 1892 applies. This avoids the executor or personal representative having to take out a whole new grant of probate in England and Wales as well as the country in which the Will was executed in order to save time and money.

The countries included in the Act are:

The procedure for resealing foreign probates in England and Wales is governed by rule 39 of The Non- Contentious Probate Rules 1987. The rules state the following:

To conclude, it is possible for a foreign executor to issue proceedings in England and Wales when dealing with the Estate of a person who lived and was domiciled in another country.