Withers, with Carey Olsen and Hawksford Executors Ltd in Jersey, have succeeded in obtaining an order from the Royal Court of Jersey, Re the Estate of Florence Ivelaw, that a will leaving the deceased’s significant worldwide assets, save for those situated in Belgium, to three well-known UK charities is not revoked by a later Belgian will despite the inclusion of a general express revocation clause in the later will. The later holographic Belgian will leaves the deceased’s assets in Belgium to separate beneficiaries in Belgium, the US and Canada.
The deceased, Mrs Florence Ivelaw, died in Belgium on 7 October 2009 leaving a will dated 14 July 2000 (the ‘Worldwide Will’) in relation to her worldwide estate outside of Belgium. On 14 June 2008 she made a Belgian will (her ‘Belgian Will’), in which she listed her Belgian assets, which purported to revoke all previous wills.
Evidence was assembled on behalf of the charities to demonstrate that, despite the deceased’s longstanding Belgian residence, because she had retained her English domicile of origin English law should apply in determining the validity of the revocation clause in the Belgian Will and the extent to which it revoked the Worldwide Will.
The Royal Court held that sufficient evidence existed to show that Mrs Ivelaw’s clear intention was that the Belgian Will should extend only to her property situated in Belgium and that the revocation clause contained in the Belgian will should operate only to revoke previous wills dealing with her Belgian situs property. The Court held that was not the deceased’s intention to revoke her Worldwide Will.
As a matter of Jersey law, the English rules on revocation would be applied by the Jersey Court provided that Mrs Ivelaw retained her English domicile of origin in June 2008, when she made her Belgian Will. For this reason, the Hawksford Executors Ltd and a team from Withers, including Paul Hewitt, Robin Paul and Phineas Hirsch, together with Julia Crossland (an English and Belgian qualified lawyer based in Brussels), gathered and adduced evidence to show that although Mrs Ivelaw had lived in Belgium for over thirty years, she had not acquired a Belgian domicile of choice: she had not acquired a Belgian passport, did not speak French with any fluency and retained the vast majority of her property in pounds sterling in bank accounts opened in English speaking countries. She maintained an English speaking circle of friends and described herself in her correspondence as an expatriate in Belgium.
The Court held that, on the basis of this evidence, Mrs Ivelaw “had not broken free from the tenacious hold of her domicile of origin and acquired a domicile of choice in Belgium”.
Under English law, it has long been the case that where there is an express revocation clause in a will, this is a strong indication of an intention to revoke all previous testamentary instruments save where there is a contrary intention or the revocation clause is inserted by mistake.
The Royal Court considered previous authorities on questions of revocation such as Re Phelan and Re Vickers in both of which cases, the two wills were expressed to deal with property situated in exclusive jurisdictions and it would clearly not make sense to revoke a previous will dealing with property in one jurisdiction and replace it with a will dealing with property in a separate jurisdiction.
The Court found that there was ‘strong and compelling evidence’ to support the submission, made by the Hawksford Executors Ltd, the executor company named in Mrs Ivelaw’s Worldwide Will, that the inclusion of the revocation clause in the later will was inadvertent. Following the line taken in the Jersey case of Re Vickers and the English case of Re Wayland’s Estate, the Royal Court ordered that the earlier Worldwide Will be admitted to probate.
The Royal Court has issued a short written judgement which can be found here.
In finding that the Worldwide Will was not revoked by the latter Belgian will, the court has extended the circumstances for which the Jersey Court will grant relief from the consequences of the inadvertent revocation of a will in that the Belgian Will, unlike the second, later wills in Re Phelan and Re Vickers, did not contain any express limitations on its jurisdiction.
However, it should be noted that in this case the beneficiaries under the second Belgian Will all supported the application to uphold the earlier Worldwide Will which made it all the more possible for the Court to come to a pragmatic, sensible decision. It is unclear whether it would have faced more difficulty had the application been challenged.
The issues raised by this case, therefore, highlight how important it is to make sure that when you make a will you do not inadvertently revoke any previous wills.