06 January 2022
The recent case of Partington v Rossiter  EWCA Civ 1564 highlights the importance of paying close attention to jurisdictional limits when drafting Wills. In this case, the English Court of Appeal held that the reference to "UK" assets in fact covered assets in Jersey, Channel Islands as well.
If "UK" in this case did not cover Jersey based assets, the testator would be intestate as to estate in Jersey and the widow would inherit those assets under intestate succession rules. If "UK" did cover Jersey based assets then the testator's children would inherit those assets as named residuary beneficiaries of the Will.
This finding is significant for Will drafters and testators because the reference to the "UK" usually does not include the Channel Islands. Section 5 of and Schedule 1 to the Interpretation Act 1978 defines the United Kingdom as "Great Britain and Northern Ireland" and the Oxford English Dictionary definition of "United Kingdom" has never included the Channel Islands. So why did the Court of Appeal conclude that the Will did cover the deceased's assets in Jersey?
- Despite the dictionary definitions, there is previous case law which found that the United Kingdom did include the Channel Islands;
- There is a long-established common law principle that the Court will try to interpret a Will so as to avoid intestacy, either in whole or in part;
- Courts will strive to give effect to the testator's intention and purpose (and the purpose is generally to dispose of all of the testator's assets);
- Weight was placed on other surrounding circumstances such as the nature and location of assets which the testator had at the date when he executed the Will. At the time of making the Will, the testator held significant assets in Jersey and it was unlikely that he intended to die intestate as to those assets. His objective intention must have been to make a Will which dealt with his assets in Jersey. There was no evidence of a separate Will having been prepared to cover Jersey assets.
- Further supporting evidence came from an initial draft Will which the testator sent to his solicitor. The Court of Appeal stated at paragraph 43: "Mr Rossiter's intention is beyond doubt. In the draft that he himself prepared he said on the one hand that it was only to deal with his UK property but, on the other hand, he intended to make specific legacies of his Jersey assets. The two are only rationally reconcilable on the basis that Mr Rossiter intended "the UK" to include Jersey". The testator was advised by his solicitor to arrange for Wills dealing with his assets in "other countries". There is no evidence that he made any other Will for his Jersey assets and the only plausible inference is that he understood and intended the Will in question to cover those assets.
This is an important reminder for practitioners to take care when defining the jurisdictional scope of a Will. The issues with interpretation of the Will in question have been costly and could have been avoided. Had there been less evidence of the testator's intention, the Court of Appeal may have found that the testator died partially intestate.
UK practitioners drafting Wills for clients with assets in Jersey should seek Jersey advice in order to avoid assets falling into intestacy unintentionally.
Testators should also think carefully about where their assets are located and, where there are Jersey assets involved, it would be best for them to take Jersey legal advice as to how best to deal with such assets, whether through their English Will or having a specific Jersey Will.
If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.