Dellar v Zivy and others [2007] EWHC 2266 (Ch), [2007] All ER (D) 121 (Oct)
Z was a French citizen who moved to London in the late 1970s. He died in 2001, unmarried and childless. By his will, Z left the residue of his estate to his sister, M, provided—as occurred—she survived him for 56 days; and subject to that, his shares in a French company, C, were to pass to various nephews and nieces (N). M survived the deceased for 56 days.
However, N brought proceedings in France, apparently on the back of advice that the effect of the will under French law was that the shares in C would pass to them. The French court held it had jurisdiction, but M and D, the executor, appealed that decision. D then instituted proceedings in the High Court for a declaration that the shares passed to M, and applied for summary judgment on the claim. D cross-applied to strike out or stay D’s claim on forum non conveniens grounds. The French Court of Appeal stayed the French proceedings until the English claim had been heard.
The main issue for the English court was whether English or French law should apply to the interpretation of the will. Mr Justice Kitchin rejected N’s contention that a will containing a disposition of movable property should be interpreted according to the law of the testator’s domicile at death (which N contended was France). While that may be correct where questions of material or essential validity of such wills are concerned, the clear rule is that “a will is to be interpreted in accordance with the law intended by the testator. In the absence of indications to the contrary, this is presumed to be the law of his domicile at the time when the will is made”. Here, it was “absolutely clear” that, whatever Z’s domicile at the time the will was made, he intended it to be interpreted in accordance with English law. Among other things, the will was made in England by English solicitors, written in English and expressly declared Z’s domicile to be England; it appointed an English solicitor as executor and directed that English solicitors be consulted in all matters concerning the estate’s administration; and it created a trust for a sale—a mechanism not known to French law. It followed that the shares passed to M Moreover, although the French court was first seised, England was clearly the most appropriate forum: the will, draftsman and relevant law were all English; the fact that N were French, and the shares in a French company, was of less importance.
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