Re Adams

• Jurisdiction: Ireland
• Judgment Date: 28 July 1967
• Date: 28 July 1967
• Docket Number: [1965. No. 109 .]
• Court: High Court

[1965. No. 109 Sp.]

Re Adams, Deceased.

In the Matter of the Estate of Henry William Allen Adams, Deceased. BANK OF IRELAND TRUSTEE COMPANY LIMITED

Plaintiffs

and

CHARLOTTE MARGARET LOTHIAN ADAMS, CAROL HUTCHINGS And BETTY MELIAN PARKER

Defendants.

Domicil - Irish domicil of origin - French domicil of choice - Whether domicil of choice abandoned.

Will - Construction - Conflict of laws - Validity - Material validity governed by law of domicil - Domicil ascertained by lex fori - Ascertainment of law governing construction of will.

Special Summons.

The facts have been summarised in the head-note and are stated in the judgment of Budd J., post.

The first defendant died after the hearing of the summons and before judgment was delivered, and her personal representatives (Barclays Bank Limited) were substituted as first defendants by an order to proceed.

The questions raised by the plaintiffs' summons were as follows:—

"1. (a) Did the testator die domiciled in the Republic of Ireland? or

• (b) Did the testator die domiciled in England? or

• (c) Did the testator die domiciled in France?

2. If the testator did not die domiciled in any of the countries hereinbefore mentioned, in what country was the testator domiciled at the date of his death?

• 3. (a) Did the defendant, Carol Hutchings, under the provisions of the said will and codicil, take all money in whatever currency standing in the name of the testator at Lloyds Bank (Foreign) Limited, 1 Place Bel Air, Geneva, Switzerland? or

  • (b) Did the defendant, Carol Hutchings, under the provisions of the said will and codicil, take all the money in whatever currency standing in the name of the testator in any place?

4. If the testator died domiciled in France, is the validity of the execution of the said will and codicil to be determined by the law of France?

5. If the answer to Question 4 be in the affirmative, were the said will and codicil according to the law of France validly executed?

6. If the answer to Question 4 be in the negative, by what law is the validity of the execution of the said will and codicil to be determined?

7. If the testator died domiciled in France and the said will and codicil were validly executed:—

• (a) Are the dispositions in favour of the defendants Charlotte Margaret Lothian Adams and Carol Hutchings respectively made by the said will and codicil valid as to the whole of the testator's estate so far as the same consists of moveables?

• (b) If the answer to (a) be not in the affirmative, then notwithstanding any dispositions contained in the said will and codicil:—

  • (i) Is the defendant Betty Melian Parker entitled to a half or to any other and if so what share in the testator's moveables?

  • (ii) If the said defendant is so entitled does such share extend to all the testator's moveables or only to such as are locally situate in France?"

The above questions were answered as follows:—1. (a)and (b)—No; 1. (c)—Yes. 2.—No answer. 3. (a)—Yes, subject to answers 7 (a) and (b); 3. (b)—No. 4, 5, 6.— No answer, as no dispute at the hearing. 7. (a)—No; 7. (b)(i) Third defendant entitled to a moiety of deceased's moveables notwithstanding dispositions contained in the will and codicil; 7. (b) (ii)—Such share extends to all moveables of the deceased.

The deceased, who was born in Ireland, acquired a domicil of choice in England where he married and established his matrimonial home. In the year 1951, when he was 67 years old, he bought a house in France and went with his wife to live there, and he continued to live there until his death. He spent a major portion of each year outside France and he visited Ireland and England regularly. In 1948 he was registered as an Irish citizen and he held an Irish passport from the year 1950 until his death. In 1959 he took a lease of a flat in London and he used the flat during his visits to England. He sold his house in France, a few months before his death, subject to a life estate vested in him and to a right in his wife to continue to reside there for six months after his death. He had made statements denying that he was domiciled in France and there was some evidence that he had moved to France for fiscal and health reasons, and that he intended to return to England in the event of surviving his wife. By his will he bequeathed all his property to his wife, and by a codicil he made a bequest to the second defendant (who was not one of his next-of-kin) in the following terms:—

"I bequeath any sum of money standing in my name in whatever currency and any script or securities held on my behalf with Lloyds Bank . . . Geneva, Switzerland, to Miss Carol Hutchings . . ." It was submitted by the second defendant that the bequest to her in the codicil extended to all money standing in the name of the deceased anywhere. The will and codicil of the deceased were valid formally. He died in the year 1962 in London and was survived by his wife (first defendant), his daughter (third defendant) and by the second defendant. His estate consisted of moveables. The plaintiffs, who were the personal representatives of his estate, brought a summons to have certain matters arising in the administration of the estate determined by the High Court.

Held by Budd J., 1, that the material validity of the deceased's will and codicil depended upon the law of his domicil at the time of his death; that the ascertainment of such domicil was governed by Irish law as tho lex fori;and that under Irish law, and upon the evidence, the deceased had acquired first a domicil of choice in England, and then a new domicil of choice in France which had not been abandoned by him prior to his death as he had never ceased either to reside in France or to intend to reside there indefinitely.

2. That the third defendant, as a daughter of the deceased, was entitled under the law of France to a réserve légale consisting of a moiety of all his moveables, notwithstanding the dispositions contained in his will and codicil.

3. That the codicil should be construed in accordance with Irish law as intended by the deceased and that, subject to the réserve légale, the bequest to the second defendant extended only to money standing in the name of the deceased at the said Bank in Geneva (and to the securities held on his behalf by the said Bank).

Re Sillar, Hurley v. Wimbush [1956] I. R. 344; Re Annesley, Davidson v.Annesley[1926] Ch. 692; Hoskins v. Matthews 8 De G. M. & G. 13; Munster and Leinster Bank, Ltd. v. O'Connor[1937] I. R. 462; Davis v. Adair [1895] 1 I. R. 379; Revenue Commissioners v. Matthews92 I. L. T. R. 44 and Whickerv. Hume 7 H. L. Cas. 124 considered.

Cur. adv. vult.

Budd J. :—

The late Commander Henry William Allen Adams, formerly of Villa La Carrière, St. Jean-Cap-Ferrat, Alpes Maritimes, France, made his last will on the 27th November, 1958, at the Irish Embassy in London. His will was in the following terms:—"I hereby appoint my wife Charlotte Margaret Lothian Adams (née Coats) to be sole executor of this my Will. I give all my property, real and personal in Eire, France and the United Kingdom to my wife Charlotte Margaret Lothian Adams to do with as she thinks best."He made one codicil dated the 14th March, 1960, at La Carriére aforesaid. After reciting that his wife had asked to be released from her appointment as executrix of his will, he revoked that appointment and appointed the Governor and Company of the Bank of Ireland and the plaintiffs to be his executors. The said codicil contained a bequest to the defendant Carol Hutchings in the following terms:—"Further I bequeath any sum of money standing in my name in whatever currency and any script or securities held on my behalf with Lloyds Bank (Foreign) Ltd., 1 Place Bel Air Geneva, Switzerland, to Miss Carol Hutchings of Care of Lloyds Bank Ltd., Park Lane, London W.1., at my death to do what she likes with. In all other respects I confirm my said will." A question arises as to whether this bequest is confined to the testator's money standing to the credit of his account in the Bank in Geneva and the script deposited there, or whether it has the wider effect of covering all his money standing in his name anywhere.

The testator died at the International Sportmen's Club, Upper Grosvenor Street, London, on the 25th September, 1962, aged 78 years. Probate of the said will and codicil was on the 10th August, 1964, granted forth of the Principal Probate Registry to the plaintiffs. The first defendant is the testator's widow. The second defendant is the legatee named in the codicil. She appeared in these proceedings in person. The third defendant is the testator's daughter by a former marriage. She is his only child.

The gross estate of the testator amounted to the sum of approximately £32,500. The major portion thereof consisted of securities to the approximate value of £18,201 deposited at Lloyds Bank (Foreign) Limited, Geneva, and a sum of approximately $24,587 (Canadian) valued at £8,750 and standing to the credit of his account at the same Bank. There was also a sum of £2,025 on current account in the name of the testator at the head office of the Bank of Ireland, and a sum of £1,920 standing to the credit of his current account at Lloyds Bank, Monte Carlo, in the Principality of Monaco. His assets in France amounted approximately to £900 in value, including a sum of £150 standing to the credit of his current account with the American Express Company at Nice; and his personal estate in England consisting of cash, accrued income of settled funds, arrears of pensions and uncashed travellers cheques amounted in value to something over £700. If the legacy to the defendant Carol Hutchings is confined to assets of the testator in Geneva at the date of his death it would amount in value to approximately £27,000. If the bequest to Miss Hutchings is construed as covering the testator's money wherever situate, the value of the bequest will be in...