Re Berger (deceased)
kuac...@yahoo.com
Re Berger (deceased)
COURT OF APPEAL, CIVIL DIVISION
MUSTILL, MANN LJJ AND SIR DENYS BUCKLEY
28, 29 MARCH, 21 JULY 1988
Probate - Document - Admission to probate - Testator's intention
regarding admission to probate - Relevance of testator's intention -
Zavah in Hebrew language - Testator executing zavah in Hebrew
alongside English will - Zavah intended to be binding in Jewish law
and enforceable in rabbinical court - Testator expressing no intention
whether it was to be enforceable in English court - English will
invalid - Whether zavah should be admitted to probate as testator's
last will.
Probate - Document - Admission to probate - Will in foreign language -
Whether authenticated translation or text in foreign language document
admissible to probate.
Probate - Document - Admission to probate - Will in foreign language -
Evidence of foreign law to ascertain testator's intention - Whether
permissible for court to refer questions on meaning or effect of
foreign law to foreign court.
The deceased was an orthodox Jew domiciled in England. From 1964
onwards he made dispositions of his estate to his family by executing
two parallel series of documents. The first consisted of a succession
of English wills drawn up by the deceased's legal adviser containing
dispositions of his movable property which the deceased clearly
intended should be given effect to, and be provable, in the English
courts. The second series consisted of documents handwritten by the
deceased in Hebrew and known as zavah. They contained religious
exhortations to his family in terms which were alien to an English
will but also contained dispositions of his movable property. The
zavah were intended by the deceased to be binding in Jewish law and to
be enforceable in the rabbinical court, but he did not indicate
whether they were intended also to be enforceable in the English
courts or what was to happen if his current English will failed. In
1975 the deceased executed a valid English will which revoked all
former wills. On 6 August 1977 the deceased executed the last of his
zavah, the document being executed in accordance with the Wills Act
1837. On 9 August the deceased purported to execute another English
will but that will was invalid because it was improperly attested and
did not comply with the 1837 Act. The deceased died on 20 September.
The 1977 zavah contained testamentary dispositions of the deceased's
movable property to his family, as well as religious exhortations
addressed to them, and also contained provisions relating to matters
over which the deceased had no testamentary powers of control. It
concluded by stating that it was 'binding' on the deceased's family,
that it was 'additional' to what was written in the 1977 English will
and that if any clarification of that will was needed the 'present
[Hebrew] will ... is the definitive one'. On the deceased's death his
executors claimed that, because the 1977 English will had failed, the
1977 zavah (with the terms of the 1977 English will incorporated into
it) should be admitted to probate as the deceased's last will and
testament. The defendants, who were the beneficiaries under the 1975
will, sought pronouncement in favour of that will, on the ground that
the 1977 zavah was not a testamentary document in English law
governing the disposition of the deceased's estate. The judge
pronounced in favour of the 1977 zavah with the terms of the 1977 will
incorporated into it. The defendants appealed.
Held - (1) For an instrument to be a provable will which would be
admitted to probate in the English court, it was not necessary that
the testator should have positively intended that the instrument
should be provable in the English court. Provided the testator had not
positively indicated the contrary, namely that the instrument should
not be admitted
[1989] 1 All ER 591 at 592
to probate in the English court, all that was necessary for the
instrument to be admitted to probate was that it should contain
directions for the disposal of the testator's property after his
decease which were revocable during his lifetime. The fact that the
testator had not contemplated the possibility of the instrument being
enforced in the English court did not necessarily mean that it should
not be so enforced (see p 599 f to j, p 600 d e h and p 602 a b,
post).
(2) Since the 1977 zavah had been executed in accordance with the 1837
Act, since it contained dispositions of the deceased's movable
property which were to take effect on his death and which, having
regard to the history of the series of zavah, were to be revocable and
capable of modification during his lifetime and since the deceased had
never positively indicated that he did not wish his zavah to be
enforced in the English court but (per Sir Denys Buckley) on the
contrary, by referring to the 1977 English will in the 1977 zavah, had
expressed the intention that the 1977 zavah should take effect in
English law, it followed that the 1977 zavah, with the terms of the
1977 will incorporated into it, should be admitted to probate as the
deceased's last will on the basis that those documents were intended
by the deceased to be taken together as being his last will. The
appeal would therefore be dismissed (see p 600 e to j, p 601 d f to h,
p 602 e j and p 603 c d f to p 604 a, post).
Per curiam. (1) Where a will is in a foreign language the court must
be furnished with an authenticated translation, and it is the
translation, not the text in the foreign language, which will be
admitted to probate (see p 600 g h and p 602 b c, post).
(2) Where the will of a testator domiciled in England is in a foreign
language and uses terms inappropriate to English law but appropriate
to a foreign system of law, the English court when administering the
distribution of the testator's movable property in accordance with
English law can have recourse to evidence of the foreign system of law
for the purpose of ascertaining the testator's intention, but it
cannot refer any questions on the meaning or effect of the foreign law
to the foreign court, even if the testator expressly provided that any
such question must be decided by the foreign court, because for the
English court to do so would conflict with the rule of English law
that the devolution and distribution of the movable property of a
testator domiciled in England shall be governed by the lex domicilii
(see p 600 g h and p 602 j to p 603 c, post).
Notes
For the essential characteristics of a will, for evidence of
testamentary character and for testamentary form and testamentary
intention, see 50 Halsbury's Laws (4th edn) paras 202, 206, 249-250.
For the Wills Act 1837, see 50 Halsbury's Statutes (4th edn) 150.
Cases referred to in judgments
Douglas-Menzies v Umphelby [1908] AC 224, PC.
Ferguson-Davie v Ferguson-Davie (1890) 15 PD 109.
Godman v Godman [1920] P 261, CA.
Guardhouse v Blackburn (1866) LR 1 P & D 109, [1861-73] All ER Rep
680.
Lemage v Goodban (1865) LR 1 P & D 57.
Lister v Smith (1863) 3 Sw & Tr 282, 164 ER 1282.
Meynell, Re, Meynell v Meynell [1949] WN 273.
Milnes v Foden (1890) 15 PD 105.
Raven, Re, Spencer v National Association for the Prevention of
Consumption and other forms of Tuberculosis [1915] 1 Ch 673, [1914-15]
All ER Rep 353.
Whyte v Pollok (1882) 7 App Cas 400, HL.
Wynn's Will Trusts, Re, Public Trustee v Newborough (Baron) [1952] 1
All ER 341, [1952] Ch 271.
Appeal
By a writ issued on 2 October 1984 the plaintiffs, Sarah Englander and
Doris Feldman, claimed, as two of the executors of the will of Gerson
Berger deceased, for pronouncement
[1989] 1 All ER 591 at 593
and admission to probate as the deceased's last will and testament of
a manuscript Hebrew will dated 6 August 1977, incorporating therein an
invalid English will made by the deceased on 9 August 1977. The
defendants, Sighismund Berger, Mendel Berger and Brucha Berger, two of
the deceased's sons and his wife, and Gerson Berger Association Ltd,
by their defence denied that the 1977 Hebrew will was the deceased's
last will and testament. The first, second and fourth defendants, by a
counterclaim, claimed for pronouncement and admission to probate of an
English will made by the deceased in 1975 as being his last valid will
and testament. On 3 April 1987 Warner J pronounced for the 1977 Hebrew
will with the 1977 English will incorporated into it. The fourth
defendant appealed. The facts are set out in the judgment of Mustill
LJ.
Michael Nield for the fourth defendant.
David Ritchie for the plaintiffs.
Cur adv vult
21 July 1988. The following judgments were delivered.
MUSTILL LJ.
This case concerns the testamentary effect of an instrument executed
by Mr Gerson Berger on 6 August 1977. This document was handwritten in
the Hebrew tongue, and there is no doubt that Mr Berger, who was a
devout orthodox Jew, intended it to be a zavah. This term has for
convenience been rendered as a 'Hebrew will', but I think it
preferable to employ the technical expression, so as to avoid begging
the question whether the document was a will at all. At first instance
Warner J has pronounced for the zavah, holding also that it should
take effect with the incorporation of a roughly contemporaneous
document in the English language, which was undoubtedly intended to
take effect as a will, but which failed for want of proper execution.
An appeal is now brought against this decision by certain
beneficiaries under an English will made on 15 July 1975, the
contention being that the zavah was not apt for admission to probate,
either with or without the incorporation of the invalid English will
of 1977, and that accordingly the 1975 will stands as the last valid
testamentary disposition of Mr Berger.
This appeal is concerned with two groups of documents. The first
consists of a series of documents in the English language, plainly
intended to take effect as wills to which effect would be given
through the English law of probate. So far as is shown by the evidence
now before us, there were seven such documents, executed in 1957,
1958, 1963, 1964, 1972, 1975 and 1977. Current at the same time was a
series of documents in the shape of a zavah. The first was dated 1965.
The second was executed on 18 December 1972, the same date as the
fifth English will. The third was dated 11 February 1976, between the
sixth and seventh English wills. As will later appear, it was intended
by Mr Berger and his solicitors that the fourth zavah should be
executed at about the same time as the seventh English will, as had
been the case with the pair of documents dated 18 December 1972. In
fact the zavah was signed on 6 August 1977, three days before the
seventh and last English will, and about six weeks before Mr Berger
died.
The present dispute arises from the fact, that although as planned the
deceased appended his signature to the last English will within a few
days of the last zavah, that will was not properly executed, and
therefore has no direct testamentary effect. The question for decision
is whether in consequence the estate should be distributed in
accordance with the last of the valid English wills, namely the will
of 15 July 1975, or whether the zavah of 6 August 1977 should be
admitted to probate, as representing the last of the deceased's valid
testamentary dispositions. Warner J has held in favour of the latter
alternative, and against this decision the beneficiaries under the
1975 will now appeal.
In order to form an impression of how the deceased envisaged that the
two series of documents were to take effect concurrently it is
convenient to look as briefly as possible at the dispositions which
they contained. We may begin with the English will of 25 July 1964. As
did all the English wills, this began with a revocation clause. It
proceeded to
[1989] 1 All ER 591 at 594
appoint executors and trustees, and then dealt specifically with the
shares in Raymond Sun Ltd, which were to go in unequal portions to two
of the testator's sons. The residue of the estate was devised to the
trustees, in trust for the testator's daughter Doris, with liberty to
apply capital to the benefit of the deceased's wife. The remainder of
the will consisted of various provisions in common form relating to
the powers and rights of the trustees. By a codicil dated 27 July 1964
the testator gave his personal effects to his children, after the
death of his wife.
Nine months later Mr Berger executed the first zavah. This document,
which was of some length, began with words translated as follows:
'This is concerning the division of the estate after 120 years', the
last three words being a circumlocution for the death of Mr Berger.
The first clause stated that Raymond Sun Ltd 'is not included in the
Trust', and was to pass to the same sons in the same proportions as in
the English will. The remainder of the will consisted of: (1)
directions as to the disposal of companies 'in the Trust'; (2) a
direction that various relatives should take stipulated sums from
those companies, with a wide discretion as to the time at which this
should be done; (3) a stipulation that certain named 'companies from
the Trust' which he had given to his daughter should belong to her
'although they, too, are in the Trust'; (4) a command that all the
heirs should give Mr Berger's wife an income of £100 per week free of
tax, as a director's fee or in some other way; (5) a declaration that
the shares in certain companies which Mr Berger had given to his son-
in-law during his lifetime were his property, 'Even the 25 per cent I
have therein are his'; (6) a request 'In the matter of charity: from
the value of the Trust companies ... and from the charitable company
G.B. Association Ltd.' a certain income should be given to a brother-
in-law, and that marriage settlements should be made for his sons and
daughter; (7) the expression of a wish that from moneys 'from my
Charity' and 'from the Charity funds that shall remain after me'
various dispositions should be made; (8) expressions of affection, and
exhortations to good conduct, directed to various relatives.
Next, on 18 December 1972 there were executed, in unknown order, an
English will and a zavah. The English will contained specific legacies
of £50,000 and £15,000 to the Gerson Berger Association Ltd and to his
wife respectively. As to the residue, the trustees were to pay the
income to the wife for life, and on her death were to hold the trust
fund for the children in equal shares.
The contemporaneous zavah began with the words (in translation) 'Here
are some changes in my Will'. It is clear that the words translated as
'my will' were a reference to the zavah of 25 May 1965. Paragraph 1
stated that, since Raymond Sun Ltd now belonged to the charitable
company Gerson Berger Association Ltd (the fourth defendant), para 1
of the former zavah was now irrelevant, as were certain of the
directions that relatives should have sums from companies in the
trust, as distributions had already been made. For the rest, the
provisions of the former zavah were either stated to be unchanged, or
were varied in minor respects.
Next, there was the English will of 15 July 1975. This simply
contained an absolute gift of £100,000 to Gerson Berger Association
Ltd, with the residue to the testator's wife.
On 11 February 1976 he made a further zavah. In brief, this was to the
following effect. 1. Certain paragraphs of the two previous zavah were
cancelled, as were some of the specific directions for payments to
named persons. 2. The provision for the wife was increased to £200 per
week free of tax. 3. Various new gifts were added. It may be noted
that nothing was said in this zavah about the sources from which those
responsible for administering it were to find the additional
expenditure which it entailed.
Now we arrive at the pair of documents which the deceased executed
during August 1977. The circumstances were found by the judge to have
been as follows:
'Mr Rabin [the solicitor of Mr Berger] took instructions for the
English will at two meetings which he had with the deceased at 8 Gilda
Crescent at the end of July 1977. During the course of those meetings,
the deceased told Mr Rabin that he was
[1989] 1 All ER 591 at 595
going to write to his children a "zavah" (a Jewish will) and he
instructed Mr Rabin to refer to it in the English will. Mr Rabin told
me, and it is, I think, common ground, that if a zavah is to be
morally binding only, it need not be witnessed, but that if it is to
be binding in Jewish law it must have two witnesses. Mr Rabin assumed
that the deceased's zavah would be of the former kind. Otherwise he
would have asked the deceased for details of what he was going to put
in it and taken steps to ensure that the two wills were consistent. Mr
Rabin sent the engrossment of the English will to the deceased by hand
at 8 Gilda Crescent in the afternoon of 5 August 1977, with a covering
letter. He had not previously submitted to the deceased a draft of it.
5 August 1977 was a Friday. The Jewish sabbath began at sunset on that
day and ended at sunset on the following day. A man of the deceased's
religious convictions would not have taken any step to execute a will
during that period. After sunset on Saturday 6 August 1977 the
deceased executed the Hebrew will. He did so at 8 Gilda Crescent. Why
he did not execute the English will at the same time is unknown.
Possibly he had not had time to read it. Undoubtedly he was not well
at the time. On the following Sunday or Monday he went to stay with
one of his granddaughters at Margate. Mr Pinter described him as
convalescing there. It was there that on Tuesday 9th he and Mr Pinter
put their signatures to the English will.'
As to the invalid English will this purported to revoke 'all former
Wills and Codicils', so that the prior gift of £100,000 to the
charitable association and the absolute gift of the residue fell away,
and in substitution (a) the wife was to have an income of £10,000 free
of tax, (b) the wife was to have a home for life of a value equivalent
to that of the existing matrimonial home and (c) the residue was to go
to the testator's four children in equal shares.
Paragraph 13 of the will read as follows:
'I wish my children to know that I have immediately prior to the
making of this my Will written to them a letter expressing my wishes
and requirements of them in the future. I request my children to
comply with my wishes and desires with all the authority which I as a
father am entitled to require from them as religious Jews.'
We should mention that when the English will of 1977 came to be drawn
the deceased's solicitor was unaware that English wills had previously
been made in 1972 and 1975. Whether the deceased had forgotten them,
we do not know.
Finally, as to the last zavah, which the judge has directed shall be
admitted to probate. So that the flavour of this document may be
understood it is best to set it out at length, omitting only the
signatures and other formal parts (the translator's notes are in
square brackets):
'With the help of God
To my dear sons. Shalom Zvi, may his light shine, Aharon Menachem
Mendl, may his light shine, Eli' and Sarah Englander, Chaim Moshe and
Devorah Feldman, may they live [long]. I hereby reiterate my decision,
that the division I have made some time ago, i.e., the part of my
property that I apportioned to each of you, is still in force (and
there, my eldest son Shalom Zvi, may his light shine, received a
larger portion). But regarding the part I have not divided, which is
in my own name or in that of a Company or a Charity Company, or in
another manner, both Companies the shares of which belong to me alone
or in which I am partner with fifty per cent of the shares, or less,
and the like, [these] shall be divided equally among my four sons, may
they live [long], and all the other appointments I have made, either
in writing or orally, are null and void, and once again, I repeat and
command-invoking the commandment "honour thy father"-my son Shalom
Zvi, may he live [long], to take all the steps in order to fulfil my
wishes expressed in this will. I also command all the previous
appointees which are not my sons, to sign all manner
[1989] 1 All ER 591 at 596
of resignations and all manner of documents that you ask of them
either together or each one of you separately, and you must make any
excuse in the world to fulfil my wish and should anybody whosoever
hold on to my property in contravention of my instructions in the
present will, then these are strictly forbidden to him in this [world]
as well as the next one. With regard to the Charities, I hereby
command you to distribute to all the Charities as I used to do myself,
out of the income from my portion and the balance of the income shall
be for distribution among my four sons, may they live [long]. You are
not obligated to sell capital in order to distribute to charity and
the distribution to charity shall be exclusively from future income.
As I have written, my property shall be divided equally among the four
of you and, if you wish, you may separate and you have no obligation
to be in partnership.
[Signatures and Attestations]
I reiterate and command my son Shalom Zvi, may his light shine, to
appoint my son Aharon Menachem Mendl and my two sons-in-law or
daughters governors, directors or trustees of G.B. Association Ltd and
any company or Charity company [in which] which I have a share., or a
trust I set up and, as I have written above, dismiss all the other
appointees who are not my sons. My ardent wish is that all my four
sons, may they live [long] will have equal say in each company, or
Charity company or trust or association and that every resolution
shall be passed unanimously and, if that prove impossible, by majority
opinion. I reiterate and stress that all the benefits due to me in any
way whatsoever, either from companies or association or the like, be
equally divided among my four sons, may they live [long], and their
families. I command you to strictly honour your mother, that is, my
dear spouse, may she live [long] and, from my share, give her "free of
tax", the sum of two hundred pounds Sterling per week, according to
today's rate and, should she need more, give her more, according to
need. Additionally, she has a right to a flat for herself either at 1-
2 Warwick Court or another flat, befitting her status, without the
expense of rent. Each of my sons, may they live [long], should know
that what I have written in this will is binding on you and additional
to what was written in the English language will, and should any
clarification be needed, the present will (in the Holy Tongue)
[Hebrew] is the definitive one.
[Signature and Attestation]'.
I have described the terms of the various documents in some detail,
because they represent almost the sum total of the evidence from which
the court must form an opinion on the crucial issue of Mr Berger's
intentions when executing the zavah. To my mind, this is most
unfortunate. Much guidance could have been furnished by information on
the following topics.
1. The nature and effect of a zavah under Jewish religious law. It was
agreed that a document of this kind bearing the signatures of two
witnesses is enforceable through the religious courts, but we know
nothing about the mechanisms for such enforcement, or of the sanctions
available to the tribunal. Nor again were we informed whether the
enforcement would apply to all the provisions of the document, or only
to those which were expressed as dispositive, leaving the expressions
of the writer's wishes to the good conscience of the persons who were
desired to carry them out. Equally, we do not know what, if any, steps
the religious tribunal would have taken regarding those instances, of
which there are several in the successive Hebrew documents, where Mr
Gerber was expressing instructions or desires for the disposition of
property which no longer belonged to him. Information on these and
other relevant aspects of Jewish law is no doubt readily to hand, but
in the absence of expert evidence or agreement we cannot properly make
any assumptions about them.
2. It was explained to us in the course of argument that Mr Berger had
made dispositions of a substantial part of his wealth in the course of
his lifetime. It is possible to glean from a letter written by Mr
Rabin to Mr Berger while in the course of taking
[1989] 1 All ER 591 at 597
instructions for the failed English will that Mr Berger had created
and endowed certain charitable companies of which the shares were held
in the family, that among these endowments were some or all of the
shares in various of Mr Berger's trading companies and that Mr Berger
had made gifts to his family of holdings in his companies. More than
this we do not know. This is a pity, for it is material to any attempt
to reconstruct from the Hebrew documents themselves what Mr Berger
intended when he executed them to consider whether the dispositions
which they contain related to property which it was already beyond his
power under English law to bequeath.
3. We were informed that, in the course of the extensive and bitter
family dispute which has followed the death of Mr Berger, an issue or
issues concerning the zavah was referred to a rabbinical court in New
York, but counsel were unable to state the subject matter of the
reference, or anything about its outcome.
One thing does seem to me quite clear, namely that Mr Berger cannot
have caused the documents to be produced with the conscious intention
that the current zavah should be admitted to probate together with the
current English will. On their own, the revocation clauses in the
English wills would be enough to show this. If each zavah was
conceived by the testator to be a will, he must have intended that the
1972 English will would revoke the 1965 zavah, which is impossible,
since this was treated as subsisting by the 1972 zavah, which
purported to amend it. Similarly, if the 1972 English will was
executed after the 1972 zavah (which was the order of events
contemplated in 1977) it would have revoked both the 1965 and the 1972
zavah, which was plainly not intended. Again, the 1975 English will
would have revoked the 1965 and 1972 zavah, yet the latter part of the
1976 zavah clearly contemplates that the 1972 zavah was subsisting,
and Mr Berger cannot have intended that the 1975 English will would
operate to create a gap in the succession of zavah.
Moreover, the contrary proposition entails that the Hebrew documents
of 1965, 1972 (possibly, depending on the order of execution) and 1976
were intended to operate as codicils to the current English wills.
This is unconvincing, first because the 1976 zavah is expressed to
amend the earlier Hebrew documents, not the 1975 English will, which
it does not mention, and second because Mr Berger was a successful and
experienced businessman, who knew what to do when he wished to make a
will which would be enforced by the English court, namely he sought
the advice of an English professional adviser, gave him instructions
on what he wanted and signed the resulting document. That Mr Berger
should have intended, by creating documents of his own composition,
written in the Hebrew tongue, and quite alien in tone and content to
the instruments which his lawyer had prepared for him, to bring about
a variation in the effect which the English court would be obliged to
give to his current English wills seems quite impossible to conceive.
To my mind there is nothing in cl 13 of the failed English will, nor
in the last clause of the 1977 zavah, to demand any opposite
conclusion. The former is if anything the other way, for it speaks
only of 'a letter', and 'wishes' and 'requirements'. It is conceivable
that there was some misunderstanding between Mr Rabin and Mr Berger,
and that Mr Rabin believed that Mr Berger had in mind an unattested
zavah, binding in honour only. But is it possible that if Mr Berger
had intended to execute, contemporaneously with the document which he
was instructing Mr Rabin to prepare, a home-made document designed to
rank with Mr Rabin's document as a testamentary disposition to be
enforced by the English court he would not at least have mentioned it?
Or that if he had mentioned it, Mr Rabin would not have insisted on a
sight of it, and redrawn cl 13 accordingly? Nor again, is it possible
that Mr Berger would have executed a will containing cl 13 if it
contradicted his intentions? Granted, he was a sick man at the time,
but the zavah plainly contained instructions which were close to his
heart, and if cl 13 entirely misrepresented their effect, he could
hardly have failed to protest.
As for the last paragraph of the 1977 zavah, I find it hard indeed to
understand this as an intimation to the English courts of probate and
construction that the zavah was to be
[1989] 1 All ER 591 at 598
regarded as a definitive exposition of the contemporaneous English
will. It seems to me more consistent with the notion, to which I shall
return, that the zavah was to operate in the shadow of the English
will.
Accordingly, if the right question is whether Mr Berger intended that
the series of zavah in general, and the last one in particular, should
operate in tandem with the current effective English language wills,
as documents which were to be read in conjunction with them as
dispositions to which the English court would give effect, I would
without hesitation answer in the negative. I am not convinced however,
although the point achieved no prominence in argument, that this is
indeed the right question. We are not concerned here with any attempt
to enforce the current valid English will and the 1977 zavah at the
same time. For the current English will was the 1975 will, and neither
party has contended that this should be admitted to probate along with
the zavah. This is not surprising, not only because the zavah is
plainly referring to the 1977 will, and not to some other document
which would have been obsolete but for the error in execution, but
also because there is reason to believe that Mr Berger had forgotten,
and Mr Rabin had never known, that he had made a will in 1975.
Thus, if one is to seek out the intention of Mr Berger, the right
question is this: what did he intend to be the status of the zavah as
a document to be admitted to probate, on the unforeseen contingency
that the English will was ineffectual? To this question there is no
rational answer, for in reality Mr Berger had no intention at all,
since the possibility that the English will might fail obviously never
crossed his mind: and if it had done, he would have looked into the
matter, and the course of events would have been different. But,
whatever intention should be imputed to him, I see no reason to
suppose that he intended a document designed to be enforced by the
rabbinical tribunal, and written in the appropriate terms, to be
enforced by a court to which its terminology and social underpinnings
were entirely alien, and still less that he would have wished a
linguistic and intellectual hybrid between a valid zavah and an
invalid English will to be enforced by an English court, and this is
what the plaintiffs' argument entails.
So far, the discussion has concerned the intentions of Mr Berger as to
the enforcement of the zavah in the English probate registry; and the
answers, as suggested, seem to be all in the negative. But it is also
right to ask whether we can infer anything about what Mr Berger
positively did intend. Here we are much impeded by the lack of
information to which I have already referred. Nevertheless, I think it
legitimate to infer that the zavah were intended to operate in the
shadow of the English wills, in two respects. First, the rights
created by the English wills were alone to be those recognised by the
mechanisms of English law; but the persons who were beneficiaries of
these rights were to hold them subject to a further group of rights
and duties as to the manner in which they were to be enjoyed, the
enforcement of which was to be the business of the rabbinical
tribunal. In this respect, there might be seen a likeness to the way
in which rights enforceable through the courts of equity shadowed
those conferred by the common law, before the two systems were merged.
Second, the zavah was designed to impose on various persons
obligations in regard to the disposition of assets which they did not
derive from any English will, but from the prior bounty of the
deceased. So far as these obligations were enforceable at all, the
only medium of enforcement was the rabbinical tribunal.
So the position in short seems to me as follows. Mr Berger intended
that the wishes expressed in the English wills should be obeyed, and
enforced by the English court. He also intended that the wishes
expressed in the zavah should be obeyed, and enforced if necessary by
the rabbinical tribunal. He had no intention about what would happen
if the English will failed.
If this is a fair reconstruction of what the testator desired, how
does the matter stand in law? Not surprisingly, there is no case in
point. Litigation on facts such as the present must surely be unique.
It may not be unusual (for aught we know) that the same person
executes parallel series of English will and zavah, but it seems
highly improbable that the zavah (designed to be enforced by the
rabbinical court) would ever be presented for
[1989] 1 All ER 591 at 599
probate in the English court in preference to the English will
(designed for enforcement in that court) otherwise than in the
exceptional circumstances of the present case. Furthermore, modern
authority in this field is in short supply. Although there were
several cases (to which we have not been referred) before the Wills
Act 1837 introduced the requirements as to signature and attestation,
there have been few since then. This is not surprising. If a document
which resembles a will bears the signature and attestation required by
the Act, the presumption that it was intended to be enforced by those
judicial mechanisms to which compliance with the Act is a condition
precedent will be hard to rebut: see per Barnard J in Re Meynell,
Meynell v Meynell [1949] WN 273. If on the other hand the document is
not signed and attested as required, it will not be admitted to
probate unless it falls into certain confined categories, such as
soldiers' wills. Accordingly, the problems raised by the kind of
informal and ambiguous documents which were formerly the subject of
dispute as to their testamentary effect will now only infrequently
arise.
Furthermore, I believe that care should be taken not to draw too
readily on general statements in the few reported cases, given the
great dissimilarity of their subject matter to the present. In
particular, all the cases were concerned with an issue whether the
instrument was intended to be a will or something else, such as an
immediate gift inter vivos, or as a document which had no legal effect
at all, such as a draft or an expression of intent. None had occasion
to address the problem of the document which was meant to be a
testamentary disposition, but not one which would be enforced by the
mechanisms of probate.
Subject to these reservations, the following propositions may be
derived from the authorities, among which I include Lister v Smith
(1863) 3 Sw & Tr 282, 164 ER 1282, Guardhouse v Blackburn (1866) LR 1
PD 109, [1861-73] All ER Rep 680, Milnes v Foden (1890) 15 PD 105,
Whyte v Pollok (1882) 7 App Cas 400, Ferguson-Davie v Ferguson-Davie
(1890) 15 PD 109, Re Raven, Spencer v National Association for the
Prevention of Consumption and other forms of Tuberculosis [1915] 1 Ch
673, [1914-15] All ER Rep 353, Godman v Godman [1920] P 261, Re Wynn's
Will Trusts, Public Trustee v Newborough (Baron) [1952] 1 All ER 341,
[1952] Ch 271, Jarman on Wills (8th edn, 1951) vol 1, pp 6, 26, 32, 37
and 50 Halsbury's Laws (4th edn) paras 201-203, 250, 376.
(1) An instrument cannot be a 'provable will' (by which expression I
mean the type of instrument which will be admitted to probate in the
English courts) unless it contains a revocable ambulatory disposition
of the maker's property which is to take effect on death.
(2) An instrument cannot be a 'provable will' unless the maker had an
'animus testandi'.
(3) This expression does not mean that a document cannot be a
'provable will' unless the maker has addressed his mind to the
question whether the instrument will be capable of admission to
probate in the English court, and wishes that it shall be so. Rather,
it conveys only that the maker must intend that his document shall
effect the kind of disposition referred to under item 1 above.
(4) Thus, it is possible to make a 'provable will', whatever its form
or appearance or mode of expression and irrespective of the language
in which it is written, so long as it combines the requirements above
mentioned, the necessary intention and execution as required by the
1837 Act (if the circumstances are such as to require execution).
(5) If the document has the necessary dispositive effect, and is duly
executed, the necessary animus will be presumed. This presumption is
however rebuttable, either by other terms of the document itself, such
as the statement that the document is intended for guidance only, or
by strong extrinsic evidence.
These propositions, if correct, will serve to illuminate the source of
the present problem, for they distinguish between the (necessary)
intention to make a revocable disposition which is to operate on death
and the (unnecessary) intention to make a 'provable will'. At first
they seem to disclose a contradiction. Imagine a document headed with
the words, 'This is not a will and is not intended to be admitted to
probate'. To hold
[1989] 1 All ER 591 at 600
that it could nevertheless be proved would seem to be not only absurd,
and an unjustifiable thwarting of the testator's intentions, but would
also contravene the rule that internal evidence can negative animus;
and yet the conclusion would seem to be justified by the distinction
between animus testandi and the desire to make a 'provable will'. In
my judgment there is no true contradiction here, for the heading would
show that the maker did not intend the document to be enforced by the
probate court, and in the absence of any other mode of enforcement he
would thereby have demonstrated that he did not wish his dispositions
to be enforced at all, and thus took away one of the essential
characteristics of a will.
The present case raises a different problem, which the authorities do
not appear to touch at all. What if the zavah had been headed with the
words: 'I solemnly declare that I wish this document, in case of
dispute, to be construed and enforced by the rabbinical tribunal, and
that it shall not be admitted to probate or otherwise pronounced on by
the English court.' Could the court properly grant probate of such a
document? Granted that there was animus testandi in the shape of an
intention to make a disposition on death, still there was no intention
that it should make a disposition enforceable by the only mechanisms
to which such animus testandi was relevant. To my mind the court
should not grant probate in such a case: a testator who has made a
will but has demonstrated that he did not wish it to be a 'provable
will' has not made a 'provable will'.
This proposition, even if right, is not the end of the case, for Mr
Berger did not write anything in his will similar to the hypothetical
heading which I have discussed. Nor does the fact he never
contemplated the possibility of the zavah being enforced in the
English court necessarily mean that he desired, that if all else
failed, it should not be so enforced. In the event, it is impossible
to conceive that he intended anything at all about the unforeseen
combination of circumstances which has actually come to pass. One must
therefore fall back on two undeniable facts, namely (i) he made a
document containing directions for the disposal of his property the
language of which was dispositive and (ii) it was executed in a form
sufficient to render it enforceable by the English court. This being
so, I am driven to the conclusion that the document does amount to a
will, and should be admitted to probate. This is not a result which I
view with much enthusiasm. I believe that Mr Berger would have been
startled to learn that the zavah was to be administered by the English
court, rather than the tribunal to whose religious and cultural norms
it so plainly appealed. Moreover, the court of administration to which
we now remit all further consideration of this document is likely to
have an unenviable task in deciding what if any effect should be given
to it. On the other hand, it is reassuring that at least a part of the
arrangements made by Mr Berger in the 1977 documents should survive,
rather than yielding place to an outdated will whose very existence he
seems to have forgotten.
At all events, I conclude in respectful agreement with the reasons to
be stated by Sir Denys Buckley that the appeal should be dismissed.
MANN LJ.
I have had the advantage of reading in draft the judgments of Mustill
LJ and Sir Denys Buckley. I agree with them. I share the regret of
Mustill LJ that the court was not better informed. However, I
entertain no doubt but that the zavah of 6 August 1977 should be
admitted to probate. Having been so admitted, its effect will have
subsequently to be determined. I would hope that the determination
could be achieved without recourse to further litigation. I also would
dismiss this appeal.
SIR DENYS BUCKLEY.
By English law the devolution and distribution of the movable property
of anyone who dies domiciled in England is governed by the lex
domicilii of that person, that is to say by English law: Jarman on
Wills (8th edn, 1951) vol 1, p 4. The present action has proceeded on
the assumption that Mr Gerson Berger (the deceased) died domiciled in
England. The pleadings are silent about this, and we
[1989] 1 All ER 591 at 601
have been referred to no evidence on this aspect of the matter. It
appears to be common ground. The correct forum for decision of any
question relating to the devolution of the deceased's movable property
is accordingly an English court.
Jarman p 25 further stated that 'in a general and comprehensive sense,
a will consists of the aggregate of all the papers through which it is
dispersed'. Sir J P Wilde said in Lemage v Goodban (1865) LR 1 P & D
57 at 62 that a will is the aggregate of a man's testamentary
intentions so far as they are manifested in writing duly executed
according to the Wills Act 1837. So, to discover what the deceased's
testamentary intentions were when he died, we must identify whatever
duly executed testamentary documents were made by him and were in
operation at his death.
The relevant facts have already been fully stated and I need not
repeat them.
Jarman p 26 describes a document qualified to be recognised as a will
or testamentary instrument in this way:
'A will is an instrument by which a person makes a disposition of
his property to take effect after his decease, and which is in its own
nature ambulatory and revocable during his life.'
It must be manifest that the instrument is not to operate until the
testator dies and is to be revocable meanwhile.
It is, to my mind, perfectly clear that the deceased intended to make
certain dispositions of his property by the 1977 zavah. After
referring in the second paragraph to certain 'apportionments' which he
had made among his sons 'some time ago' he proceeds:
'But regarding the part I have not divided, which is in my own
name or in that of a Company or of a Charity Company, or in another
manner ... [these] shall be divided equally among my four sons ... '
I need not pause to investigate the 'apportionments ... made some time
ago'. The following passage relating to 'the part I have not divided'
clearly, in my judgment, discloses an intention to make a disposition
of property which he had not theretofore disposed of. This is
supported by the later passage: 'As I have written, my property shall
be divided equally among the four of you ... '
This, in my judgment, clearly discloses some dispositive intention, to
take effect at the death of the deceased. Moreover, I think that
clearly the document was intended to have an ambulatory effect and
(particularly having regard to the history of the series of zavahs) to
be revocable and capable of modification by the deceased.
Consequently, in my judgment, the 1977 zavah has, in at least some
respects, the characteristics of a testamentary instrument. No special
ground for excluding the document from probate, such as lack of
testamentary capacity, fraud or undue influence is alleged.
Consequently, in my judgment, the 1977 zavah should be admitted to
probate as part of the deceased's will, unless it can be established
either that it was not executed in accordance with the 1837 Act or
that it was written without any intention that it should have any
operation and effect as a testamentary disposition, that is without
animus testandi.
The 1977 zavah consists of two sheets, each of which the deceased
signed, and each signature was attested by two witnesses. The trial
judge found as a fact that the 1977 zavah was duly executed in
accordance with the Act. There is no appeal against that finding. He
also found as a fact that the deceased had no positive intention that
the zavah should not take effect in English law. The appellant
contends that that finding was against the weight of the evidence and
inconsistent with another finding of the judge that the deceased saw
his English and Hebrew wills as being in separate and parallel
streams, one to be enforced in the English courts and one in the
rabbinical courts. The appellant contends that the judge ought to have
held that the deceased did not intend that the 1977 zavah should have
any effect in English law. I emphasise the last three words
[1989] 1 All ER 591 at 602
because I shall later consider whether a testamentary document can be
excluded by the testator from consideration by a court of the forum in
which the devolution of his property primarily falls to be regulated.
English law does not require a document which is intended to have
testamentary effect to assume any particular form or to be couched in
language technically appropriate to its testamentary character. It is,
says Jarman p 32, sufficient that the instrument, however irregular in
form or artificial in expression, discloses the intention of the maker
respecting the posthumous destination of his property. It may be made
in any language. If it is made in a foreign language, the court must
be furnished with an authenticated translation made by a qualified
translator. It is that translation, not the text in the foreign
language, which is admitted to probate. It is from the document so
admitted to probate together with any other relevant testamentary
instruments that an English court will ascertain the testator's
testamentary intentions and determine their effect and validity.
The 1977 zavah as translated contains the following passage:
'Each of my sons ... should know that what I have written in this
will is binding on you and additional to what was written in the
English language will, and should any clarification be needed, the
present will (in the Holy Tongue) [Hebrew] is the definitive one.'
This seems to me to be irreconcilable with any suggestion that that
zavah was not intended to have any testamentary force. On the
contrary, the deceased's signature on it was attested by two witnesses
which, according to the evidence, would render its provisions
judicially enforceable in a rabbinical court.
I would therefore reject any argument to the effect that the 1977
zavah was intended only to have exhortatory or advisory effect but no
legal effect under any system of law.
The function in English law of a probate court is to ascertain and
determine what testamentary paper or papers is or are to be regarded
as constituting the last will of the testator and who is entitled to
be constituted his legal personal representative. However many
testamentary documents a testator may leave-
'it is the aggregate or the net result that constitutes his will,
or, in other words, the expression of his testamentary wishes ... In
this sense it is inaccurate to speak of a man leaving two wills; he
does leave, and can leave, but one will.'
(See Douglas-Menzies v Umphelby [1908] AC 224 at 233.)
Having regard to the existing distribution of business between the
various divisions of the High Court, under which contentious probate
business is now allocated to the Chancery Division, it is important to
distinguish between the jurisdiction of a judge of that division
trying a probate action from the jurisdiction of a judge of that
division trying an administration action. The probate jurisdiction
extends to the function referred to in the preceding paragraph. A
judge exercising that jurisdiction can, of course, receive all
evidence and entertain all submissions relevant to the performance of
that function. He has, however, no duty to construe any of the
instruments sought to be proved except so far as to do so may be
necessary for the performance of that function. The probate court has
no role to play in the administration of the testator's estate in
accordance with whatever valid testamentary disposition the testator
may have made, nor in determining how far his intended dispositions
are valid. Once the identity of the deceased's testamentary papers has
been determined and they have been admitted to probate, all questions
of construction arising in the administration of the estate concern
only the court of administration.
I have already indicated why I, for my part, consider that the 1977
zavah contains at least some testamentary dispositions which were not
intended to be merely precatory.
If a testator, who at all relevant times has been domiciled in England
and whose movable property accordingly falls to be distributed in
accordance with English law has
[1989] 1 All ER 591 at 603
made a will which, or some part of which, is in a foreign language and
perhaps uses technical terms inappropriate to English law but
appropriate to a foreign system of law, an English court administering
his estate must ascertain what the testator intended by ordinary
processes of construction, including expert evidence of the meaning
and effect of those technical terms in the relevant foreign law and
possibly of how a court within that system of foreign law would give
effect to that document. The English court in the light of all the
admissible evidence will determine what the testator intended and will
give effect to that intention so far as it is valid and effectual by
English law. In so doing the English court is applying English law and
has recourse to evidence of foreign law merely for the purpose of
ascertaining the testator's intention. The English court would not
refer any question arising on the meaning or effect of the foreign
document for decision by a court in the foreign jurisdiction. This
would, I think, be the case even if the testator were to provide
expressly that any such question must be decided by a court of the
foreign jurisdiction. To hold otherwise must, I think, conflict with
the English law that the devolution and distribution of the movable
property of such a testator shall be governed by the lex domicilii.
Moreover, Warner J in his judgment drew attention to the fact that
there is in the present case no evidence, let alone clear evidence,
that the deceased positively intended that his Hebrew wills should not
have effect in English law. On the contrary, as it seems to me, the
reference in the 1977 zavah to the 1977 English will, which I have
already mentioned, is to a precisely opposite effect.
I do not myself consider that any reliable conclusion can be drawn
from the circumstances that the deceased does not seem to have
appreciated that the revocation clauses in his various English wills,
or indeed the terms of subsequent zavahs, may have affected the
continuance in force of earlier zavahs or parts of them. A failure on
his part to realise this would in my view have little or no bearing on
the question whether the deceased's intentions, when writing the 1977
zavah, were of a testamentary character. I think that the deceased may
well have believed that the zavahs, written in Hebrew and invoking
certain religious rules or concepts, would have a more solemn and
compelling effect on his children than his English wills. In this
respect it is not, I think, inappropriate to speak of the wills and
the zavahs constituting parallel streams or to describe one series as
operating in the shadow of the other. But to use terms of that kind
does not, to my mind, help to solve the problem which confronts us.
The 1977 zavah and the 1977 English will (had it been duly executed)
should, in my opinion, have been regarded as mutually incorporated in
one testamentary exercise, that is to say as together constituting the
deceased's last will. If that had been the case, the presence in the
English will of a revocation clause would not, in my judgment, have
occasioned, as has been suggested, a revocation of the 1977 zavah.
For reasons which I hope I have sufficiently explained, I am of the
opinion that the 1977 zavah, which unquestionably contains some
provisions which seem to relate to matters over which the deceased had
no testamentary powers of control, nevertheless equally unquestionably
contains provisions which have all the indicia of being testamentary
dispositions of property over which he had power to dispose by will.
Consequently, in my judgment, the judge was right in holding that the
1977 zavah should be admitted to probate. The operation and effect of
such provisions of the 1977 zavah as are capable of having
testamentary effect and what that effect should be are matters for the
court charged with the duty of controlling the administration of the
deceased's estate.
The judge's order pronounced in favour of the force and validity of
the 1977 zavah incorporating therein the defectively executed English
will dated 9 August 1977. In my opinion he was justified on the facts
in treating the English will as incorporated in the zavah by virtue of
the reference to the English will contained in the zavah. It is clear
on the facts and from the language used in the zavah that the English
will was a document
[1989] 1 All ER 591 at 604
which was in existence when the zavah was signed and so was capable of
incorporation in the zavah.
For these reasons I for my part would dismiss this appeal.
Appeal dismissed.
Solicitors: Grangewoods (for the fourth defendant); Pickering Kenyon
(for the plaintiffs).
Wendy Shockett Barrister.