Dellar v Zivy & Ors

Dellar v Zivy & Ors

The will must be interpreted according to English law, as clearly intended by the Deceased. Under English law, the first defendant is entitled to the shares in SCI du Castillon. No issue arises as to the material or essential validity of the will under French or English law. England is the most appropriate forum for the dispute. Although there was wrongful non-disclosure in the application for permission to serve out of the jurisdiction, it would be contrary to the overriding objective to set aside the order in the circumstances.

Parties
Claimant: Howard Dellar; First Defendant: Myriam Zivy; Second Defendant: Gerard Pierre Bertrand Zivy; Third Defendant: Olivia Genevieve Odette Lemarchand; Fourth Defendant: Veronique Roberte Zivy
Jurisdiction
England and Wales
Judgment Date
09 October 2007
Procedural Posture
Probate/will Construction / Judgment on Summary Judgment Application and Related Applications
Outcome
Judgment for the claimant; applications to stay or strike out dismissed; application to set aside permission to serve out of jurisdiction refused.
Legal Topics
Interpretation of Wills, Domicile, Jurisdiction, Forum Non Conveniens, Service Out of Jurisdiction, Material Non Disclosure
Succession Law Private International Law Probate Interpretation of Wills Domicile Jurisdiction Forum Non Conveniens Service Out of Jurisdiction +1 more

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Parties

Howard Dellar

Claimant

Myriam Zivy

First Defendant

Gerard Pierre Bertrand Zivy

Second Defendant

Olivia Genevieve Odette Lemarchand

Third Defendant

Veronique Roberte Zivy

Fourth Defendant

Procedural Posture

Probate/will Construction / Judgment on Summary Judgment Application and Related Applications

Legal Issues

  1. 1 What law governs the interpretation of the will of Pierre Paul Robert Zivy?
  2. 2 Does the will entitle the first defendant to the shares in SCI du Castillon?
  3. 3 Is England the appropriate forum for the dispute?

Ratio Decidendi

The will must be interpreted according to English law, as clearly intended by the Deceased. Under English law, the first defendant is entitled to the shares in SCI du Castillon. No issue arises as to the material or essential validity of the will under French or English law. England is the most appropriate forum for the dispute. Although there was wrongful non-disclosure in the application for permission to serve out of the jurisdiction, it would be contrary to the overriding objective to set aside the order in the circumstances.

Court Disposition

Judgment for the claimant; applications to stay or strike out dismissed; application to set aside permission to serve out of jurisdiction refused.

Orders

  • Declaration that the will is to be interpreted according to English law and the shares in SCI du Castillon (or their proceeds) pass to the first defendant.
  • Application to stay or strike out the claim on forum non conveniens grounds dismissed.