Case No 8BM30498[2009] EWHC 3168 (Ch)IN THE HIGH COURT OF JUSTICECHANCERY DIVISION (PROBATE)Venue LEEDS DISTRICT REGISTRYDate 14 September 2009
Before
Peter Langan(Mercantile Judge, North Eastern Circuit)In the Estate of ASHLEY EDWARD SERVOZ-GAVIN deceased
Between
ANNE AYLINGClaimant(1) EMMA PELAGIA ELIZABETH SUMMERS (the personal representative of the above-named deceased)Defendants(2) SYDNEY MARTIN AYLING(3) ROBERT NOEL AYLING(4) CHRISTINE ANNE DINOULIS(5) KEITH AYLING(6) STEVEN AYLING(7) MRS LESLEY PARSONSDAVID ANTHONY AYLINGANDREA AYLING-NACKE(10) HOWARD MARTIN AYLING(11) ALAN DEREK AYLING(12) ANTHONY STUART AYLINGJUDGMENT
Introduction
[1]After kicking around here in Rotterdam for a week I have at last got a date. Leave tomorrow to join a ship called the ‘Mijdrecht.’ I join in England of all places – Tilbury. Then it’s off to the Pacific via the Panama canal….
February 1990
[2]I went to London for my visa and stayed with Christine in St Albans. They both seemed ok.[3]I was going to ring you but (here comes the excuse) I was fairly shattered after 2½ days of running around then up half the night packing. Anyway I kept nodding off in front of the TV…[4]The trip out here was long. I first left on 21st 0530 to the airport. Ticket arrived 1 hour after the plane had left, so I went back to Hull. Slept all day. I’d been up all night packing.[5]Left again 22nd Feb 0530. [Words missing] to Bombay was 9 hours late. By the time I arrived in Bombay, the transport out to the ship had left, so I had to hang around in Bombay for 2 days waiting (sleeping). Got on board eventually on the 25th Feb.
Subsequent events
[6]You listen to me. If anything happens to me, I want everything to go to Auntie Anne.
[29] Christine went on to say that, before Ashley left, he said
[7]What I told you before still applies. If anything happens to me, if I snuff it, I want everything to go to Auntie Anne.
Critique of Christine’s evidence: general
[8]The first occasion was the day before I intended driving back from my parents’ house in Leeds. I think that it was at the end of the Whitsuntide half-term 1985 but I cannot recall the exact date. It was late spring, early summer. I remember that the weather was very spring-like.[9]As Salter J said in Beech’s case In the Estate of Beech, deceased [1923] P 46 at 57. :
‘I think that, in order to constitute a will, the words used by the testator must be intended by him, at or after the time when he uses them, to be preserved or remembered so as to form the guide to those who survive in carrying out his wishes.’
In other words, in order to be a testamentary act there must be a statement of the deceased’s wishes for the disposition of his property after his death which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request, explicit or implicit, to see that his wishes are acted on.
[42] By section 11 of the Wills Act 1837
[10][A]ny soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this Act.[11]shall extend to any member of His Majesty’s naval or marine forces not only when he is at sea but also when he is so circumstanced that if he were a soldier he would be in actual military service within the meaning of that section.[12]The deceased must be considered to have been a surgeon in the East India Company’s service; his being in charge of recruits for royal regiments, which was no part of his regimental duty, would not constitute him a Queen’s officer. But, with respect to mariners, the exception is extended to merchant seamen, and by parity of reasoning, persons in the military service of the East India Company would seem to be included in the term ‘soldiers’; there is nothing in the section of the Act which restricts the exemption to the Queen’s soldiers. A much older East India case, Shearman v Pyke, decided by Dr Bettesworth in Hilary Term 1724, was elaborately discussed Sir Herbert Jenner Fust (as Sir Herbert Jenner afterwards became) in Drummond v Parish (1843) 3 Curt 522 at 539-542: Dr Bettesworth had said, although it is not clear whether this was one of the grounds of his decision, that “[t]hose who are enlisted in the service of the Company have the same privilege as those in the service of the Crown.”[13]Peter Langan[14]Mercantile Judge, North Eastern Circuit[15]14 September 2009