Validity of a deed of variation – conflict of laws

Increasingly, testators will leave property in a number of jurisdictions. They may, at different times in their lives, enjoy different domiciles, and leave beneficiaries who enjoy different domiciles. It is, therefore, quite usual for a Will to be limited, in terms to property inside, or outside, a particular jurisdiction and for the Will to specify the system of law which is to govern its provisions. Might a different system of law govern an agreed variation of the Will? This was the question considered by the Court in Re Barton Deceased Tod v Barton (2002) EWHC 24 (Ch)

The testator had died, domiciled in Texas. He left a Will, governing the devolution of property outside the United States. The Will contained an express provision stating that it was to be governed by English Law. Under the terms of that Will, the residue was to be held in trust to pay an annuity to the deceased’s son, from the age of 65. Subject thereto, the residue was given to a UK registered Charity. The testator’s son was aged 51 when the testator died. Following the death, negotiations took place between the son, and the charity, under which they entered into a deed of variation so that the son should receive an immediate capital sum, in lieu of the annuity which would not become payable for some 14 years.The deceased’s widow objected to this agreement. Proceedings were brought in the Chancery Division, in which it was argued that the variation was ineffective because, under Texas Law, it was only possible for a trust to be brought to an end if its purposes had been fulfilled. If the purposes of a trust had not been fulfilled, then it would not be possible, under Texas law for the beneficiaries to bring that trust to an end by agreement.