2001/109
ROYAL COURT
(Probate Division)
18th May 2001
Before: |
Sir Peter Crill, K.B.E., Commissioner and Jurats Rumfitt and Georgelin. |
In the matter of the Estate of David Brian Francis Ruellan, deceased.
And in the matter of the Representation of Daniel Young, as Executor, arising from a Statement by the Registrar of Probate, seeking directions of the Court, pursuant to Articles 6(8) and 9(a) of the Probate (Jersey) Law, 1998, in order to determine the formal validity of the Will of the Deceased, as a result of clause 1 of the Will - the provisions for payment to the respective Executor and Trustees - being prefixed by the words "I give and bequeath," and witnessed by one of the Executors.
Advocate R. A. Falle for the Executors.
Advocate D. G. Le Sueur for the three children.
Advocate A. J. Belhomme, on behalf of the Attorney General,
convened by the Court as Amicus Curiae.
judgment
the COMMISSIONER:
1. This matter comes before the Court by way of a reference by the Judicial Greffier under Articles 6(8) and 9(a) of the Probate (Jersey) Law, 1998. The facts are not difficult. The testator, Mr. David Brian Francis Ruellan, made a will of movable estate on 12th April, 2000. In that will he appointed two executors and one executrix, namely his widow, an accountant Mr. Geoffrey Davies and Mr. Daniel Young, a solicitor, as his joint executors.
2. In the clause appointing them executors he gave and bequeathed to each of them the sum of £2,500 in anticipation and I quote "of the time and care they will have to expend in the execution of this my will."
3. There was the usual charging clause, clause 10, in common form except that there was added to it after authorising the proper charges "less the sum received under clause 1."
4. Mr. Young was one of the attesting witnesses to that will. Unfortunately Mr. Ruellan died as a result of an accident in December last year leaving a widow and children.
5. At the beginning of this hearing it appeared that we might have to determine the true construction of clause 1: whether the money 'given' to Mr. Young was part of a sum for which he would be entitled to charge as a professional executor, or whether it was a 'donation' - a legacy - in which case the formalities required by the law of Jersey would not have been carried out. An executor may witness a will - and that was the position before the 'année de jouissance' was abolished by the Wills And Succession (Jersey) Law, 1993. The position now is that if a solicitor is a professional executor and as such is left money it must be clear that that money is in respect of his duties as a professional executor, otherwise, if he were to witness the will, in our view, it would be invalid as it would not conform to the requirements of Jersey Law.
6. Fortunately we were not called upon to rule on this. However, the reason why the matter came before the Court is because the Judicial Greffier, quite properly, referred to the Court the question as to what the payment made to Mr. Young really represented. The Greffier acted in accordance with the provisions of Articles 6(8) and 9(a) which enables him to make such a referral "where it appears doubtful to the Judicial Greffier whether or not a grant should be made" and the Court has the power under Article 6(10)(a) to "direct the Judicial Greffier to proceed with the matter in accordance with such instructions as it thinks necessary."
7. A good deal of discussion occurred this morning as to how the Court should approach the question of that money. It is not necessary for the Court now to determine the point which was cogently advanced by Mr. Falle, who was appearing for the executors and the widow, that the figure in clause 1 of £2,500 was in fact given to Mr. Young as to the other three in their capacity of executors and executrix respectively and in no other way. We were given a large number of authorities which would have been helpful had the Court been required to solve the problem.
8. The question of the invalidity of the will has been cured to this extent: Mr. Young, through Advocate Falle, has indicated that he now repudiates the £2,500. I add in passing, without attempting to shortcut the difficulties the Court might have faced in interpreting clause 1, that he will not in fact lose thereby because the usual charging clause will cover his proper fees and that of his firm for acting as an executor.
9. I mentioned at the beginning of the hearing that it seemed to me unnecessary to have included within the will both the figure of £2,500 given specifically by clause 1 and clause 10 which is a general charging clause, but we need take this no further today. We have the position that Mr. Young has repudiated £2,500. We have been referred to the case of Jackson -v- Jackson (1970) JJ 1285 which enables a defect in a will to be cured but that case relates to immovable property and we are not sure - as Mr. Belhomme has suggested on behalf of the Attorney General - that it would be appropriate to follow that very interesting judgment in relation to movable property.
10. It is quite clear from the manuscrits of Le Geyt and Dalloz that defects in a will can be cured as regards the formalities. In this case the heirs represented by Mr. Le Sueur, with full knowledge of the facts, have ratified the will and consent, in effect, to an order being made by this Court directing the Greffier - who incidentally had already sworn the executors - to issue a grant of probate.
11. The Court has to be satisfied that it would be possible to back-date the curing of the vice in the attestation to the date of the execution of the will. It is clear from the minutes of the evidence of Mr. J.W. Dupré, then Attorney General, to the Commissioners in 1861 (the Report of the Commissioners into the Civil Laws of Jersey, 1861: p.395 para. 8575) that Mr. Young's action cures the problem we faced when we sat this morning. There is also a passage in Basnage: Coûtume Réformée du Païs et Duché de Normandie: Tome II (Rouen 1681): des testamens: pp. 203-204, which indicates that under the laws of Normandy the practice of ratification was recognised and the Court can see no reason why it should not be applied to this jurisdiction.
12. Apart from that there is ample authority to support the view that, in looking at a will of this nature, and under the circumstances, and having regard to the recent Amy judgments (see authorities below) the Court should adopt a generous interpretation.
13. We consider that it would be right and proper to accede to the request of the executors and the heirs and to order the Judicial Greffier to issue a grant of probate. Costs, including those of the Attorney General, will come out of the estate.
1.
Authorities
Le Gros Traité du Droit Coutumier de Jersey (Jersey, 1943) : pp.129-134.
Simon Veuve Lempriere (18th May, 1765) Ex 442.
In the Estate of Father Amy (2000) JLR 80.
In re Estate Father Amy (2000) JLR 237 CofA.
In re Estate of Wainwright (10th September, 1997) Jersey Unreported.
In re Estate of Vautier (12th October, 2000) Jersey Unreported.
Le Geyt: Privileges Loix and Coustumes de L'Isle de Jersey (Jersey, 1953) : pp.56-7.
Dalloz : Testament (Recueil v) pp.1-17.
Re Will of Futter (27th January, 1994) Jersey Unreported.
Les Manuscrits de Philippe Le Geyt: Tome III (Jersey, 1847): des Légataires : pp.111-112.
Halsbury's Laws of England : Testamentary Dispositions and Rectification.
Jackson -v- Jackson (1970) JJ 1285.
Re Bull deceased (24th August, 1999) Jersey Unreported.
Basnage: Coûtume Réformée du Païs et Duché de Normandie : Tome II (Rouen 1681) : des testamens : pp. 203-204 ; 254-255.
Report of 1861 of the Commissioner on the Civil Laws of Jersey : pp xix-xxii.
Ibid: Minutes of Evidence: pp.394-400.
Black's Law Dictionary (5th Ed'n: 1979): p.620.
Re Estate of Priston, veuve Terry (1950-1966) JJ 335.
4 Halsbury 17(2): (iv) Legacies to Executors: pp. 261-2.
Williams Law relating to Wills (5th Ed'n): Vol. 1: Legacy to Executor: p.195-7.
Rossdale: Probate and Administration of Estates (2nd Ed'n): pp. 201-204.
Code Civil (1992-1993): Preuve des Obligations : pp.637-8.