[2012]JRC106
Before : |
J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Cornu and Milner. |
Between |
Stephen Howard Neill |
First Party Convened |
And |
Lindsey Jane Hiron (Née Neill) |
Second Party Convened |
And |
Advocate Charles Malcolm Thacker Belford Thacker to represent Brian George Neill |
Third Party Convened |
IN THE MATTER OF BRIAN GEORGE NEILL
AND IN THE MATTER OF ARTICLE 7 OF THE PROBATE (JERSEY) LAW 1998.
Lindsey Jane Hiron (née Neill) appeared in person.
Advocate C. M. B. Thacker for the Third Party Convened.
judgment
the commissioner:
1. On 27th February, 2012, the Court declined to declare that Brian George Neill ("Brian Neill") may be presumed to have died and we now set out our reasons.
2. On 29th December, 2008, the Probate Registrar received a letter from Stephen Howard Neill ("Stephen Neill") stating that his father, Brian Neill, had disappeared in Spain on 10th January, 2004, and had not been seen or heard of since. Being unable to find a Will, he inquired as to the grant of Letters of Administration to him as the only son and principal heir. He has one sibling, namely his sister, Lindsey Jane Hiron ("Lindsey Hiron"). Because Stephen Neill could not produce evidence of his father's death, in due course the Probate Registrar presented a statement to the Bailiff dated 1st October, 2010, for the directions of the Inferior Number and this pursuant to Article 7(2) of the Probate (Jersey) Law 1998 ("the Probate Law"). On 18th October, 2010, the Court convened Stephen Neill and Lindsey Hiron as parties and Mr Thacker to represent Brian Neill, pursuant to Rule 4(4) of the Royal Court Rules 2004. Mr Thacker's firm had previously represented Brian Neill in respect of his interests in Jersey.
3. On 10th December, 2010, the Court directed Stephen Neill to file a statement of claim, Lindsey Hiron and Mr Thacker answers and Stephen Neill a reply, which directions were complied with.
4. On 27th September, 2011, the Court directed that a date be fixed for the hearing and inter alia directed the parties to file affidavits. Stephen Neill has failed to comply with that direction and stating himself to be unwell, did not comply with the direction to prepare the bundles. He did not attend the hearing.
5. The Court had available to it the documents enclosed with the Probate Registrar's statement including:-
(i) correspondence with Stephen Neill;
(ii) an affidavit from Stephen Neill dated 11th February, 2010, dealing with the issue of domicile;
(iii) an affidavit from Japp Kruithof Baker, a Spanish lawyer in practice in Alicante, Spain;
(iv) a report from the Guardia Civil.
6. In addition, the Court had affidavits from Lindsey Hiron dated 2nd February, 2012, from Dr Andres Crespo dated 13th January, 2012, a Spanish lawyer who had acted for Brian Neill, from Duncan Stuart dated 26th January, 2012, a director of the local firm of chartered accountants Roscott and from Kevin George Bates dated 26th January, 2012, also a director from Roscott.
7. Turning to the background, Brian Neill was born in London on 23rd July, 1936, and it seems likely that he has a domicile of origin in England. He would now be 75. Lindsey Hiron informed us that he and her mother (with herself and her brother) moved to Jersey in 1973, where he bought the Raleigh Hotel in Trinity. She was thirteen at the time. He later sold that hotel and purchased a block of some thirteen flats in Roseville Street, which he still owns through a Jersey registered company, administered by Roscott. The family lived in one of the flats and were joined there by his mother, who lived in another flat and who died in 1996/7. Her father and mother separated and she returned to England, where she died in 1998.
8. Brian Neill was a keen golfer and travelled frequently to Spain to play golf. In 1998, he bought a villa in Moraira, a town that he liked. He has lived in Spain since then, returning to Jersey two or three times a year to see to his property interests here.
9. Stephen Neill joined his father in Spain after his mother's death where he wrote TV scripts, apparently without success. According to Lindsey Hiron, Stephen Neill was dependent thereafter on his father.
10. According to the statement of claim of Stephen Neill, a friend of his, Colin Murphy, had been staying with him at his father's house in Spain over the Christmas of 2003. On 10th January, 2004, his father drove Colin Murphy to Alicante airport, dropped him off and has never been seen again. Stephen Neill reported him missing on 14th January, 2004. His car was found parked in the neighbouring town of Teulaga. According to the report of the Guardia Civil, there was nothing to indicate that its owner had been attacked or forced to abandon the car. It had been properly locked, with the gear lever (it is automatic) in the parking position. The outside of the car was evenly covered by a layer of dust, indicating that it had been stationary for some days. There are reports of sightings of him in January 2004 following his disappearance and there is a possibility that he called Roscott on the 30th January, 2004, but apart from that, he has not been seen or heard of since, has not drawn on his bank account or used his credit cards and has not contacted his family or friends.
11. Lindsey Hiron has been appointed administrator of his affairs in both Jersey and Spain and they are apparently in good order. In her view there was no urgency in the obtaining of a grant.
12. Under Jersey customary law, there is a presumption of death seven years after the last news. Quoting from the case of Elie Du Val-v-Thomas Nicolas Le Gros ( Exs 1877 Dec. 3rd) as referred to by Le Gros in his Traité du Droit Coutumier de L'île de Jersey at page 86:-
"Considérant que par la Coutume de ce Bailliage, un absent est légalement présumé mort et que sa succession est réputée ouverte après le laps de sept années révolues à partir de la dernière nouvelle."
13. Although there is no recent report of its application, it has been applied consistently in a number of cases in the 18th and 19th centuries (see Godfray-v-West (1888) 212 Ex 411, Marett-v-Robin (1897) 218 Ex 423 and O'Boyle et autres-v-Le Masurier (1905) 223 Ex 500) and there is no doubt that it remains part of our customary law. We note that a similar presumption applies under English law (see Phipson on Evidence 16th edition at paragraph 6-26). There is no bar from calling evidence to rebut the presumption and it is therefore a rebuttable presumption.
14. Article 7(4) of the Probate Law provides as follows:-
"If the Inferior Number is satisfied that the death of the person to whom the application relates may be presumed beyond all reasonable doubt to have occurred on or after a certain date, it may make a declaration to that effect and such order as the circumstances require."
15. In this case, it is Stephen Neill who is applying for a grant and the burden (the persuasive burden) is upon him to satisfy the Court beyond all reasonable doubt that the death of his father may be presumed.
16. Phipson on Evidence explains at paragraph 6-16 that where a presumption operates, the Court may draw a certain conclusion. On most occasions this will be in the absence of evidence in rebuttal, thus assisting the party who bears the burden of proof on that issue. The effect of a presumption may be to require less evidence than would otherwise be necessary.
17. At paragraph 6.17 Phipson on Evidence goes on to say that where a rebuttable presumption of law applies in favour of one party (in this case, Stephen Neill) on the proof or admission of one fact (no news for seven years) another fact (the death of Brian Neill) is to be presumed. Once the presumption applies, the evidential burden is on the other party (in this case, Lindsey Hiron) to disprove the presumed fact. Even if Lindsey Hiron adduces evidence sufficient to rebut the presumption, the persuasive burden remains on Stephen Neill to satisfy the Court that the death of his father should be presumed.
18. It was not in issue that there has been no news of Brian Neill for over seven years. However both Lindsey Hiron and Mr Thacker opposed the Court making a declaration that his death should be presumed and we turn therefore to the evidence to rebut the presumption that he had died.
19. It was Lindsey Hiron's belief that the relationship between her father and Stephen Neill had become intolerable to him and certain comments made by him and what she had learned from friends had led her to believe that he had wilfully disappeared. She supported her belief with the following:-
(i) Stephen Neill had become financially dependent upon his father from in or around 1995 and was living with him rent free.
(ii) She had stayed with her father between June and October 2003. During that time, she had noticed a change in his character and he admitted that he was frustrated with Stephen Neill's unsuccessful attempts at writing, his disinclination to find employment and the need to meet his every expense, no matter how large or small. He was also concerned that he was showing signs of becoming an alcoholic. Those concerns had been expressed by Brian Neill to his lawyer, Dr Crespo. There were a number of incidents described in her affidavit which showed that the relationship between Brian Neill and his son had deteriorated markedly.
(iii) In a candid conversation between Lindsey Hiron and her father in October 2003, he had made it clear that he wanted to live on his own again, relieved from the stress of his relationship with Stephen Neill.
(iv) Her father had often joked about a "runaway fund" going back to the time in 1975 when his wife had had an affair and this in case he decided to leave the marriage. In Lindsey Hiron's view, there was a real possibility that such a fund existed. It was noted that no payments had been made by her father into his Spanish bank account since July 2003.
(v) Her father had been going out with a Bulgarian lady, Varnia, and confided in Lindsey Hiron that he had been very fond of her. She had, however, returned to Bulgaria in September 2003, due to a lack of work.
(vi) There had been reported sightings of him in January 2004 and a search of his car revealed no evidence of any violence. The car was parked within walking distance from Teuleda train station, which serves many cities. He had his driving licence with him and could therefore have crossed borders by land.
20. In all, she concluded that as 2003 drew to a close, her father appeared to be about to re-organise his life in a dramatic fashion. She does not believe he is dead and had rather manufactured his own disappearance to relieve himself of the breakdown in and the burden of the relationship with Stephen Neill. This is not a case, she said, where a person was lost at sea or in a plane crash or whilst climbing a dangerous mountain. There is no evidence whatsoever that he was involved in any such catastrophic event. She expects him to reappear one day.
21. Mr Thacker submitted that Lindsey Hiron had adduced sufficient evidence to rebut the presumption and in his view there was a reasonable doubt as to whether Brian Neill may be presumed to be dead.
22. The standard of proof required under Article 7(4) of the Probate Law, beyond all reasonable doubt, is high (the standard required in criminal cases). Stephen Neill had filed an answer seeking to respond to the assertion that his father might still be alive, but he had failed to file an affidavit as directed or to attend the hearing; conduct which was hardly conducive to the discharge of the persuasive burden upon him as an applicant for a grant. Not only that but the Court was deprived of the ability to hear his evidence and to have it tested on oath in relation to a number of troubling matters raised or alluded to in the papers before us.
23. As it was we had to proceed on the evidence that was before the Court and in particular the evidence of Lindsey Hiron, which was enough, in our view, to rebut the presumption. The Court concluded that there was a reasonable doubt, for the reasons put forward by Lindsey Hiron and Mr Thacker, as to whether Brian Neill had died. It therefore declined to make the declaration.
Authorities
Probate (Jersey) Law 1998.
Royal Court Rules 2004.
Elie Du Val-v-Thomas Nicolas Le Gros ( Exs 1877 Dec. 3rd).
Le Gros, Traité du Droit Coutumier de L'Île de Jersey.
Godfray-v-West (1888) 212 Ex 411.
Marett-v-Robin (1897) 218 Ex 423.
O'Boyle et autres-v-Le Masurier (1905) 223 Ex 500.
Phipson on Evidence 16th edition.