J. A. Clyde-Smith, Esq., and Jurats Olsen and Liston
Carey Olsen Executors Jersey Limited
Advocate Michael Goulborn representing the unascertained beneficiaries of the estate
IN THE MATTER OF THE ESTATE OF EDWARD HAMILTON STIRLING (DECEASED)
AND IN THE MATTER OF ARTICLE 2 OF THE PROBATE (JERSEY) LAW 1998
Advocate A. M. Saunders for the Representor.
Advocate M. C. Goulborn appeared personally.
Mr Andrew Michael Higgs was present as potential Beneficiary.
1. On 31st October, 2014, the Court ordered the Judicial Greffier to make a grant of representation pursuant to the provisions of the Probate (Jersey) Law 1998 ("the Probate Law") in respect of the late Edward Hamilton Stirling ("the deceased") who died domiciled in Jersey on 14th December, 1873, - on the face of it a somewhat surprising proposition.
2. The deceased lived at the property that bears his name, namely Stirling Castle, Mont au Prêtre, in the Parish of St Helier. He was a widower and left no children. He left a hand written will, covering his movable estate (Stirling Castle having been conveyed to a nephew prior to his death) under which two local executors were appointed. Probate was granted to them on 25th February, 1874.
3. The Will is difficult to decipher, but on close examination, comprises a Will dated 6th December, 1873, and an expression of wishes dated 20th November, 1873, some three weeks before he died. It is presumed that the administration of the movable estate of the deceased covered by the Will was duly completed at that time.
4. There is a copy of the Will available from Jersey Archive, copied in a different handwriting, which appears to be dated either 5th or 6th December, 1873. It is identical terms and it is clear to us that it is a handwritten copy of the same document. Nothing turns on this in our view.
5. How is it, therefore, that some 141 years after his death, an application is now being made for a grant of representation? The answer is that the deceased purchased two plots of land in the Northern Territory of Australia ("the Australian Property"), an asset which has remained un-administered in his name and which was recently acquired by the Australian government by compulsory purchase. The proceeds of AUD424,200 (approximately £232,400 at current exchange rates) are now being held by the Public Trustee of the Northern Territory of Australia, which will not release the same until it has received a Court order from the jurisdiction of domicile of the deceased to confirm who is entitled to administer the estate and collect the proceeds.
6. Anglia Research, which is a probate genealogy company based in England, have dealt with a number of cases where funds are held by the Public Trustee and have carried out extensive research into the potential beneficiaries of the Australian estate of the deceased identifying any potential beneficiaries. It instructed the representor to apply for the grant of representation.
7. In these unusual circumstances the Judicial Greffier referred the matter to the Royal Court for directions pursuant to Article 6(9) and (10) of the Probate Law. The issue arose as to whether, in the light of there being no estate in Jersey that required administration, the Court had jurisdiction to issue a grant.
8. Article 2 of the Probate Law is in the following terms:-
"2 Jurisdiction of the Court
(1) The Court shall have all jurisdiction in relation to probates and administrations as it had immediately before this Law came into force, that is to say, jurisdiction -
(a) in relation to the grant or revocation of probate and administration of the movable estate of deceased persons, including jurisdiction to make a grant in respect of a deceased person notwithstanding that the deceased person leaves no estate, and to make a grant of administration of the effects of a deceased person who dies leaving direct heirs who survive the deceased person; and
(b) to hear and determine all questions relating to a testamentary cause or matter." [Our emphasis]
9. There is no Jersey authority on this point, but English law provides useful guidance. Rule 138 of Dicey, Morris & Collins Conflict of Laws 15th Edition provides:-
"The High Court has jurisdiction to make a grant of representation in respect of the property of any deceased person, but in the absence of special circumstances will not ordinarily make such a grant unless there is property of the deceased to be administered in England."
10. The following commentary is provided at paragraph 26-004:-
"... Although it did not matter where the deceased had been domiciled, it was necessary to show that there was property to be administered within the jurisdiction of the court. This requirement could be very inconvenient. When an English domiciliary died leaving property abroad, the foreign court would sometimes refuse to make a grant of representation until a grant had been obtained in England. If the deceased had left no property in England the result was an impasse. In 1932 the jurisdiction of the High Court was therefore extended to allow it to make a grant in respect of any deceased person. But it remains true that the primary purpose of a grant is 'to enable the executor or administrator to administer property in this country.' For this purpose a grant will ordinarily be made as of course. The property to be administered will in the ordinary case be property belonging to the deceased which was in England at the time of his death, but it will also include any of his property which afterwards comes to England, at any rate before a third party has acquired a good title by the law of the place where the property was situate. If there is no property of the deceased to be administered in England, the executor's or administrator's oath which accompanies the application for a grant must state the reason why it is required, e.g. to constitute a personal representative to take or defend legal proceedings, or to obtain foreign representation."
11. Section 2(1) the Administration of Justice Act 1932 is in the following terms:-
"....The High Court shall have jurisdiction to make a grant of probate or administration in respect of a deceased person notwithstanding that the deceased person left no estate."
12. The need to obtain foreign representation was considered in the case of In the Estate of Wayland  2 All ER 1041. That case concerned, inter alia, whether the High Court had jurisdiction to admit Belgian wills to probate in England which did not dispose of English property. There was property to the value of £3,000 in Belgium and to the value of about £64,000 in England. If the executors of the testator's estate did not obtain a grant of the Belgian wills in England, under the law of Belgium duty would have become payable on the whole of the testator's estate, including the £64,000 in England, which duty would greatly exceed the amount of the Belgian assets. The practical effect would be that the executors would have had to abandon the Belgian property, since if they tried to deal with it, the taxes would have exceeded its value.
13. The Court held that it was entitled to make a grant of probate even though it was of a will under which no property passed in England. The making of the grant would obviate an injustice to the estate in respect of the Belgian property and accordingly the Court held that it was proper that a grant should be made.
14. Article 2(1)(b) of the Probate Law is in almost identical terms to s 2(1) of the Administration of Justice Act as extended. The Public Trustee has made it clear that it requires a Court order from the jurisdiction of the domicile of the deceased to confirm who is entitled to administer the estate and collect in the Australian estate. If a grant of representation is not obtained, the proceeds will not be administered and will not be made available to the deceased's heirs.
15. The making of a grant would obviate an injustice to the estate in respect of the Australian Property and accordingly we agreed that it was proper that a grant should be made.
16. The Will of the deceased did not cover immovable property in Jersey or elsewhere and no other will has been located in Jersey or Australia. It would appear, therefore, that the deceased died intestate in respect of the Australian Property.
17. Although the deceased died domiciled in Jersey, Rule 150 of Dicey, Morris and Collins provides as follows:-
"The succession to the immovables of an intestate is governed by the law of the country where the immovables are situated (lex situs)"
18. The representor intends therefore to distribute the Australian estate (less the costs of administration) in accordance with (1) the Intestacy Rules of the Northern Territory of Australia, being the lex situs of the Australian Property at the time of the deceased's death and (2) the line of succession of each heir of the deceased in accordance with their wills or the relevant rules of intestacy. Advice will be obtained from a solicitor qualified in the laws of the Northern Territory of Australia in relation to the intestacy rules of the Northern Territory of Australia at the time of the deceased's death. The Court approved the representor proceeding in that manner.
19. Anglia Research has written to the eighty three potential heirs located to date (all of whom were convened to the proceedings) seeking agreement to its charging its own professional fees being one third of each heir's entitlement plus VAT. It is still awaiting responses from 23 of the heirs, but all of the heirs who have responded so far have agreed to its fee proposal.
20. The Court approved the representor including within the costs of the administration of the estate Anglia Research's professional fees. The costs of the administration of an estate can include work carried out prior to a grant being issued (see In re Estate Moralee  JRC 038 at paragraph 33). The work carried out by Anglia Research to date has resulted in the proceeds held by the Public Trustee being identified, heirs being located and the representor instructed. Its work post the grant will no doubt be on-going.
21. Advocate Goulborn representing the unascertained beneficiaries had no issue in relation to Anglia Research's fees and they had been agreed by a large number of the potential beneficiaries who had been identified. Mr Higgs, whose family represents one line of potential beneficiaries, had attended the hearing and raised no issue. None of the other potential beneficiaries convened had appeared or written to the Court taking issue with the fees of Anglia Research. Accordingly, the Court approved the payment of those fees as a cost of the administration of the estate, subject to those potential beneficiaries who had not agreed or been identified having liberty to apply.
22. In conclusion, the Court ordered that the Judicial Greffier name the representor as administrator of the remaining estate of the deceased, so that the Judicial Greffier may make a grant of representation with respect to the remaining estate if all of the other inquiries which the Judicial Greffier may see fit to institute in relation to the estate of the deceased have been answered to the Judicial Greffier's satisfaction.
Probate (Jersey) Law 1998.
Dicey, Morris & Collins Conflict of Laws 15th Edition.
In the Estate of Wayland  2 All ER 1041.
Administration of Justice Act 1932.