Jersey Unreported Judgments

Estate - Will and immovable property of Mr D (Deceased).

[2017]JRC032

Royal Court

(Samedi)

23 February 2017

IN THE MATTER OF THE REPRESENTATION OF C

AND IN THE MATTER OF THE WILL OF IMMOVABLE PROPERTY OF MR D (DECEASED)

Advocate J-M. G. Renouf for the Representor.

judgment

the deputy bailiff:

1.        This is the representation of C ("the Representor") in relation to the last will and testament of immovable property of Mr D who died on 23^rd October, 2015. 

2.        On the 1^st December, 2011, Mr D executed a will of immovable estate situated in Jersey ("the Will").  In that Will he revoked all former wills and testamentary dispositions of immovable estate and devised 60% of his immovable estate to the Jersey registered charity known as G for itself and its successors in title in perpetuity. 

3.        As to the rest, the Will also contained the following devise:

"I devise the remainder of my immovable estate unto the E to be used exclusively for the benefit of the F.  Save that one half of any money not required by F for an immediate project or proposed future project may be used for such other projects outside of Jersey as E may decide and the remaining half ring-fenced for use by F as and when required in the future."

4.        There are two apparent difficulties with the Will.  One is that the attestation clause is not in the usual form in that it does not reflect the fact that the Will was read out to the testator.  We are not asked to make any orders in that regard.  We have seen affidavits from the two witnesses to the Will, Advocate Michael J Backhurst who was Mr D's long term legal adviser, and Miss A Williams, legal secretary.  Both have confirmed that notwithstanding the form of the attestation clause in fact the Will was read out to Mr D as required by law. 

5.        The difficulty which concerns us lies in the fact that the named devisee, E, is not capable of holding immovable property in Jersey.  It is not a corporate entity as such and any immovable property must be held either by a named officer of E from time to time or as is much more frequently the case, by the Representor. 

6.        The Representor is a UK corporate entity with identical purposes to E and its purpose is to hold property for E.  Indeed, we were informed by counsel that the Representor holds immovable property in Jersey for E, specifically a building in Jersey and a piece of land in Gorey. 

7.        We are asked to declare that the Representor is the intended devisee under the Will. 

8.        The immovable estate comprises a house and land called Property 1 in St Helier.  Property 1 had previously been Mr D's home and before that had been owned by his late mother who upon her death had bequeathed it to Mr D and his partner.  When Mr D's partner died, Mr D became the sole owner of Property 1. 

9.        The Will was registered in the public registry on 15^th December, 2015.  The intention had been to sell Property 1 and divide the net proceeds of sale in the appropriate proportions between the two charitable devisees.  A purchaser has been found but a concern was raised as to the ability of E to receive Property 1 and thereafter give good title to its portion of it and it is for that reason that this matter is currently before this Court. 

10.      We have had the benefit of an affidavit from Advocate Backhurst, who as we have noted also acted for him at the time of the execution of the Will. 

11.      Advocate Backhurst's affidavit, dated 24^th January, 2017, explains that he had acted for Mr D throughout and over a large number of years.  His affidavit contains what, to us, appear to be the following important points:

(i)        In January of 1997 Mr D instructed him by letter to draw wills in which Mr D left everything to his partner and vice versa with the intention that the survivor of Mr D or his partner would leave everything to a number of charities including E. 

(ii)       Advocate Backhurst wrote to the secretary of E and in February of that year received a letter from Mr Geoffrey Crill of Crill Canavan Solicitors, instructed by E, who explained that E was not incorporated under the laws of Jersey but rather was incorporated by an Act of Parliament in England and Wales.  He explained that any devise by will should be addressed to the Representor and that is to whom the devise was directed in the draft of the will prepared by Advocate Backhurst which was signed in March 1997. 

(iii)      After the death of his partner Mr D sent instructions in July 2009 seeking certain changes to his testamentary dispositions.  He specified that the property provided under his will for E should be paid to E in Jersey and not to its headquarters in London. 

(iv)      Advocate Backhurst once again wrote to E in Jersey and received a response saying that the F in Jersey did not have any legal status or identity as such within the E framework. 

(v)       After further consideration Advocate Backhurst wrote to E in Jersey and suggested that the devise should be to the Representor in the same form as previously used.  A response came in September 2009 including the comment that "most wills simply state "I give my property ... to E...."  As a result of this, Advocate Backhurst re-drafted Mr D's wills describing E in the way ultimately contained in the will. 

12.      "E" cannot of itself receive an inheritance of immovable estate in Jersey.  In looking to identify the intentions of the testator, however, we have regard to the 1997 will, and to the exchanges with Mr D and Advocate Backhurst in 2009 onwards.  It is entirely clear that Mr D always intended to benefit E.  We do not think that it would have mattered to him what his Will contained in terms of description of the recipient provided it was E that received the appropriate benefit.  Accordingly we are in no doubt that, as the Representor is the only entity that can conveniently or practically receive the benefit that Mr D intended on behalf of E, the Will should be interpreted as a devise to the Representor of that portion of Mr D's immovable property that was expressed as benefitting E and that the Representor holds that portion of the immovable property and can give good title to it. 

13.      In terms of the approach we take to the construction of the will, in our view the primary consideration is to give effect to the intention of the testator which should be ascertained firstly from the language used in the will itself and the circumstances in which it was made (In re Power (1996) J.J. 643).  It is also permissible for us to consider extrinsic evidence in particular in considering whether, for example, a beneficiary has been mis-named (see in Re Wardlaw Milne (1970) JJ 1539). 

14.      We gave some consideration to the question of whether or not in permitting the Representor to hold legal title to Property 1 we were in effect sanctioning a purported creation of trust of Jersey immovable property which would, as a matter of Jersey law, be unenforceable. 

15.      It is no doubt that the Representor often holds real property, and indeed immovable property, for the purposes of E.  Those purposes are, however, synonymous with the purposes of the Representor itself which, so we are informed, is incorporated expressly for the same purposes as E. 

16.      In these somewhat unusual circumstances the reality, therefore, is that the Representor holds the property for the charitable purposes that its constitution requires, which are the same purposes as the named devisee in the will.  We do not think in such a situation that even were the order of the court to create a trust type situation, the fact that the trust is unenforceable as a matter of Jersey law, and the Representor is deemed to hold such property not subject to any trust it nonetheless does so for its own constitutional purposes which are synonymous with the purposes of E. 

17.      This to us lends further support for the proposition that Mr D would have been content, had he been so advised, and indeed as he had done on a previous occasion, to leave the property to the Representor as the correct recipient of his desire to benefit E. 

18.      We had also considered whether any other parties should be joined to the Representation.  We were informed by counsel for the Representor that some researches had been done into the family tree.  Mr D had neither children nor brothers and sisters and his parents were deceased.  Some research into the family tree suggests that there were no near relatives at all and although research has not excluded the possibility of heirs within the appropriate degree who could in theory seek to make claim on an intestate estate, nonetheless we view the likelihood of them doing so, and indeed of succeeding, as remote. 

19.      Were, however, heirs to come forward it may in the future be open to them to make a claim.  We are satisfied that the Representor has not only the ability but would meet any claim so ordered by the Court as indeed was confirmed to us through its counsel. 

20.      For the reasons that we have set out above, we view the position as clear and that a proper interpretation of the Will enables us to say that the correct recipient is the Representor. 

Authorities

In re Power (1996) J.J.643.

Re Wardlaw Milne (1970) JJ 1539.