Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Ronge and Le Heuzè
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REPRESENTATION OF PETER JOHN YVES HOWARD
RE: THE WILL OF IMMOVABLE ESTATE OF THE LATE YVONNE MARIE HOWARD
Advocate J. P. Rondel for HM Attorney General.
Advocate N. H. MacDonald for the Representor.
judgment
the deputy bailiff:
1. This application concerns the Court's power to recognise a purported renunciation of an interest in immovable property, devised under the terms of a registered will, a matter upon which we were informed there is no previous precedent. Mrs Yvonne Howard ("the testatrix") made her will of immovable property on 17th November 2008.
2. The only immovable property which the testatrix left in her will was Dunbar Cottage, St Saviour where she had lived. The will was straightforward in its terms. The testatrix left her immovable estate in two equal parts to each of her two sons, Peter and Stephen Howard and their respective spouses - leaving 50% to Peter and his wife Judith, and 50% to Stephen and his wife Dawn. Peter and Stephen were the only children of the testatrix. Dawn died on 11th April 2017, predeceasing the testatrix who died on 7th November 2017. Accordingly, one 50% share in Dunbar Cottage passed to Stephen alone. Peter and Judith separated in July 2013 whereupon Judith left Jersey to live in England. Peter remains living in Dunbar Cottage. Peter and Stephen registered their mother's will in the Public Registry in July 2018. Judith was not a party to that application, although she was fully aware of the terms of the will. She elected not to renounce any claims to the property until financial matters between her and Peter were resolved. They obtained their decree absolute in February 2020. They completed the financial aspects of their divorce in December 2021 as recorded in an order made by the Bury St Edmunds County Court. In his affidavit Peter states "From the outset of ... negotiations it was envisaged that [Judith] would give up any interest in Dunbar Cottage and we duly came to an agreement whereby she would renounce her interest in my mother's immovable (and movable) estate in exchange for a separate financial payment".
3. Judith considered executing a conveyance in Peter's favour, passing her interest in Dunbar Cottage to him but she received English tax advice to the effect that this might create inheritance tax liabilities in England for her or her heirs.
4. Accordingly, Judith swore an affidavit on 19th October 2021 in which she declared that she did not "desire to take my interests under the Will" and said "I hereby disclaim and renounce absolutely and irrevocably and without reserve my interest under the Will". This affidavit sworn by Judith was released when the settlement between her and Peter was finally agreed. Subsequently, Peter made this Representation to the Royal Court asking the Court to confirm the effect of this renunciation made by Judith in relation to her share in Dunbar Cottage.
5. The Attorney General was convened to the hearing of this Representation in order to assist the Court on any relevant principles of law. The parties agreed that the Court has power to order the renunciation of an interest in a will of immovable estate in limited circumstances, such as where the person wishing to renounce their interest was not party to the application to register the will of immovable property and had not accepted the bequest. Judith was plainly not a party to registration of the will - if she had been then she would have been disabled from making this application. However, she was aware of its registration.
6. Counsel for the Attorney General contends, quite rightly, that there is a public interest in the records in the Public Registry being reliable. He suggested it may be appropriate for the Court to find that a prescription period applies in relation to an application to renounce an interest in immovable property owing to that requirement and that such period should be a year and a day. In these circumstances, Judith's application may be out of time subject to any finding that she was under an empêchement during this period.
7. It is clearly possible for a person to disclaim a legacy. In his Traité du Droit Coutumier de L'ile de Jersey, Le Gros writes that:
"Nul n'est légataire qui ne veut. Il est loisible à toute personne de renoncer au legs qui a été fait à son benefice." (P.128, Traité du Droit Coutumier de L'ile de Jersey).
The Attorney translates this passage to mean that:
"No one is a legatee who does not want to be so. It is permissible for any person to renounce a legacy that has been made to his or her benefit."
8. In support of this statement, Le Gros cites Ex p Blampied 1925 Juin 27. In Ex p Blampied, Mrs Susanne Blampied, the wife of the deceased, was named as the universal legatee of the deceased's immovable estate. At the same time or shortly before the registration of the deceased's will, Mrs Blampied renounced her interest in the estate. Further we have been shown two Acts of Court, one from September 2011 and one from 3rd August 2019 indicating that in both cases persons disclaimed their interest under wills of immovable estate prior to or at the time of the wills being registered. No reasoned judgments accompanied those applications and the point raised in this case did not arise. Both parties accepted that renunciations of interest under wills of immovable estates are infrequent in Jersey.
9. The Loi (1851) sur les testaments d'immeubles is silent in relation to the regulation or restriction of a renunciation of an interest in immovable property. As such, it may be necessary from time to time for the Court to exercise its inherent jurisdiction in order that a person is not made a legatee who does not want to be.
10. In respect of movable property, the position is different - the right to renounce is codified in Article 26 of the Probate (Jersey) Law 1998 which provides:
"Disclaimer of interest
(1) A person beneficially entitled to an interest in the movable estate of a deceased person may, at any time before the interest is distributed to him or her, disclaim the interest.
(2) A disclaimer shall be made by giving notice, in such form as may be prescribed, to the Judicial Greffier and to the executor or administrator, as the case may be.
(3) Where notice is given in accordance with paragraph (2), the person making the disclaimer shall be treated as having died before the deceased person for all purposes relating to the movable estate of the deceased person."
11. In Jackson -v- Jackson [1970] JJ 1285, the Court held when analysing the provisions of the Loi (1851) sur les testaments d'immeubles: "The only tenable view, as we comprehend the matter, is that Article 14 of the Law of 1851 calls upon the Court to discharge a ministerial duty and, accordingly, the Court is bound to register any document which purports to be testamentary and which relates to real estate situated in the Island. Any other view would require the Court to pass judgment on persons unheard and issues untried, which no Court can do". In this case, the Act of Court registered on 6th July 2018 is an "acte authentique" in the sense that it operates as the transfer of title from the testatrix to the legatees under her will.
12. There were three questions for the Court to determine:
(i) Has Judith, by her conduct accepted the legacy?
(ii) If not, must she renounce the interest under the will within a certain period of the registration of the same?
(iii) If she has, subject to the order of this Court, successfully disclaimed her interest under the will from when does that take effect?
13. We now turn to the first issue. A person who accepts the interest under a will cannot thereafter disclaim it. Such an acceptance may occur in a variety of ways. For example, on the facts of this case, it would have occurred if Judith had occupied Dunbar Cottage after the death of the testatrix or had either alone or with Peter and Stephen borrowed against her/their interests whether or not such borrowing led to the registration of a charge against the property, or indeed dealt with the interest in any way so as to prejudice the rights of third parties. All such circumstances would result in a loss of ability to renounce her interest under the will. Indeed, the Jurats were troubled by the fact that, in this case, Judith had benefitted from this interest to her advantage as she had relied upon the interest during negotiations in her divorce proceedings in order to secure a greater financial settlement than otherwise would have been the case. We were concerned that this may have amounted to Judith accepting the legacy, but ultimately we concluded that she had not accepted the same even though she had benefitted indirectly from her promise to renounce.
14. As to the second issue, it was agreed by the parties that there was no established prescribed prescription period for such an application and we were provided evidence as to various other prescription periods in respect of rights connected to wills. Article 15 of the Loi (1851) sur les testaments d'immeubles states:
"Les actions en nullité de Testaments contenant des legs d'immeubles devront être intentées dans l'an et jour de l'Acte de la Cour Royale qui en ordonnera l'enregistrement."
This is translated as "Actions to annul wills containing devises of immovables shall be instituted within a year and a day of the Act of the Royal Court ordering the registration of the will".
15. In Robertson (née Cowan) and Mackay (née Cowan) -v- Lazard Trustee Company (C.I.) Limited [1994] JLR 103, Bailhache, Deputy Bailiff, as he then was, gave consideration to the correct prescription periods for various actions attacking testamentary dispositions:
(a) An action to set aside a will relating to movable property or to have it reduced ad legitmum modum must be instituted within a year and a day (see Le Geyt, Privilèges, Loix & Coustumes de L'Isle de Jersey, titre VII (des Testamens), art. 5, at 57 (1953);
(b) An action to set aside a will relating to immovable property must be instituted within a year and a day of the Act of the Court ordering its registration (as above, see Article 15 of the Loi (1851) sur les testaments d'immeubles); and
(c) An action to set aide an inter vivos gift of immovable property as being testamentary in nature and contrary to law must be instituted within a year and a day of the donor's death: (see Latter -v- Doyen de L'Isle de Jersey).
16. The Court in Robertson was dealing with the prescription period applicable in respect of an attempt to reclaim gifts made inter vivos into a trust made by the settlor over three years after the plaintiffs knew of the contents of the settlor's will. The plaintiffs contended that there was no limitation period applicable, and the defendants contended that the prescription period was a year and a day. In the concluding part of the judgment the court held:
"It may be noted that an action to reduce a will ad legitimum modum can result from a preference given to a widow or a child contrary to law. But it can also result from a preference given to a stranger (such as the trustee of a settlement) who would receive under the will more than the tiers disponible. In such event, the action must be brought within a year and a day. Is there any significant distinction to be drawn in this context between testamentary gifts and gifts inter vivos? There seems no logical reason to restrict the right of an heir to challenge a testamentary gift within a time frame of a year and a day, but to allow an heir to challenge an inter vivos gift which is testamentary in nature whenever he sees fit. As a matter of public policy, it would seem even more desirable that a challenge to an inter vivos gift which may have been made many years before should be made in a timely manner. Of course there are times when, as Poingdestre put it, prescription sleeps, and a prescription period can thus in appropriate circumstances be extended. A time of war is one example. In Latter -v- Doyen de L'Isle de Jersey the donor died on January 20th, 1945 when the Island was under enemy occupation. The defendants in that case conceded that the prescription period of a year and a day commenced only on the day when the Island was liberated. Another example is a just and legitimate ignorance of the facts giving rise to the right of action.
...
In my judgment, the prescription period for an action en nullité at the instance of an heir seeking to declare invalid an inter vivos gift by a deceased donor is a year and a day from the date of death."
17. The Attorney General submitted that in circumstances where the legatee was not a party to an application to register the will of immovable property, there was nonetheless a strong public interest in a prescription period applying in relation to such an application so as to ensure certainty and accuracy of the Public Registry. In Re Moustras [2006] JLR 491, the Court said this:
"The Public Registry is one of the oldest land registries in Europe, having been created by Act of the States in 1602 at the instigation, it is said, of Sir Walter Raleigh, then Governor of Jersey. It is a registry of transactions in immovable property and purports to record not only the ownership of land but also all obligations which are extant and which affect the land. It is axiomatic that the accuracy of the records in the Public Registry is of great importance, both in terms of commercial certainty and in the public interest. For many people, the purchase of a house or flat is the most significant commercial transaction of their lives and it is undesirable that shadowy obligations should linger in the records and that there should be uncertainty as to their legal validity."
18. In Fogarty -v- St Martin's Cottage Limited [2015] (1) JLR 356, the Court made these remarks:
"A person is able to ascertain the ownership of Jersey real estate by a check in the Public Registry of this Island; and because the practice is to ensure that there is included within the contracts passed before the Royal Court a full description of the property which is the subject of the transaction, with its boundaries and servitudes affecting it, the Public Registry search establishes certainty for those who are transacting in other respects with the landowner in question. Wills of real estate are similarly registered on the death of the testator; as are contracts of division of inherited estate."
19. By the same token, a creditor will wish to consider the contents of the Registry/carry out a check in order to establish whether a debtor is fondé en héritage or to establish the extent of the owner's equity, or the extent of the creditor's risk in providing credit.
20. However, Pothier Traité Des Successions, Chapitre III, Section IV "De la Repudiation des Successions" says at page 305:
"On ne peut plus répudier une succession après qu'on l'a acceptée; mais il est toujours temps de la répudier, quelque long temps qui se soit écoulé, tant que nous n'avons fait aucun acte d'héritier, ni pris la qualité d'héritier."
The Representor translates this passage as follows:
"An estate can no longer be repudiated after it has been accepted; but there is always time to repudiate it, no matter how long a time has elapsed, as long as we have not done any acts of heir nor taken the status of heir."
21. This would suggest that no prescription period is required.
22. Of some interest is the statutory prescription period laid down in Article 20A of the Wills and Succession (Jersey) Law 1993 in circumstances where there are dealings with the immovable estate of the deceased and one or more of the heirs are not joined to the contract of sale. Those parties are bound by the contract and have a period of 10 years to claim their share in the sale proceeds:
"Sale or donation of immovable property
(1) Where -
(a) immovable estate has devolved, whether on an intestacy or under a will registered in the Public Registry, on more than one heir at law;
(b) one or more, but not all, of the heirs at law join in a contract of sale or donation of the estate, or any part of it or any interest in it; and
(c) the purchaser or donee joins in the contract in good faith, in ignorance of the existence of any heir at law who has not joined in the contract,
title in the estate or part or interest shall pass to the purchaser or donee, as the case may be, as if the contract had been joined in by all of the heirs at law.
(2) Where title in any immovable estate or interest passes to a purchaser or donee in the circumstances described in paragraph (1), an heir at law who did not join in the contract by virtue of which title passed to the purchaser or donee, shall be entitled to claim his or her proportionate share of the proceeds of sale or, in the case of a donation, of the value of the estate or interest conveyed, from the heir or heirs at law who joined in the contract and any heir at law who has previously made a successful claim under this paragraph.
(3) A claim under paragraph (2) must be made within the period of 10 years following the date the contract was passed.
(4) For the purposes of this Article "heir at law" means -
(a) a person on whom immovable estate has devolved on an intestacy, in accordance with Article 4; or
(b) a person on whom immovable estate has devolved, under a will registered in the Public Registry, by virtue of being a person of a class described in the will."
23. If we held that a prescription period applies in this case, then we can see the force of the Attorney General's argument that it should be a year and a day, which is consistent with certain prescription periods in this area of law. Furthermore, if we were to find that there was such a prescription period then this is not a case where prescription would have "slept", there is no evidence of empêchement de fait or de droit - Judith was not under a disability and has known throughout that she was a beneficiary under the will of the testatrix.
24. There are clearly good reasons (in addition to precedent) which underly the prescription periods described by Bailhache, Deputy Bailiff, in Robertson -v- Lazard. In the case of the reduction of a will ad legitmum modum, it is important for beneficiaries under a will to know what they are to receive as soon as possible and important for any executors to know of any challenges within the requisite period. Furthermore, it is important that any challenge to the validity of a will be instituted swiftly so that the parties to the will know where they stand, and any executors can complete the administration of the estate. The same applies to actions to set aside inter vivos or testamentary gifts at the instance of an heir in respect of gifts of movables or immovables.
25. However, the position in relation to renunciation of an interest under a will of immovable estate is different in our view. The consequence of a late renunciation is to benefit other beneficiaries of the immovable property in question. It is true that persons administering the estate may conclude the administration without the knowledge of such a renunciation. But there is no risk of those consulting the Public Registry being misled, as the legatee identified by the Public Registry as such remains entitled to benefit unless and until they make an application to disclaim and an act recording such disclaimer is registered in the Public Registry. Accordingly, "commercial certainty" and "the public interest" as referred to in Re Moustras should not be prejudiced. Having said that, we accept there are some policy reasons to require a legatee to determine whether or not to accept the legacy within a reasonable time and make an application to disclaim it in those circumstances.
26. It is not necessary for us to survey the wide field of Jersey authorities pursuant to which prescription periods have been identified, often justified by reference to the sort of action concerned and the indications as to the appropriate duration of the prescription period from customary law. Certainly, the authorities referred to above are suggestive of a prescription period of a year and a day in relation to most actions in relation to land, and for a period of 10 years in relation to most actions in respect of movables, including breach of contract. However, this is not a matter in which a claim is being made for possession or title in respect of an immovable property but renunciation of the same. We note the general statement of principle in Re Esteem [2002] JLR 142 where the Court held "We think that the time has come to hold that the 10-year period referred to by Le Geyt is a general period which should be taken to apply to all personal actions and all actions concerning movables, save to the extent that they have already been held to be subject of a different period, e.g. tort, actions concerning estates etc., or that some other period is, by analogy, clearly more applicable. The 30-year period should be confined to actions for deception d'outre moitié and other actions, if any, where that period is already established by judicial decision or by statute." We note that in Northwind Yachts Limited [2005] JRC 050 the Royal Court expressed the preliminary view that the claim in breach of fiduciary duty was prescribed after 10 years. 10 years also applies to an action brought upon a judgment - see Article 7 of the Law Reform (Miscellaneous Provision) (Jersey) Law 1967. We have referred to Article 20 of the 1993 Law above which involves claims arising out of immovable property left under a will.
27. Having considered the matter carefully, and cognisant of the fact that disclaimer of an interest under a Will will result in a benefit accruing to others and that any attempt to disclaim an interest will be unsuccessful if any third parties are adversely affected, we have concluded that no prescription period should apply. As we have held that the Court has the power to refuse an application to disclaim if third parties are adversely affected, it follows that the Court has a discretion to exercise. Delay will be a factor and the longer a beneficiary leaves an application to disclaim, then the more likely it is that the Court may consider refusing the same. All such applications should be supported by an affidavit. In any event, a person wishing to relinquish an interest may do so at any time by transferring it to co-owners or third parties by contract. There would be no difficulty, on the facts of this case, if the two sons were to sell Dunbar Cottage, with Judith at any time joining as a party to that transaction for the purpose of conveying title to a purchaser; her interest subsists until she disclaims it or transfers it to a third party.
28. The third and final issue is the date at which disclaimer is effective: is it the date that the act of the Royal Court is registered in the Public Registry or is it some earlier date? We have already noted the effect of disclaimer of movable property under Article 26 of the Probate (Jersey) Law 1998. In our view, the same principle applies to disclaimers of immovable property. We were supported in this view by Le Gros who says:
"Conditionnelle elle implique necessairement que l'heritier ne renoncera pas a la succession. S'il y renounce, alors la loi donne un effect retroactive a sa renunciation."
29. In translation, this provides [having considered the principle of le mort saisit le vif] ... "It necessarily implies that the heir will not renounce the succession. If he renounces it, then the law gives retroactive effect to his renunciation".
30. Accordingly, Judith may renounce her interests under the estate of the testatrix and we order that the said renunciation of her interests under the will of the immovable estate of the testatrix be registered in the Public Registry so that it may have effect from the date of death of the testatrix.
Authorities
Probate (Jersey) Law 1998.
Ex p Blampied 1925 Juin 27.
Traité du Droit Coutumier de L'ile de Jersey, Le Gros.
Jackson -v- Jackson [1970] JJ 1285.
Robertson (née Cowan) and Mackay (née Cowan) -v- Lazard Trustee Company (C.I.) Limited [1994] JLR 103.
Latter -v- Doyen de L'Isle de Jersey.
Wills and Succession (Jersey) Law 1993.
Re Esteem [2002] JLR 142.
Northwind Yachts Limited [2005] JRC 050.
Law Reform (Miscellaneous Provision) (Jersey) Law 1967.