Jersey Unreported Judgments

Estate

[2022]JRC201

Royal Court

(Samedi)

29 September 2022

Before     :

Advocate Matthew John Thompson, Master of the Royal Court

 

The Plaintiffs appeared in person.

Advocate G. D. Emmanuel for the Defendant.

 

CONTENTS

		Paras
1.	Introduction	1
2.	Background	2-26
3.	Decision	27-40
4.	Costs	41-42

judgment

the MASTER:

Introduction

1.        This judgment contains my detailed reasons in relation to the defendant's application to rester sur ses avances and whether certain consequential orders contained in an Act of Court dated 14^th July 2022 should be varied.

Background

2.        The present proceedings concern the moveable estate of the parties' late mother (Janet Angela Walker (née Watson) ("the deceased") and the request made by the plaintiffs that the defendant rapport à la masse all lifetime gifts made by the deceased to the defendant during her lifetime.  The parties are siblings.

3.        The deceased's Will of moveable property dated 26^th November 2014 appointed the defendant as executrix and left the estate to be divided equally between the parties.  Due to the present dispute the defendant is prohibited from acting as executrix due to a caveat filed by the plaintiffs.

4.        The proceedings were commenced by the plaintiffs by an order of justice dated 23^rd March 2021 seeking that the defendant be removed from the executorship and make an account of all avances de succession and rapport à la masse all lifetime gifts.

5.        By an Act of Court dated 11^th December 2020 the defendant was required to make an account of all avances de succession from the deceased by 22^nd January 2021.

6.        On 22^nd January 2021 the defendant provided an account which was updated by a statement provided in February 2021 and an updated statement was provided on 12^th March 2021.

7.        On 12^th March 2021 the Royal Court made an order that the defendant rapport à la masse all lifetime gifts received by her from the deceased.

8.        On 14^th April 2021 the defendant filed an answer which stated in relation to the order of justice as follows: -

"In relation to paragraphs 4 to 10 regarding rapport à la masse: on 12 March 2021, following agreement by the Defendant to the same, the Royal Court ordered that the Defendant make rapport à la masse and the Court acknowledged the Defendant's caveat that she may rester sur ses avances."

9.        Subsequently despite various stays granted so that the parties could try to resolve their differences, no settlement was achieved.

10.      Accordingly, the matter came back to court 4^th April 2022.

11.      Shortly before the hearing on 4^th April 2022 Advocate Emmanuel for the defendant wrote to the Master's Secretary as follows: -

"Dear Mrs Harries, I should be grateful if you would inform the Master in advance of tomorrow's hearing that:

a. Following failed settlement negotiations, my client wishes to take part in the moveable estate of the parties' late mother (the "Estate") in line with her wishes within the moveable will dated 26th November 2014; and

b. Accordingly, she understands the requirement to pay into the Estate any advances she received from the parties late mother during her lifetime with reference to her statement dated 10th March 2021. Accordingly, rapport a la masse will potentially be a further live issue in the remaining proceedings."

12.      As a result of this email on 4^th April 2022 I made the following orders: -

"1.       having agreed to pay into the movable estate of the Parties' late mother any advances the Defendant had received during her mother's lifetime, the Defendant shall account for and pay to the moveable estate any such advances;

2.        the payments to be made by paragraph 1 of this order shall be made to whoever the Royal Court determines shall act as executor;

3.        the Defendant's statement dated 10th March 2021 shall be verified by affidavit;

4.        the Defendant shall file a supplemental statement by no later than 5:00 p.m. UK time Friday, 29th April 2022, identifying any other advances the Defendant has received and not referred to in the statement dated 10th March 2021, such supplemental statement also to be verified by affidavit..."

13.      I also made certain other orders in relation to discovery and then stayed the matter for mediation.

14.      Paragraphs 3 and 4 of the Act of Court of 4^th April 2022 had been complied with.  Paragraphs 1 and 2 have not been complied with.

15.      The defendant did not appeal the Act of Court of 4^th April 2022.

16.      On 14^th July 2022 the matter returned to me because a further attempt at mediation had not succeeded.

17.      Accordingly, I made the following orders at paragraphs 1 to 4 of the said Act of Court of 14^th July as follows: -

"1.       within 7 days the Defendant shall provide or identify the evidence relied upon to prove that the claimed estate expenses (but not the claim for care) have been paid by the Defendant such evidence to be provided to the Plaintiffs and to the Court;

2.        within 21 days the Defendant shall pay into court the lifetime gifts that are admitted that have been paid to the defendant in the sum of £54,043.00 less any expenses paid in accordance with paragraph 1 of this Act of Court;

3.        once an executor is appointed pursuant to the directions given by this Act of Court by agreement between the Parties any undisputed balance of the monies paid into court may be released to the executor;

4.        within 7 days the Parties shall attend upon the Bailiff's Judicial Secretary to fix a hearing date with a time estimate of 1 day for the Royal Court to determine whether or not the Defendant may continue as executor..."

18.      I also made the following orders at paragraphs 9 to 11 as follows: -

"9.       also within 6 weeks the Defendant shall also use her best endeavours to obtain from her bank a written explanation as to why certain statements had been lost in 2018 and 2019;

10.      the Defendant is further directed within 6 weeks to seek to obtain bank statements for account number 23720764 at Barclays Bank in Jersey and from any account maintained by the deceased with Credit Agricole, France and the caveat is varied accordingly by consent to permit the Defendant and her advocate to obtain copies of such statements;

11.      within 10 weeks of this Act of Court the Defendant shall file an affidavit setting out the Defendant's evidence in full to stand as evidence in chief in relation to: -

a.        the Schedule of Loan payments disclosed by the Defendant setting out for each loan payment who the money loaned was actually paid to and how it was used; insofar as any of the loan payments represent any earnings of the Defendant paid into any bank account of the deceased, the Defendant shall explain whether any such earnings or any part of them were used at all for the Defendant's benefit and if so how.

b.        why the loan payments are said to be loans and the full circumstances leading to each and every repayment of the loans which took place in 2018;

c.        any evidence the Defendant wishes to rely on in relation to any expenses payments that remain disputed and the claim for care..."

19.      In addition, I gave directions for the exchange of skeleton arguments in relation to the issue referred to the Royal Court namely who should act as executrix.

20.      On 21^st July 2022 I was informed by Advocate Emmanuel by email that the total figure to be paid into court was £61,255.98 pursuant to paragraph 2 of the Act of Court of 14^th July 2022.

21.      On 1^st August 2022 Advocate Emmanuel wrote to me with an application that the defendant be permitted to change her position to rester sur ses avances with the remaining orders made on 14^th July 2022 being varied as a consequence with a stay being sought in the interim.

22.      The defendant filed an affidavit in support of her application.  Paragraphs 10 to 12 of the affidavit states as follows: -

"10.On or around March 2022 the Defendant received notice via Viberts that the Plaintiffs were no longer instructing their legal representatives and from that point on, it has become even more difficult to negotiate with them and their settlement offers have become much more unreasonable.

11. Accordingly, from a financial standpoint, I have no option now, but to rest on my advances and risk losing the Sentimental Items. It is incredibly upsetting that I now have no choice but to do this as it means that all of my mother's wishes are unlikely to be respected.

12. I know that the Plaintiffs will state that I keep changing my position, but this has been because of their actions as set out above"

23.      Paragraph 18 states as follows: - .

"18. I note that pursuant to paragraph 2 of the Act of Court dated 14th July 2022 (as amended on 27th July 2022 and exhibited as JW1) I was ordered to make a payment into Court that reflected the amount of monies that I had received as Gifts. Viberts wrote to the Master on 1st August 2022 in this regard and I can only apologise for not complying with my obligations earlier. However, I had a genuine belief that settlement could be reached but alas it could not and despite recent attempts remains unresolved"

24.      I have set out these paragraphs as they contain the specific reasons relied upon by the defendant in support of her application.

25.      In response to Advocate Emmanuel's letter of 1^st August 2022, I replied by letter dated 2^nd August 2022 indicating that I wished to be addressed on the law as to when a client may withdraw from a compromise in light of the Acts of Court of 4^th April 2022 and 14^th July 2022.

26.      Prior to the hearing I also draw to Advocate Emmanuel's attention my decision in Bogensberger & Anor v Sinel [2018] JRC 228.

Decision

27.      The approach to be adopted in my judgment to the defendant's application was made clear in Bogensberger & Anor v Sinel.  Paragraphs 52 to 55 state as follows: -

"52. The starting point for varying a consent order is Marett v Marett [2008] JLR 384. The headnote summarises the position as follows: -

"A consent order could be varied or set aside only in exceptional cases in which (a) the order was based on an error of fact (e.g. misrepresentation or misunderstanding as to the position or in relation to the assets); or (b) a supervening event undermined or invalidated the basis of the order. A consent order was interpreted as if it were a contract (although its legal effect was derived from the court order and did not depend on the parties' agreement). It could, therefore, be set aside if there were grounds that invalidated the underlying contract."

In the present case there was no question of any error arising. The question is rather whether the undertaking or the subsequent delay that has emerged and the position of the parties in that there is now overlap between the two proceedings means that the Royal Court may vary the stay previously agreed by consent.

53. In JT v JCRA referred to above, Sir Michael Birt recognised that the court always retained an inherent jurisdiction to revoke or vary interlocutory orders in the light of changing circumstances although on the facts he refused to exercise his discretion to do so. This led him to state at paragraph 30(i)-(iv) as follows: -

"30 It is therefore a matter of discretion as to whether in all the circumstances the court considers it just and appropriate to revoke or vary the interim order given the withdrawal of the appeal by JT. I have carefully considered the points made on behalf of the JCRA but I have come to the conclusion that it would not be just and appropriate to do so and I would summarize my reasons as follows:

(a)   The starting point is that the parties agreed to delay the commencement date of the decision until seven days after the appeal was determined. The appeal was determined on February 17th and accordingly the effect of the interim order on the facts is that the commencement date is February 24th.

(b)   I appreciate that the JCRA did not interpret the interim order in this manner but a mistake as to the meaning of an agreement by one of the parties is not a reason for setting it aside-see the observation of the Court of Appeal in Home Farm Devs. Ltd. v. Le Sueur (2) ([2015]JCA242, at paras. 46- 47); see also the observation in Marett (3) (2008 JLR 384, at para. 64) that a misunderstanding as to the consequences or ramifications of an agreement is not a defect of consent.

(c)   Where parties have agreed that a decision under appeal will (if the appeal is dismissed) only commence from seven days after determination of the appeal, I consider that there is a heavy burden on a respondent to persuade the court that, despite such agreement and the resulting consent order, the court should nevertheless subsequently ignore that agreement and order that the decision take effect at some date prior to the determination of the appeal, i.e. retrospectively. Having agreed the position, and the court having endorsed that agreement, parties are entitled to plan accordingly in the expectation that, in the event the appeal is dismissed, the position will be as stated in the consent order.

(d)   The JCRA has not persuaded me that it be right to take the unusual course of varying or revoking the interim order in this case so as to order that the decision should come into effect at a date earlier than that provided for in the interim order. I appreciate the points concerning the public interest and the extra 55 days of higher charges and the fact that following determination of the appeal much of 2017 still remained in which the price reductions could be effected but those are matters which the JCRA could have had regard to when deciding whether to agree to the interim order. It would not be right for the court to rely on those matters so as now to change retrospectively what had been agreed between the parties and endorsed by the court. ...

54. In respect of the English cases to which Advocate Dickinson referred me of Chanel, Kingsley and Angel Group, all of these cases related to undertakings offered in lieu of injunctions. This led to His Honour Judge Hodge QC in the Angel Group case to state at paragraph 27 as follows: -

"27 Happily, there is no real issue between the parties as to the applicable legal principles, although there are inevitably differences of emphasis by counsel. Since the freezing injunctions made by Mann J, and continued by Mr Hochhauser QC, had been made by consent on the part of the defendant, who now seeks to vary them, it is necessary to consider the proper approach on an application to vary a consent order, as set out by the Court of Appeal in the leading case of Chanel Ltd. v FW Woolworth & Co. Ltd [1981] 1 WLR 485 at p.492H-493A. It is well-established that it is an abuse of process to later attempt to set aside or vary an interim order on a point that was reasonably available to the defendant at the original hearing. There must have been a significant change of circumstance which was not reasonably foreseeable for the court to entertain such an application"

The point he made at paragraph 29 is also significant and one I agree with. At paragraph 29 Judge Hodge QC stated: -

"29 There is also authority for the propositions that the justification for that principle is that to allow litigants to take points serially in subsequent applications would permit abuse and obstruct the efficacy of the judicial process by undermining the necessary finality of unappealed interlocutory decisions."

55. However, in my judgment there is a distinction between a consent order that goes to the merits of proceedings (as in Marett) or a consent order that resolves an interlocutory dispute such as the granting of injunction relief including by giving undertakings or indeed an agreement to resolve any other procedural applications such as a strike out application, or a summary judgment application, for example and a stay. Clearly parties can only reopen agreements reached by consent to resolve the merits of a claim or a contested interlocutory dispute on the basis of erreur or a supervening event that undermines or invalidates an order. I am bound by Marett to hold this is the case; to hold otherwise would also lead to litigants to taking points serially in subsequent applications which would lead to rehearings of the same arguments or multiple procedural applications on essentially the same issue. There is a public interest in ensuring that the parties stick to the agreements they have reached to resolve interlocutory disputes as much as final disputes."

28.      Advocate Emmanuel accepted that there was no error and therefore that he had to persuade me that a supervening event undermined or invalidated the basis of the orders made in April and July 2022 set out above.

29.      During submission he sought to refer to the financial position of the defendant.  However, I did not permit him to do so because the defendant's affidavit did not contain any reference to the defendant's financial position.  The only matters relevant to the present application whether at paragraphs 10 to 12 and 18 which I have set out above.

30.      In relation to those matters, when the order was made on 4^th April 2022 that the defendant should account for lifetime gifts, she was aware that there was an outstanding issue as to whether she should continue as executrix or not.

31.      Who should be the executor is a separate issue from the question of rapport.  It was also an issue known to the defendant when she agreed to rapport.  The defendant could have taken a different tack and could have elected to rester sur ses avances at which point there would have been argument (raised previously through her advisers) as to whether she was entitled to do so, where she had received more than the disposable third or because the estate was insolvent.

32.      I have referred to this issue because the fact that the parties have not reached agreement in their discussions about who should be executor (which I observe regrettably have been ongoing for a very long period of time and where the parties have been afforded every indulgence) is not something that undermines or invalidates the order that the defendant, through Advocate Emmanuel, had agreed to. 

33.      The defendant was also either aware or should have been aware that how the personal effects of the deceased might be distributed between the plaintiffs and the defendant was a matter for the executor to determine.  That might be her or another independent executor depending on whether or not the plaintiffs' application to remove the defendant as executrix was successful.  Again this is not an issue that invalidates the order made

34.      The quotation in Angel Group case set out at paragraph 54 of Bogensberger is apposite.  To allow the defendant to succeed would be to permit an abuse of process when there is no significant change of circumstance not reasonably foreseeable.  Prior to the Act of Court of 4^th April 2022 the parties had been in discussions for a number of months (and had obtained various stays from the court to that effect). Moreover the Act of Court itself also allowed for further discussions to take place.  The fact that those discussions did not succeed cannot therefore be a significant change of circumstance.  The risk of discussions not succeeding was foreseeable when the defendant agreed to account for lifetime gifts and so does not justify setting aside that agreement.

35.      The final sentence of paragraph 55 in Bogensberger is also apposite as follows: -

"There is a public interest in ensuring that the parties stick to the agreements they have reached to resolve interlocutory disputes as much as final disputes."

36.      In this case the defendant voluntarily agreed in April 2022 to account for lifetime gifts received through Advocate Emmanuel which agreement was recorded in the Act of Court  of 4^th April 2022.  By reaching that agreement, one of the issues in dispute between the parties was resolved, leaving only the question of who should act as executor and the extent of any lifetime gifts received to be determined.  Directions were issued on this basis.

37.      Advocate Emmanuel suggested that I could have regard to the overriding objective because, if his client could change her position, this would end the dispute as his client would retain what she had kept, and any other assets could be distributed between the plaintiffs. However, that approach ignores the arguments the plaintiffs might have raised as to whether the defendant could rester sur ses avances referred to above or whether the estate was insolvent. It is also an unattractive submission because it allows a party to chop and change which is contrary to the public interest referred in Bogensberger.  The public interest that I referred to in Bogensberger therefore applies equally to this case.

38.      The fact that in Bogensberger I varied a stay agreed by consent does not assist the defendant in this matter.  Bogensberger was not about a compromise of a substantive issue between the parties.  In this case the defendant, having agreed to compromise a substantive issue, has not advanced any evidence to justify a departure from the position she agreed to.  The matters raised in her affidavit are not therefore evidence of a supervening event that justifies setting aside what was agreed.

39.      If the position is that the defendant cannot afford to make the payment ordered, then that is something that she should have raised at the hearing and appropriate evidence provided in support of such a position.  She had plenty of time to do so.  In the absence of any such evidence, the financial position of the defendant cannot be taken into account to vary the orders made.

40.      It is also right to refer to the arguments raised by Advocate Emmanuel, where he referred to the principle of an individual electing to rester sur ses avances provided that heir has not committed any acte d'héritier.  However, the issue before me was not the general principles about when a party may elect to retain gifts received.  I accept that the defendant, prior to 4^th April 2022, was entitled to make such an election.  However, she agreed, as recorded in the Act of Court of 4^th April 2022, that she would not make that election and would instead account for any lifetime gifts received.  The application by the defendant was to vary that election which cannot succeed for the reasons set out in this judgment.  I therefore refused the application.

41.      I further made an order that the defendant should make the payment into court required by paragraph 2 of the Act of Court of 14^th July 2022 within 21 days.  If she did not do so, then I also ordered those paragraphs 4(a) to (d), 5(b)(ii) and 15 of her answer be struck out with judgment being entered for the plaintiffs in respect of their application to remove the defendant as executrix.  I made this order because otherwise there was no compulsion on the defendant to comply with the orders previously made to make a payment into court.  The order I made was therefore the only effective sanction available to me to ensure that the defendant complied with the orders made in April and July 2022.

42.      If this order takes effect the plaintiff will then have to apply to the Royal Court for a new executor to be appointed.  This is because, while I consider I possess the power to strike out a defence and to grant judgment in default to remove an executor due to the procedural failings by that executor, only the Royal Court can appoint a new executor consequent upon my decision taking effect.

Costs

43.      In respect of costs, I ruled that the defendant being the unsuccessful party should pay the plaintiffs' costs on the standard basis.  Although previous decisions on costs have been reserved to the trial judge, this application was a standalone application which clearly failed, and which therefore justified a costs order in the plaintiffs' favour.

Authorities

Bogensberger & Anor v Sinel [2018] JRC 228. 

Angel Group Ltd v Davey [2018] WL 01040329