Before : |
Sir William Bailhache, Commissioner, sitting as a single judge |
Between |
Aidan Mauger |
Plaintiff |
And |
Pisamai Mauger, née Sriring, formerly Holliday |
Defendant |
Advocate R. C. L. Morley-Kirk for the Plaintiff.
Advocate D. S. Steenson for the Defendant.
judgment
the COMMISSIONER:
1. On 13 June 2022, the Master gave directions that the present action be set down for a preliminary hearing pursuant to Rule 6/27 of the Royal Court Rules 2002, as amended, such hearing "to determine whether the Defendant may or may not rester sur ces avances in circumstances where the value of the avances exceed the partie disponible". I sat on 1 June 2023 to hear legal argument in respect of this matter.
2. Ralph Cyril Mauger (the "Deceased") was married to the Defendant in April 2012 and died domiciled in Jersey on 26 July 2021. The Plaintiff is the eldest of his two surviving sons by an earlier marriage.
3. For reasons irrelevant to the present application, it appears that from about 2012 the relationship between the Deceased and the Plaintiff came under significant pressure. At all events, the Deceased left the entirety of his net movable estate to the Defendant pursuant to his Will of personal estate dated 22 May 2012. By his codicil thereto dated 18 September 2014, the Deceased named the Defendant as executrix, and following his death on 26 July 2021, the Defendant appointed Ogier Executor and Trustee Company Limited to obtain probate on her behalf pursuant to a Special Power of Attorney. Probate was granted on 31 August 2021. In passing, I note that no argument has yet been made that, having taken out a grant of probate as executrix, the Defendant has therefore approved the Will as an acte d'héritier, is under an obligation in that capacity to act in the best interests of the estate by seeking to recover gifts made by the Deceased and is not permitted to attack the will.
4. The Royal Court ordered on 17 December 2022 that the Will of the Deceased be reduced ad legitimum modum. As was put to me during the course of the hearing, there is apparently some doubt as to whether the estate is or is not insolvent. The Defendant has set out the position in an affidavit dated 28 January 2022 - albeit there is a lack of clarity as to whether that has been sworn - which describes the estate assets as bank accounts with credit balances of £833.82 and a twenty year old BMW motor vehicle of value, only for its spare parts. The Plaintiff contends that there has been excluded from that summary of estate assets the share of a treasure trove payment made by the Government of Jersey to HM Receiver General in relation to the find of a horde of Roman coinage in one of the Deceased's immovable properties and excavated over a five day period between 19 June and 23 June 2012, part of which sum may be payable to his estate.
5. Be all that as it may, the Plaintiff contends that the Deceased made a number of gifts to the Defendant during his lifetime. These included the shares in a Jersey registered company called Majorsites Limited, which owned properties at Le Catillon de Haut in Grouville and in St Helier. The essence of the Plaintiff's case is that, as he is now a beneficiary of the estate pursuant to the reduction of the Will ad legitimum modum, the Defendant should produce a precise and full chronological inventory of the gifts of movable property received by her from the Deceased, including those gifts made by a transfer of assets into the joint names of the Deceased and the Defendant but accruing to the survivor of them; and in addition bring back into the estate the gifts of movable property which she had from the Deceased during his lifetime (make rapport à la masse) so that they can be distributed in accordance with the rules governing the estate. It is asserted by the Defendant that she is entitled to sit on the advances received and not account for them to the estate; and in response the Plaintiff contends that, as a matter of law, the Defendant is not entitled to sit on any advances received by way of gift during the lifetime of the Deceased to the extent that such gifts exceed the tiers disponible. Although this judgment will refer to a number of authorities and commentaries, the heart of the argument lies in two cases, Valpy dit Janvrin v Valpy dit Janvrin (1716) 1 CR 66, (1718) Ex 86 and Le Cornu v Falle [1917] 299 Ex 533.
6. It is that preliminary issue which I am charged to determine, and I am grateful to counsel for the work they have done in putting a number of authorities and commentaries before me for consideration and for their submissions.
7. The Wills and Successions (Jersey) Law 1993 (the "1993 Law") has a long title thus:
"A law to amend the law relating to inheritance, wills of movable and immovable estate and the administration of estates of deceased persons, to abolish certain rules of customary law and for other purposes connected therewith."
8. Article 7(2) provides that:
"Subject to the provisions of Article 8, where a person dies testate as to movable estate and is survived by
.....
(b) a spouse or civil partner and issue -
(i) the surviving spouse or surviving partner, as the case may be, shall be entitled to claim as légitime the household effects and one-third of the rest of the net movable estate, and
(ii) the issue shall be entitled to claim as légitime one-third of the rest of the net movable estate.
...."
9. These provisions represented a change from the customary law which required a mother to leave two-thirds of her movable or personal estate to her children with freedom of disposition over the remaining third - the husband was not entitled as a matter of law to any part of her movable estate, although he could at her option benefit from the remaining third.
10. The customary provision for the légitime is of very long-standing, forming part of the Ancienne Coutume de Normandie - see Terrien, Commentaires du Droit Civil au Pays et Duché de Normandie, printed at Rouen in 1654, Livre VI at page 215:
"et se le testateur est marié et a enfants a sa pouvoir paternel, il ne peut testamenter que des tiers de ses meubles : mais dudit tiers il peut testamenter. Et les deux autres tiers demeurent, l'un pour la femme et l'autre piur les enfants etant a sa pouvoir paternel..."
and very probably forming part of the Très Ancienne Coutume as well. Those rules of succession hail from a time when property was not so much considered as belonging to an individual for him to do as he liked, but rather belonging to him to hold for his lifetime and pass on to his heirs. Men had obligations to provide for their wives and to conserve and improve their estate for the benefit of their family - to act as a bon père de famille. The custom was such that if a man alienated his inherited real estate, his heirs in direct line could demand of the person acquiring the property that it be reconveyed to those entitled to the estate of the alienator. That process - the remplacement des propres - was only abolished in Jersey in 1926.
11. The 1993 Law prescribes what the heirs are entitled to receive from the estate, but it does not prescribe what is or is not within the estate. Part 5 of the 1993 Law deals with the abolition of certain rules of customary law. I take from the summary of those rules that were abolished the implied proposition that other rules of customary law were intended to remain in force. In other words, the custom continues save to the extent that it has been expressly or by necessary implication repealed by the legislation.
12. It will be apparent that I have described at [10] above the obligation of the man as the legal owner of property. At the time these customs emerged, a married woman was not regarded as a person sui juris, able to own property in her own right. She lost that status on marriage, because the marriage created one unit where previously there had been two, unless the husband agreed to apply to the Royal Court for an order for séparation quant aux biens. It will be surprising to some that this state of affairs continued when the States passed the Loi (1878) sur la séparation des biens, a law intended to give greater publicity to the proposed order enabling the spouses to hold their assets separately - so that, before such an order were made, third parties who asserted their rights would be infringed, if it were made, were able to object and be heard. The rule that a married woman was not sui juris and entitled to own property in her own right without an application to the Royal Court was only abolished under a hundred years ago with the passage of the Loi (1925) étendant les droits de la femme mariée.
13. It is reasonable in these circumstances to make the assumption that the concept of a joint bank account which vested in the survivor on the death of the first account holder is, in the context of the légitime, relatively new - similarly, limited liability companies were only possible under Jersey law after 1861 (and even in England and Wales the joint stock company would have post-dated the development of the légitime by several centuries), and the notion that shares in a limited company might be held by a husband and wife jointly and for the survivor of them would have been a foreign concept to those considering the légitime. Indeed, the natural question which would be raised in their minds would be whether the gift into joint names was void for breach of the rule that donner et retenir ne vaut, which still applies to all gifts (other than gifts into trust after 21 July 1989).
14. Given the underlying idea that property was held for the family and that husband and wife formed, as it were, one unit against the world outside, it is also unsurprising that gifts of realty to concubines and to those born out of wedlock were invalid under the customary law; and indeed one sees in Article 13 of the 1993 Law the abolition of the customary rule that gifts to concubines are null. It took an amendment to the 1993 Law in 2010 to establish equalisation of the succession rights of those born within wedlock and those born outside it.
15. Given our juridical and constitutional history, it is natural to start with a reference to the Commentators on the Ancienne Coutume and the Coutume Reformée. There is a consistent theme in the commentaries of both Terrien, Berault, Pesnelle, and Basnage. The key point is that it is the obligation of a father to leave his estate equally among his children, or at least his sons. Terrien (op cit) said at p 211:
"Quand le pere a plusieurs fils, il ne peut faire de son heritage l'un meilleur que l'autre. Et ne peut nul que' qi'il soit, homme ou femme, doner de son fief a nul de ceux a qui il doit eschoir, n'a à leurs hoirs qui descendent d'eux en droite ligne. Mais après son deces tout le fief qu'il tenoit et celui qu'il ainsi donné, doit venir et ester rapport à partie entre ses hoirs."
16. Berault in his La Coustume Reformée du Pays et Duché de Normandie 6th ed printed at Rouen (1660) refers at p 483 to Article 431 of the Coutume to the right of a person ged 20 or over to give up to a third part of his estate - acquets, conquests ou propres - to anyone he thinks fit by inter vivos donation "pourvu que le donataire ne soit pas héritier immediate du donateur ou descendant de lui en droite ligne". At p 483 Berault refers to Article 433 of the Coutume Reformée which is in these terms:
"Et s'il y a plusieurs heritiers il leur peut donner à tous ensemble, mais ne pas avantager l'un plus que l'autre, comme il a esté dit cy-dessus."
In his commentary on this Article at p 491, Berault writes that the advantage referred to here is that of real estate (heritage) not movables, which one can give to one of one's heirs in preference to the other or others "puis qu'on le peut bien par testament, article 425. Que si une personne en fraude de la Coustume a vendu son heritage & en a donne les deniers à un de ses heritiers presomptifs, la vendition demeurera valable, mais le donataire sera tenu render lesdits deniers & les remettre en la masse de la succession". There are two points to take from this passage - one, that a gift to the heirs within the third may be acceptable and the other that where there is a fraud on the Coutume, the requirement for equality between the heirs ensures a full rapport à la masse.
17. The apparent contradiction is clarified by Article 434 of the Coutume. It is clear this applies to movables as well as real property of whatever kind, because the gift is treated as an advance on the succession (un advancement d'hoirie). The rationale for equality is set out by Berault at p 492:
"Cette prohibition d'avantage a esté faite pour oster d'entre les enfants tout mécontentemet, jalousie, & altercation, dautant que chacun s'estimant égal à ses freres portera plus à regret d'en voir un avantage aux autres..."
18. Pesnelle in his Coutume de Normandie (1771) refers to Article 424 of the Coutume: "Pere & mere par leur testament, ne peuvent donner de leurs meubles à l'un de leurs Enfans plus qu'à l'autre". The fact that this is not the case with third persons who are not heirs is confirmed by the following Article 425. When discussing Donations, the author says at p 551:
"Semblablement les enfans et les descendants en la ligne directe sont incapables de recevoir aucune donation de meubles ou d'immeubles de leurs ascendans, au prejudice les uns des autres; l'égalité devant être gardée entr'eux. C'est pourquoi toutes les donations faites aux descendans sont réputées avancements de succession; et par conséquent doivent être rapportées, suivant la Coutume , entre les donataires et les coheritiers ...."
19. There is material to like effect in the Oeuvres de Henri Basnage sur la Coutume de Normandie 3rd ed (1709).
20. It is clear from these extracts that gifts to the children as heirs had to be accounted for because they were treated as an advance on their succession to the estate. (No question of sitting on the advance seems to arise at this stage; but whether that was or was not part of the Ancienne Coutume or the Coutume Reformée, it is clear, as we shall see, that it is part of the law of Jersey). In my judgment, for the reasons set out at [67] below, the views of the Commentators are of less relevance on the point I have to resolve because the societal framework which the Coutume reflected bears no resemblance to the legislative and societal framework which applies in Jersey today.
21. Jean Poingdestre was Lieutenant Bailiff of Jersey between 1668 and 1676. At page 139 of his work, Les Loix et Coutumes de l'Isle de Jersey, he says this:
"Qui est un point de nostre Coustume (approuuee par nos Roys) si inuiolable et si estroictement obserue que les enfants rapportent en Partage tous les emoluments receus du pere ou de la mere. Or la portion legitime par nostre dite Coustume s'estend à tout ce qui viendroit a un enfant' ab intestato (hormis une certaine proportion, dont il leur est permins de disposer à autres, qui ne peuuent pretendre a la succession). Et que les dits enfants n'ont pas seullement une esperance en ceste portion la, mais aussy un droict de bien fondé, que quand le pere ou la mere I'auroit osté à l'un pour le donner a I'autre, ce'uy a qu'il auroit este osté -auroit son recours par la Loy, pour Ie recouurer; ce qu'il ne pourroit faire si c'estoit seullement un droict en l'air, et qui ne seroit soubstenu par Ia Loy. II est vrai que par le Droict Ciuil ladite Legitime n'est que viron le tiers de ce qui viendroit l'enfant ab intestat mais par nostre Coustume, c'est le Total; et par la, nous voyons que la liberté de tester, ou faire testament; est ostée aux Peres et aux Meres, au regard de leurs enfants: et qu'un Pere ne peut faire, aucun establissement en faueur de l'aisne et en diminution de la Légitime des autres, sans violer les Loix naturelles (par ce qu'elle est deue Jure naturae ut supra) et diuines (parce que Dieu fist la mesme Loy pour Ie peuple d'Israel) et encore plus Ies Loix humaines, et les Coustumes qui ont eu cours chez nous plusieurs Centaines d'annees." (emphasis added)
22. I also add that I have been referred to the work by Philippe Le Geyt, Lieutenant Bailiff of Jersey, Priviléges Loix et Coustumes de l'Ile de Jersey, which was first published in or about about 1698. Titre VI of this work deals with "des meubles et des partages qu'on en fait". The first six articles of that chapter really deal with the identification of what is or is not immovable. Article 7 makes plain that the widow has a right to one-third of movables if there is a living child of the deceased, whether from her or another marriage, paying one-third of the debts with the exception of funeral expenses and testamentary legacies: if there are no living children, then she has one-half of the movables. Perhaps importantly, at Article 12, Le Geyt confirms by implication that heirs can repudiate a succession. That is indeed an established principle of Jersey law - "nul n'est héritier qui ne vaut" - which is also mentioned by Basnage in his commentary on Article 434 of the Coutume Reformée and appears in the Code Civile at Article 775. It is referred to in Re Blampied Ex 925 June 27.
23. Le Geyt deals with rapport à la masse at Article 13 in this way:
"Si l'on a touché du meubles que par avancement de Succession, on doit alors rapporter tout ce qui est rapportable."
24. At Article 14, he confirms that gifts or advances made for education, learning a trade and so on, are not susceptible to being brought back into the estate. Interestingly, there is no mention of the right to sit on advances received.
25. In summary therefore, the customary law of Normandy required equality between the children of a deceased male and it was not open to a parent to confer an advantage on one child at the expense of the others.
26. Before coming to the two principal cases relevant to the narrow issue before me, I turn to the more recent decisions of this court that tackle avancement de succession. In De La Haye v Walton [2013] JRC 021, Sir Michael Birt, Bailiff, gave judgment in an action by the plaintiff seeking an order that the defendant should bring back into the estate the avance de succession that the defendant had received from her mother during the mother's lifetime. The judge said this:
"54. The law concerning avancement du succession and rapport à la masse is well established and is not in dispute between the parties. In short, an inter vivos gift by a parent to a child (excluding of course matters of parental obligation such as the provision of food, clothing, education, vocational training etc) is described as an 'avance de succession'. On the death of the parent the child may be compelled at the instance of the co-heirs to 'la rapporter à la masse' i.e. to bring the gift back into the gross of the estate. The aim of the principle is to prevent one heir benefitting to the prejudice of the others by means of inter vivos gifts that are made to him. As Le Gros, Traité du Droit Contumier [sic] states at page 70:-
"Le rapport a donc pour but d'établir l'égalité entre les héritiers venant à une même succession."
55. A child who has received a gift may elect to rest on his advance ('rester sur ses avances') and forego any claim to participate in the succession provided that the estate is solvent and he has not committed any 'act d'héritier' (Valpy v Janvrin [1716] 1 CR 66). Advances are brought back into the estate at their value as at the date of the gift (Amy v Amy [1968] JJ 981) and do not carry interest (Re Vincent [1869] Ex Juillet 5). The principle also applies to inter vivos gifts by a husband to a wife (Ottley v de Gruchy [1958] 251 Ex 256).
(The Court then referred to Channing v Harrison [1967] JJ 845 )....
59. In our judgment, where a deceased contributes all the money paid into a joint account in the name of the deceased and an heir by way of gift, there is a form of contingent or potential avance. There will be an actual avance to the extent that money is paid out of the joint account to or for the benefit of the heir during the life of the deceased or accrues to the heir by survivorship on the death of the deceased."
27. I note that the Court was not referred to the case of Le Cornu v Falle which is central to the present argument. However, the principles expounded in de la Haye were applied by Master Thompson in Goed and Another v Begg and Another [2020] JRC 245 A
28. I turn next to the central two cases which are of relevance to the argument here. The first is Valpy dit Janvrin. The parties put before me an extract from the cause remise of the Royal Court of 27 April 1716 before Lieutenant Bailiff Josué Pipon, sitting with a number of Jurats. The Act of Court is extremely difficult to read and in my judgment it is sufficient to refer to the Act of the Court on 22 November 1718 which reflects the result of the appeal to the Privy Council against the Royal Court's order in 1716. The 1718 Act can be found at Ex 86 p 184 or in the Ordres du Conseil vol 2 1678-1724 at p 436 and the headnote sets out the following:
"Action du défendeur, principal héritier à une succession vers les co-héritiers pour rapporter à la masse de ladite succession les avances que ceux-ci auraient reҫues. Jugement d'après lequel les acteurs sont déchargés de ladite action, et reҫus à leurs declaration de se contenter desdits avances pour tout partage mobilier. Appel du défendeur réjetté."
The Order in Council then follows but adds little to the factual detail of the case. It is nonetheless apparent that the defendant was entitled to sit on the advances received and there is no restriction there to suggest that the advance must fall within the disposal third.
29. The other relevant case is Le Cornu v Falle [1917] 299 Ex 533. The parties in that case were the executrix, Albina Falle, who was also the sole legatee under the Will of her late mother, Mary Elizabeth Falle; and her brother, Sir Bertram Godfray Falle, actioned to bring back into the estate gifts which he had received from his mother. The plaintiff was Mr Alfred John Le Cornu, husband of Rozel Falle, the sister of the defendants. Bringing the action in her name (whether his wife approved or not) for cancellation of the Will of the deceased as having been made to her prejudice, the plaintiff asserted a breach of the légitime, and "other causes and circumstances" requested that the Greffier be appointed arbitre to establish the succession with all the heirs required to "rapporter à la masse les avances qui'ils ont reçu".
30. Albina entered a pleading that the plaintiff was procedurally incorrect in bringing the action. Procedural objections were even more common then than they are today. However, it is to be noted that she had proved the will and there is at least the possibility that she recognised that any defences to the claim would be hopeless as far as she was concerned either because she could not both approve the will and not pursue her obligations under it as executrix (including an obligation to require her brother to bring back his gifts into the estate), or because the légitime gave the plaintiff an unambiguous claim to a share of two-thirds of the estate.
31. Through his attorney, Sir Bertram Falle declared that he would rest on the avance de succession which he had received from his late mother. He relied on Valpy dit Janvrin and contended that the plaintiff's assertion that the donee could only rest on the advance received where the advance was equal to or less than the légitime of one-third was wrong in law. Accordingly, he contended it was only his sister, the executrix, who should be taken before the Greffier arbitre, because she was not sitting on the advances received.
32. Having recited the pleadings, which make it plain that the question which I have to decide in this case was at the heart of the argument in that case, the Act of Court concludes as follows:
"La Cour prit son temps pour considérer son Jugement.
Et Aujourd'hui le 14 juillet 1917, considérant que par la coutume de cette Ile il est loisible à tout Cohéritier à succession mobilière de n'y point prendre part et s'il y a lieu d'opter de s'en tenir aux avances que le défunt lui aurait fait de son vivant ;
La Cour a reçu ledit Messire Bertram Godfray Falle, à sa déclaration de s'arrêter sur ses avances pour toute part de la succession mobilière de sa dite défunte mère.
Ensuite de quoi le dit testament est réduit à la quotité disponible, et sont les parties envoyées devant le Greffier établir les forces de ladite succession et en effectuer le règlement selon droit.
De laquelle sentence ledit Monsieur George Fredrick Durell Le Gallais, un des Procureurs dudit Messire Bertram Godfray Falle, Baronet, a été reçu à appeler en fin de cause devant un plus grand nombre."
In translation:
"The Court took time to consider its judgment.
And today the 14th July 1917, considering that by the custom of this island it is permissible to every co-heir to a mobiliary succession to take no part of it and, if there is reason so to do, to opt to sit on the advances which the deceased had made to him during his lifetime;
The Court received the said Sir Bertram Godfray Falle's declaration that he rested on the advances for every part of the mobiliary succession of his late mother.
After this, the said Will was reduced to the disposable portion and the parties were sent before the Greffier to establish the force of the succession and to effect its regulation according to law.
Of which sentence the said George Frederick Durrell Le Gallais, one of the attorneys of the said Sir Bertram Godfray Falle, Baronet, was received to appeal the conclusion of the case before a greater number."
33. In the Jersey Law of Property (1991) by Matthews and Nicolle, at [8.39], the authors conclude that the plaintiff was successful. They say:
"At customary law, an heir...could, after the death of the cujus, be called upon by the co-heirs to bring the avancement back into the estate (at its value when the gift was made: Amy v Amy [1969] 1 JJ 981) before it was divided. This is called "rapport à la masse". So far as concerns moveables, it could be avoided by an heir who renounced his right to participate in the succession (Valpy dit Janvrin v Valpy dit Janvin [1716] 1 CR 66; [1718] 86 Ex 184) provided that the "avance" does not exceed the "partie disponible" (Le Cornu v Falle [1917] 229 Ex 533)."
Unfortunately, no detailed explanation of why the authors reached that conclusion is set out.
34. At [8.40], the authors note that the doctrine of rapport à la masse has ceased to operate in immovable successions, but it still continues to be relevant in movable successions where the issue of the decujus have a right to a légitime. The authors then add:
"Although it is subject to the qualification that, if it appears that the avancement should be regarded as made out of the partie disponible, the recipient is entitled to retain it: Gavey v Gavey [1731] 1 OC 176. See further Le Gros, Du Droit Coutumier, page 58."
[The decision, given on 6 December 1750, is easier to find at Vol 3 Ordres du Conseil 1725 - 1771 p 318]
35. The Gavey case is of marginal interest. There were two references to His Majesty in Council, one in relation to the real estate and one in relation to the movable estate of the late Edward Gavey, who, his elder son having predeceased him, left a grandson Aaron, who came to the succession representing his deceased father, and a son John. The facts in relation to the movable estate were that the deceased had made a marriage contract with one Martin Gruchy by which the two parents respectively committed their son (John) and daughter to marriage and both conferred on their children substantial gifts, the deceased declaring that these gifts were made out of the disposable third of his estate; and when he died, his estate devolved upon Aaron and John in equal shares. They began to share out the estate fairly, but Aaron then began proceedings seeking rapport à la masse in respect of the gifts made to John by the deceased under the marriage contract. John's defence was that Aaron was too late to bring such a claim but that was overruled by the Royal Court, which also determined that both Aaron and John should bring back into the estate all the gifts the children had received from the deceased. On appeal, the Privy Council ordered that John did not have to bring back into the estate the gifts received under the marriage contract, and placed a time bar on the extent to which Aaron had to bring back gifts made to his late father by the deceased, his grandfather. Whether this conclusion was reached because the parties had already commenced a division of the estate à l'amiable and John's procedural objection was upheld, or whether it was founded on the fact that the gifts under the marriage contract were said to be made out of the disposable third is unclear. However, even on the assumption that the latter is the basis for the decision, the case is authority only for saying that an avance de succession which is expressed to be made from the disposable third does not fall to be brought back, and the donee can still participate in the estate notwithstanding the gift; but it is not authority for saying that an heir cannot sit on an avance which exceeds the disposable third and refuse to bring it back into the estate, taking no interest in the estate as a result.
36. Thus, I respectfully agree with the reference to Gavey by the learned authors in [8.40] but it does not take us very far in considering the issue in this case; perhaps other than to illustrate that the historical rationale under the Coutûmes namely that equality between the children was to be achieved, seems to have played no part in the decision.
37. I have also been referred to the Jersey Law course study guide on testate and intestate succession published by Professor Meryl Thomas. The author takes the same view in relation to Le Cornu v Falle, because she says at paragraph [9.23]:
"Where the testator gives moveable property inter vivos to his children or his grandchildren, or pays off their debts with the result that some children have more than others (and that additional amount does not form part of the partie disponible) the property in question might be returned to the estate as being an avancement de succession."
38. The footnote is a reference to Basnage and his Commentaires sur la Coutume de Normandie, de Donations at page 237. However, the relevant passage in Basnage there referred to is in these terms:
"Puisque l'on ne peut faire avantage à l'un de ses heritiers plus qu'à l'autre, & que toutes donations sont réputées advancement d'hoirie, il s'ensuit que les choses données doivent necessairement être rapportées, soit que l'on vienne à la succession, ou que l'on se tienne à son don."
This does not in my judgment support the conclusion which Professor Thomas reaches because it does not directly touch on the qualifying words in parenthesis in the Study Notes "(and that the additional amount does not form part of the partie disponible)." Furthermore, if the donation must be brought back ("doivent necessairement être rapportées) whether the donee heir comes to the succession or sticks on his advance, it would seem that it is less likely that the qualification is correct.
39. At paragraph [21.18] and following, Professor Thomas discusses Le Cornu v Falle in these terms:
"Where an estate is solvent it is not obligatory for the heirs to bring a rapport à la masse. Where a rapport is made the donee (i.e., a wife or child(ren)) may instead keep the advancement and renounce his or her right to participate in the succession (rester sur ces avances) Valpy dit Janvrin v Valpy dit Janvrin.
Therefore if the co-heirs have brought an action of rapport à la masse the person who received those gifts has the choice of either;
(i) rapporter à la masse, i.e., he may bring the advances he has received into the v estate and share in the movable estate; or
(ii) rester sur ses avances. If the estate is solvent and the heir is satisfied with what is already received in the deceased's lifetime, he may rest on his advances and cannot claim any part of the movable estate (including any share which he would otherwise have received through the operation of légitime - Amy v Amy). By choosing to rest on his advances, he elects not to participate in the succession. See Le Cornu v Falle, where it was stated that the heir can only rester where the advance does not exceed the partie disponible.
The heirs have a right to rester sur ses avances in relation to the moveable estate without any prejudice to their right to claim the immovable succession - Valpy dit Janvrin v Valpy dit Janvrin
...
21.20 It appears that the heir can nevertheless, and without bringing the avances back into the estate, participate in the division of the moveable estate if the gift he receives was expressly made from the donor's disposable portion of his estate, i.e., the donor expressly states that the advances made out of the disposable third. In such a case the heir can keep the gift and participate in the distribution of the rest of the moveable estate.
21.21 In Gavey v Gavey the deceased grandfather left some movables by will and the Royal Court held that his grandchild (petitioner) had to bring back into the estate gifts made to him 'en marriage' by the deceased during his lifetime. An appeal from this judgment was made to His Majesty in Council, which overturned the Royal Court's decision because the deceased had declared that the advances should be deemed to come out of the disposable third of his estate and the petitioner should not be accountable for anything received which did not exceed the disposable third."
40. For the reason I have given at [35] above, I think it remains slightly unclear whether this is a correct summary of Gavey, although it is of course a correct statement of the outcome.
41. Once again, I note that there is an absence of any rationale or analysis as to the effect of the rules which are set out. This is perhaps unsurprising in the sense that, with the exception of those cases after 1951, the relevant material is itself short on any analysis as to the effects and potential consequences of the rules which appear to be adumbrated, even if one can establish what those rules are.
42. The closest one comes on the authorities to any rationale appears to be in Le Gros (Traité du Droit Coutumier), where at page 70, the author says this:
"6º Il paraît superflu de faire remarquer que la jurisprudence qui a admis le droit d'un enfant de s'arrêter sur les donations qu'il a reçues blesse l'égalité qui doit régner entre les enfants dans le partage du bien de leur parent. Nous devons conclure que cette jurisprudence se justifie par les variations continuelles de la fortune du parent ou du désir du père d'aider son enfant dans ses entreprises. Mais elle oblige avec raison l'enfant qui veut prendre part au partage de la succession de rapporter à la masse le bien qui lui a été donné, ou moins prendre."
43. I translate this as follows:
"It seems superfluous to remark that the jurisprudence which allows the right of a child to rest on the gifts he has received wounds the equality which must govern between the children in the division of the property of their parent. We must conclude that this jurisprudence is justified by the continuing variations in the fortune of the parent or by the desire of the parent to help his child in his businesses. But it does rightly oblige the child who wishes to take part in the division of the succession to bring back into the estate the property given to him, or take less."
44. The assumption seemingly here made by Le Gros is that the amount of the gift will always be less than the heir's entitlement at law, but one needs to consider his comment against the overall principle - thus a rule which allows an heir to sit on his advance whether or not made out of the disposable third will create inequality between the heirs one way or another, whether the amount of the advance is more or less than the amount he is entitled to at law - equality is only achieved where he brings the gift back into hotchpot and shares in the estate and thus equality between the heirs would be achieved. It is also noteworthy that despite a lengthy recitation of the pleadings in Le Cornu v Falle, Le Gros does not qualify his comments by reference to the ability to rest on the gift received only arising where the gift fell in the disposable third.
45. The present case requires me to consider these not entirely consistent sources of law. In that connection, I note in particular the report of the Royal Commission appointed to enquire into the civil laws of the island in 1861 where at pages (vii) to (viii), the Commissioners set out their understanding of the sources of the law of Jersey. They conclude:
"We have thus indicated the regular sources of the law of Jersey. But we think it right to add, that an extraordinary degree of uncertainty prevails as to what is or is not law; and that many practices and rules of law exist of which no traces can be discovered in the old coutume, and which cannot be referred even in a slight degree to any of the sources above enumerated."
46. I have sympathy with the views of the Commissioners there expressed.
47. The légitime rules are part of our customary law. They remain in place unless and until the States repeal them. In fact, the legislature has had two opportunities to consider the repeal of the rules around légitime in the last thirty years. With the passage of the 1993 Law, the States not only did not abolish the légitime, but in fact extended its remit by providing that in addition to the one-third required to be bequeathed to the wife, she was entitled to the household effects; and indeed by creating a similar right for the widower, who previously had no rights against his late wife's moveable estate if she had children. A further opportunity to repeal the law of légitime was provided by the Wills and Successions (Amendment) (Jersey) Law 2010. The main purpose of that law was to extend the rights to légitime to children born out of wedlock - centuries ago such children would have had no right to receive from their natural fathers, whether by inter vivos gift or by inheritance, any patrimony at all, other than directly for their maintenance and upkeep; and the development of the present law came in two stages, first by removing the bar on receipt of such patrimony, and secondly, in 2010 in relation to movable property, by creating for such children the same rights as have children born in wedlock. That it is clear the States were aware of the possibilities is revealed by paragraphs 10 to 15 of the Report accompanying the proposition for the amendment of that legislation. Having referred to various international papers on the subject, the Report says this:
"10. The committee later lodged a proposition entitled 'Succession Rights for Children Born Out of Wedlock' setting out proposals to put non-marital children on the same footing as marital children in terms of succession rights, and also to replace légitime with a new law under which proceedings in the Royal Court could be instituted by Order of Justice to determine claims on an estate (similarly to the position in England and Wales under the 1975 Act).
11. The proposals were adopted in principle by the States on 11th November 2003 and extensive work was done by the law draftsman in conjunction with the Law Officers' Department to draft a new law to confer the necessary powers on the Royal Court to adjudicate on such claims.
12. It fell to the Legislation Advisory Panel to review the resulting draft legislation; and to consider the practical aspects of seeking to abolish légitime and replace it with a system involving Royal Court litigation. In this regard the Panel had the benefit not only of advice from the previous Attorney General, but of views expressed by the Royal Court itself as to how such legislation, if enacted, might work in practice. The Panel is indebted to the former Attorney General and to the Court.
13. Having weighed the advice and opinions furnished to it, the Panel (for reasons elaborated on below) recommended to the Chief Minister that he proceed without further delay to lodge a projet de loi to put non-marital children on the same footing as marital children in relation to succession rights. And that he do this without - for the moment at least - seeking to replace the automatic right of légitime with a system that would entail litigation in the Royal Court to determine claims on an estate.
...."
48. This being so, the existence of the légitime is a fixed point in the approach I must take to what is before me today.
49. I will turn shortly to the case of Valpy dit Janvrin but it is right to note immediately that there appear to be differences in this area between the customary law of Jersey and the customary law of Normandy. An immediate and obvious difference lies in the right of dower - under Jersey customary law, a widow can claim her right of dower over one-third of the real property owned by her late husband at the date of his death or the Norman customary dower. The Norman customary dower allowed her to claim dower over one-third of the real property owned by her husband at the date of the marriage, plus any property which he had inherited or was due to inherit in direct line (I note that the right to claim Norman customary dower in Jersey was abolished by Article 46 of the Bankruptcy (Désastre) (Jersey) Law 1990). Similarly, my attention has not been drawn to any passages from the commentators on the Ancienne Coutume, nor on the Coutume Reformée, which clearly suggest that the donee heir has any absolute right to sit on the advances received, and not bring them back into the estate, conditional upon that donee disclaiming any rights to the succession. To the contrary, the rationale that there should be equality between the children suggests otherwise.
50. I make these rather discursive comments for two reasons. The first is that one needs always, when looking at the older cases on the custom, to have in mind the circumstances which applied when those decisions were made; and secondly, because one of the principal arguments of the Plaintiff in this case is that to decide the point of law otherwise than in his favour would amount to driving a coach and horses through the restrictions on the right of Jersey domiciliary to leave personal property by Will. In essence, the légitime would be an avoidable obligation. In that context, I note and accept the submission made by Advocate Steenson that in practice the légitime is already largely avoidable, simply by investment in real property in Jersey (or doubtless elsewhere) where the légitime rules do not apply.
51. Nonetheless, the fact remains that the restrictions on the right of a Jersey domiciliary to leave personal property by Will still exist and the States have endorsed those restrictions in Article 7 of the 1993 Law. I said earlier that I do not regard the 1993 Law as creating a brand new framework for regulating wills and successions and that the custom remains save to the extent that it is either repealed or amended by the 1993 Law. In my judgment, the following customary law rules clearly continue to apply:
(i) An heir is entitled to call for a bénefice d'inventaire before taking any obligations under the succession; and is entitled to repudiate any claim to the succession.
(ii) Donees wishing to share in the succession, whether on intestacy or under the will of the deceased - and potentially others in the event of a bankruptcy - can be required to bring back their gifts into hotchpotch.
(iii) The rule in Valpy dit Janvrin v Valpy dit Janvrin (1716) 1 CR 66, (1718) Ex 86 enabling a donee to take no part of the estate and sit on the advances received still applies.
(iv) A person who commits an acte d'héritier is prevented from challenging the succession on the grounds that one cannot both approve and reject the same thing - or as the Latin maxim has it, approbo non reprobo.
52. All the commentaries have reflected the need to have equality amongst the children as heirs. The cases have also mostly involved division between children rather than division between child and surviving parent. However, the real issue here is whether the légitime can be affected or defeated by a donee sitting on the advances received during the lifetime of the deceased, and on that basis I cannot see any reason in principle why I should not apply the conclusion I reach on that point equally where the donee is the spouse as where the donee is a child of the deceased, which was indeed the decision in Ottley v de Gruchy (supra).
53. I also add that, while I have not been addressed on it, there is in my judgment at least a possibility that, in some circumstances, a claim that arrangements should be struck down as a fraud on the légitime can be sustained. Regrettably, there is little authority in Jersey directly on that point, but there is perhaps a nod given to the possibility in Article 9(3) of the Trusts (Jersey) Law 1984, as amended. It would take a case to be argued out to determine the extent to which, if at all, such a doctrine might apply.
54. The customary law of Jersey, as with the customary law to be found in the Ancienne Coutume de Normandie and in the Coutume Reformée contains a principle that an heir who receives a gift during the lifetime of a person against whose estate he has the right to make a claim is subject to a claim from his co-heirs that he bring that gift back into the estate following the death.
55. The customary law of Jersey, unlike the Ancienne Coutume or the Coutume Reformée, recognises the right of the donee in such circumstances to rest on the advance which he has received during the lifetime of the deceased and not bring that gift back into the estate - see Valpy dit Janvrin. That decision was originally that of the Superior Number of the Royal Court, and was upheld by the Privy Council. Unfortunately, as was the custom in those days, the judgments which were delivered do not contain much by way of rationale or analysis. On the face of it, the Valpy dit Janvrin doctrine does enable a person under the law of Jersey to favour one child - or a spouse - over the other claimants to his estate by making an inter vivos gift. That would seem to be contrary to the law of légitime. However, contrary or not, and subject to the discussion below, that represents the law. It may well be that the Valpy dit Janvrin principle needs to be set alongside the principles which require a donation à cause de mort, an action for which as I understand it had to be brought within a year and a day of the date of death, to be treated as a testamentary gift; and that Valpy dit Janvrin was also to be set alongside the principle discussed in some of the older commentaries that where there was a fraud on the légitime, the arrangements giving rise to such a fraud would be set aside. That would certainly be consistent with the rights which creditors of the deceased would have to ensure in the case of an insolvent estate that they had the ability to claw back from the donee of the deceased the amount of the gift in order to make the estate solvent and to have their debts paid, and consistent with Article 4(2) of the Bankruptcy (Désastre) (Jersey) Law 1990 which does not permit a declaration to be made in respect of the estate of a deceased person. Unfortunately, the reports do not disclose whether the amount of the advance in the Valpy dit Janvrin case was more or less than the partie disponible.
56. Leaving aside these possibilities, the question for me now is whether there is an additional qualification on the Valpy dit Janvrin principle that the heir is not permitted to rest on the advance received if that advance is in excess of the partie disponible. If that were the custom, I would be bound to apply it now, and accordingly I turn to the Le Cornu case.
57. It is clear there was some personal hostility between Sir Bertram and Mr Le Cornu because the plaintiff replied that Sir Bertram's promise to deliver Rozel's share only if there was a séparation quant aux biens was considered by the plaintiff to be an insult to him, intended to expose him to public opprobrium.
58. Sometimes with the older cases, one sees not only the pleadings being recited but then the Court summarising the principles which governed its decision. In this case, the summary is not clear. Its full text is set out at [32] above.
59. Advocate Morley-Kirk and Advocate Steenson both claimed that this case supported their respective clients' positions. Indeed, it can be read in both ways. In support of Advocate Steenson's argument, it would seem that the Court recognised the right of an heir to sit on the advances received and received Sir Bertram's declaration to that effect. The next paragraph, starting as it does with 'en suite de quoi' would suggest that there has been no qualification to the receipt of the declaration. The Court ordered the will to be reduced ad legitimum modum, and of course it was necessary for all parties to be sent before the Greffier because, if there were no express order to the contrary, Sir Bertram might be able to sit on the advances received and claim his just part of the succession.
60. On the other hand, Sir Bertram clearly thought that he had lost the case or he would not have applied for and seemingly been given leave to appeal. Advocate Morley-Kirk submits that because this was contained in the record, it follows that there must have been some basis upon which he lost the case, and the only identifiable basis is the pleading by the plaintiff that it was only possible to rest on the advances received if the quantum of those advances fell within the partie disponible.
61. I consider the effect of Le Cornu v Falle to be uncertain. It was decided at a time when the Bailiff was not the sole judge of law and the case is consequently a less reliable identifier of what the custom was, even though that renowned Jersey lawyer, Sir William Venables Vernon, was presiding over the Court. Perhaps the then Bailiff was aware that the Greffier would be familiar with the rules which applied. There is no record in the Table des Décisions of any appeal having taken place and we can only assume that it did not. Secondly, the fact is that there is no reasoned decision, but merely a result, which, given that the Jersey custom of permitting an heir to rest on the advances received does not seem to reflect the Norman custom anyway, is probably unsurprising. Given that this is the only case provided to me which can possibly have the outcome for which Advocate Morley-Kirk contends; that the rationale for the plaintiff's argument in that case was in any event inconsistent with the Norman texts on which this Plaintiff relies because that rationale was based on equality between the children, not equality other than the disposable third; and given that the basis for the decision could well indeed have been something quite different, I reach the conclusion that Le Cornu v Falle is not sufficiently clear that I should adopt it as showing unambiguously what the customary law of Jersey was (and is).
62. I have therefore considered the rationale for the proposition put forward by Advocate Morley-Kirk. In the course of argument, I put to her some hypothetical circumstances, taking the structure of the heirs as was the position in Le Cornu v Falle, that the value of the estate at the date of death was £60 and the value of the gift to Sir Bertram was £30. But does the true value of the estate include the gift? If one set the value of the gift against the value of the donor's estate if the gift is brought back into account, it represents the partie disponible (£60 plus £30 divided by three equals £30). If on the other hand, one assesses the value of the gift against the value of the donor's estate at the date of death without bringing the value of the gift back into account, the value of the gift is in excess of the partie disponible because it represents one-half of the value of the estate. The natural question to arise is which of the two approaches would be correct.
63. There is a second question which is whether for the purposes of the comparison of the gift with the value of the estate one would assess the value of the gift at the date of the gift or at the date of death. If one considers the doctrine of légitime against the overall objective (for whatever historical or presently relevant reasons) of allowing a Jersey domiciliary a right to dispose only of one-third of his estate, it might be thought that logically one combines the value of the gift with the value of the estate at the date of death because it is the total patrimony which is to be divided against the heirs. On the face of it, the value of the gift is to be assessed at the date of the gift as Amy v Amy dictates is the case - and indeed in the days when interest was regarded as either as usurious or, at any rate, as unusual and when inflation was not the burden which the last fifty years or so have shown it is capable of being, the advancement of a portion of the estate some time before death would not have the same consequences, at least potentially, as it does today. To value the gift at the date of the gift disregards that the donee has the benefit of that gift during the rest of the donor's lifetime and disregards the changing value of money with inflation and in many cases will have the consequence that the donee, receiving the benefit of the patrimony in advance, has a longer period in which to make that work to his or her advantage; but conversely to value the gift uprated, as it were, at the date of death makes assumptions as to the success of the donee in handling it which may turn out to be quite incorrect and unfair. The problems of a donee who could not repay the gift would be greatly increased and it might lead to bankruptcy, which would be a strange outcome for what was intended beneficence.
64. It is also to be noted that there is an established rule of Jersey law that no one can be made to be an heir against his will. To hold that a donee is required to bring back the value of a gift into the estate because it exceeds the partie disponible could not only be in some circumstances a rule which leads to an unnecessary bankruptcy if the donee no longer has the assets in question, but also, even if he does, it would be a rule which is counter intuitive to the rule that 'nul n'est héritier qui ne veut' - see Code Civil Article 775, Basnage, Sur La Coutume Reformée Article 434 and Re Blampied Ex 925 June 27.
65. One could also look at the problem through the lens of the Jersey domiciled donor who wants to do the right thing by the légitime, and is faced with an heir's need of cash before the donor was ready to move on to the next world. By assessing the value of the gift against the value of the donor's estate at the date of death, the donor is denied the ability to balance the heir's need of cash at the time of the gift against his or her presumptive inheritance because the donor will have no idea what fluctuations in his estate are likely between the date of the gift and the date of death. Of course, these fluctuations will not matter if the donor's finances improve, but it would destroy the basis of the gift if he were to be worse off. On the other hand, to compare the value of the gift at the date of the gift with the value of the estate of the donor at that date would invite very difficult and often impossible fact sensitive investigations long after the event.
66. The fact is that there is more than one answer to all the questions which I have mentioned, none of which is particularly consistent with the original rationale for the légitime which was to keep the patrimony within the family and share the estate equally amongst the heirs - and in those early days, not even among all the heirs because, other than the possibility of a marriage contract, the married daughters had a lesser entitlement than their brothers because their fortunes were bound up with the fortunes of the family into which she was marrying. Over the centuries, there has progressively been an incursion into the original rationale - the ability to recover inherited property after the death of the family member who alienated it has gone with the passage of the Loi (1926) sur les héritages propres; the ability to leave real estate by will, even inherited property in direct line, has been conferred by the Loi (1851) sur les testaments d'immeubles; the husband now has a right to a légitime under the 1993 Law in circumstances where that would never have been contemplated previously because it could not seen to be a wife's obligation to support her husband - indeed even on divorce, the right of a husband to seek maintenance pending suit was only conferred by the Matrimonial Causes (Amendment no 5)(Jersey) Law 1985.
67. Most of all, the societal changes which have led to the concept of assets shared between husband and wife (or between civil partners) show that today, despite the 1993 Law, it is almost incongruous to think that the child's claim can be preferred to the arrangements made between spouses or civil partners. In the 21st century, family finances generally no longer depend on the contributions of one party alone. There is a team effort between spouses and civil partners which is recognised by the courts in dealing with disputes over property between them in the event of a breakdown in their relationship. Furthermore, the widespread use of joint accounts and jointly held property - never a feature when the customary law principles were developed - demonstrate that a decision in favour of the plaintiff could have the most extensive consequences for a very large number of families, whatever the value of the estate, to the enormous detriment of the surviving spouse or civil partner, upsetting all the calculations which spouses and civil partners make together as to the adequacy of the financial arrangements for the support of the survivor and any dependent children for whom the survivor is responsible. I do not for one moment think that most of those families using joint accounts set their financial arrangements in that way because they have concerns about the légitime.
68. When I said earlier in this judgment that there was no analysis or rationale for the Le Cornu v Falle decision, I did so not only because the decision itself is far from clear but also because it is difficult to see, if Advocate Morley-Kirk is correct in her submission as to what its conclusion was, what the rationale for it actually was, given the changes in the legal framework around the holding of property and in the law of succession. In my judgment, the conclusion of Le Gros referred to at [42] above is the closest one can come to a sensible outcome - the donee can rest on the advance received but the condition is that he or she abandons any claim on the estate. It is the neatest and tidiest solution. By contrast, the decision in Valpy dit Janvrin does make common sense - it permits a donee to treat monies or other gifts received whether from an ancestor in direct line or not, as a complete transaction surrounded by certainty for as long as no claims are made by the donee against the estate. The problems of calculating whether a recall is to be made or not, and if it is, at what value, and of potential bankruptcy if the gifts have been spent, all evaporate.
69. If I were sure that the law and custom were firmly established by Le Cornu v Falle as Advocate Morley-Kirk contends, I would have to decide the point of law in favour of the Plaintiff. However, I am not convinced that it is. The légitime remains firmly part of our law and its removal, if that should be the desired outcome, is a matter which can only be dealt with by a decision of the legislature; but I do not consider that the state of the law is such that I should determine an uncertain custom in such a way as to affect adversely the everyday living of the 21st century if not compelled to do so. Neither do I consider that the present decision drives a coach and horses through the légitime. The rules which are found in the 1993 Law continue to apply in relation to what is in the estate of a deceased person and the causes of action mentioned in [72] below, the principles involved in setting aside donations à cause de mort and the natural caution of both men and women in giving away their property inter vivos, even in the use of joint accounts, will serve as a practical brake on arrangements which are designed to defeat the legitimate claims of their heirs.
70. For these reasons, I hold that the principle of Valpy dit Janvrin, namely that a donee can rest on the advances he or she has received from the deceased during his or her lifetime, repudiating any claim to the estate of the deceased, is not restricted by the fact that the advances received may exceed the tiers disponible, whether that is calculated by bringing the gift back into account or by taking the value of the estate at the date of death without the value of the gift.
71. On this point of law, I therefore find for the Defendant.
72. In reaching this conclusion, I wish to make it plain that I do not intend by this judgment to decide any questions concerning the merits of an action for setting aside a gift, or of claims based on the obligations of the Defendant as having proved the Will through her attorney, or an action against a donee on the basis that the gift amounts to a fraud on the légitime or breached the rule that donner et retenir ne vaut. On all of these potential points, I have received no significant submissions as they were not within the remit of the preliminary issue.
Authorities
Royal Court Rules 2002, as amended.
Valpy dit Janvrin v Valpy dit Janvrin (1716) 1 CR 66, (1718) Ex 86
Le Cornu v Falle [1917] 299 Ex 533.
Wills and Successions (Jersey) Law 1993.
Loi (1878) sur la séparation des biens.
Loi (1925) étendant les droits de la femme mariée.
La Coustume Reformée du Pays et Duché de Normandie 6th ed.
Re Blampied Ex 925 June 27.
De La Haye v Walton [2013] JRC 021.
Goed and Another v Begg and Another [2020] JRC 245A.
Ordres du Conseil vol 2 1678-1724.
Le Cornu v Falle [1917] 299 Ex 533.
Jersey Law of Property (1991) by Matthews and Nicolle.
Wills and Successions (Amendment) (Jersey) Law 2010.
Bankruptcy (Désastre) (Jersey) Law 1990.
Trusts (Jersey) Law 1984.
Loi (1926) sur les héritages propres.
Loi (1851) sur les testaments d'immeubles.
Matrimonial Causes (Amendment no 5)(Jersey) Law 1985