Jersey Unreported Judgments

Estate.

[2023]JRC187

Royal Court

(Samedi)

19 October 2023

Advocate I. C. Jones for the Representor

The Respondent in person.

judgment

the deputy bailiff:

1.        The Representor and Respondent are brothers.  The Respondent was executor of the Will of moveable estate dated 2 June 2016 ("the Will") of his mother, Hazel Lakeman ("the Testatrix") who died aged 93 domiciled in Jersey on 15 May 2022.

2.        The Respondent was granted probate of the Will on 27 October 2022. 

3.        Article 17 of the Probate (Jersey) Law 1998 provides:

"17. Removal of executor or administrator

(1) The Attorney General or any person with an interest in the movable estate of a deceased person may apply to the Inferior Number on exceptional grounds for an order that an executor or administrator be removed from office.

(2) If the Inferior Number makes an order removing an executor or administrator from office, it shall at the same time name another person to be executor or administrator in their place, and authorize the Judicial Greffier to make a grant to that person."

4.        By his Representation, the Representor sought the removal of the Respondent as executor of his late mother's Will.  We were told when we heard the Representation that there was no previous Jersey authority dealing with the circumstances in which, on a contested application, an executor had been removed.  At the end of the hearing on 25 September 2023 we removed the Respondent as executor with immediate effect.  We now give our reasons for so doing and explain why it was that we found exceptional grounds, as required by Article 17(1), for making such an order.

5.        In the course of the hearing before us, the Respondent said that he was part of a dysfunctional family.  It is clear that various relationships amongst members of the family, including as between the Representor and the Respondent, have irretrievably broken down.  When summarising the circumstances of this application and the reason for our decision, we do not want to exacerbate the difficult state of affairs that currently prevails amongst members of the family.

6.        Further, the Representor has issued separate proceedings by way of Order of Justice against the Respondent in which he makes allegations in relation to avances de succession which the Respondent may have received during the lifetime of the Testatrix.  We say nothing about those proceedings.

7.        The Representation was supported by an affidavit sworn by the Representor, some of which was unchallenged in terms of its contents.  Counsel for the Representor said that there were three reasons why the Court should in the exercise of its discretion remove the Respondent as executor.  Those were:

(i)        The capability of the Respondent to deal with the estate - it being said that he had demonstrated that he was not equipped to deal with the matter;

(ii)       The Respondent's own health and welfare which, it was said, gave rise to concern.

(iii)      The Respondent's lack of independence owing to his animus to the Representor and other members of the family, which sat at odds with the duties he owed to the family qua executor; and

We will return to these matters in due course.

8.        The affidavit filed by the Representor, originally approved but unsworn, was disclosed to the Respondent when the proceedings began in April 2023.  Nonetheless, when the Representation fell to be heard, the Respondent said that he had not had time to respond to its contents.  Pursuant to the Will, the principal beneficiaries are the Representor as to 2/6ths, the Respondent as to 3/6ths and the Representor's three children and the Respondent's one son (with whom he has no contact) as to the remaining sixth.  There are other provisions of the Will of less relevance and it is not necessary to set it out in its entirety.

9.        We note that the Testatrix also made a will of her immovable estate with which we are not concerned.  The sole beneficiary of that will (which we have not seen) is the Respondent.  The principal, and probably the only assets, that are devised to the Respondent under that will are the home that the Testatrix occupied as her principal residence until shortly before her death (and which is now occupied by the Respondent) and a commercial property in St Helier.

10.      The Representor says that since his mother's death there has been no meaningful engagement on the part of the Respondent as executor with the five other beneficiaries of the moveable estate.  Indeed, the Respondent agreed in the course of the hearing that he had declined to respond to correspondence or requests of assistance from the Representor, whom he plainly views with suspicion.  The Respondent also failed to provide the beneficiaries with a copy of the Will, which the Representor was forced to obtain through the Probate Registry.

11.      On any view, the Respondent has failed to provide the Representor, notwithstanding requests, with any information in relation to the administration of the estate and only did so, as we will particularise hereunder, towards the end of these proceedings. 

12.      The Representor is concerned about the delays, which can only be described as extreme, in the Representor's administration of the estate of his late father, Bernard Lakeman, who died on 20 July 2010.

13.      Probate of that Will was granted to the Respondent on 13 October 2010 and on 10 August 2011 the Respondent wrote to the Representor asking for his bank details and saying that he would be distributing their father's estate in September 2011.  These details were provided.  Various correspondence took place over the years and it was not until 23 April 2018 that the Testatrix's Advocate sent the Representor a distribution.  The payment was not accompanied by any explanation as to how it was calculated or supported by an inventory or estate accounts.  The fact that it took the Respondent eight years to administer his father's estate - and we note it was not the Respondent who completed the administration of his father's estate - without any explanation as to the reason for this delay is a matter for concern and the Representor is in our view legitimately troubled that history may repeat itself in relation to the estate of his mother.

14.      So far as the Representor is concerned, the Testatrix's moveable estate is not a complex one.  There are few shareholdings, which are neither large nor complex.  It mainly consists of cash and, nearly a year after probate was granted to the Respondent, on any view, the Respondent has failed to gather in the monies that his mother owned.

15.      The Representor also claims that the Respondent mistreated their mother prior to her death and produces, by way of an exhibit to his affidavit, material from third parties which would appear to support that.  We do not think it is necessary to make any findings in relation to these allegations but record that they were, to a large extent, not answered or otherwise challenged and certainly not responded to on oath. 

16.      I now turn to the three matters said to support the Representor's application and the relevant matters of fact that the Representor cited in support.

The Respondent's capability

17.      It was said that the Respondent had demonstrated that he is not equipped to deal with the estate of his mother.  Various examples were given of this, in particular his failure to open an estate account to receive the principal outstanding asset of the estate - several hundred thousand pounds held by a Jersey law firm which were the proceeds of the sale of immovable property sold on behalf of the Testatrix during her lifetime. 

18.      Messrs BCR Law made it clear that they require the Respondent to open such an account in order to receive the proceeds they held on behalf of his mother.  The Respondent appeared to have made no effort to open such an account until June of 2023 (nine months after his appointment as executor after the grant of probate) and the process is still incomplete.

19.      Various letters written on behalf of the Representor were sent to the Respondent asking for a copy of an inventory, an up to date set of accounts and the like, which were all ignored.  He failed to reply to three letters from advocates representing his brother and, when the Representor issued proceedings, his response (entitled 'without prejudice' although not in fact designed to compromise the proceedings) dated 24 May 2023, did not provide any of the information that was sought.  He said in that letter that the Representor's proceedings were "delaying the distribution of the will".  

20.      The office of the Viscount has attempted to assist the Respondent, as has the Probate Register.  One of the Viscount officers wrote to the Respondent on 31 March 2023 saying that they had received a letter from BCR and that prior to release of the monies they held on their client account BCR simply needed two documents - a certified copy of probate and a bank account naming the Respondent as executor for the estate of his mother. 

21.      The Viscount's officer wrote to the Respondent in similar terms on 18 April 2023 advising him of the "standard procedure for anyone to release funds", namely "documents to prove your identity, namely Grant of Probate and further verified bank details for an executor account".  Apparently, during a phone call on 31 March, the Respondent said that he was "going to set up the relevant bank account although it could take some time". 

22.      The Respondent has criticised BCR Law, but from the evidence available to us, such criticism appeared without foundation.  In his letter to the Viscount dated 17 April 2023, the Respondent accused BCR Law of "stalling events", but there is no evidence of this in the correspondence that we saw. 

23.      Further, the Respondent has failed to comply with various Court orders.  At a directions hearing on 26 July 2023, the Respondent was ordered to file an affidavit setting out (inter alia) the steps he had taken as executor in furtherance of the administration of the estate of his mother and identifying any steps which were outstanding prior to the completion of the administration of the estate.  The Respondent failed to comply with that order, which required him to provide that document on or before 25 August 2023.  He gave no adequate reason for this failure.  This led to a further directions hearing on 8 September 2023, giving him until 15 September to file the affidavit which he ought to have filed by 25 August.  The Respondent did file an affidavit on the 13 September 2023 which was short and although it did exhibit an extensive body of documents, including several hundred documents contained on a memory stick, it did not set out succinctly or at all the steps that the Respondent had taken in furtherance of the administration of the estate of his mother, or identify the steps which were outstanding prior to completion of the administration of the estate.  We found that the administration of this estate, simple though it is, may take a long time to be completed, which would not be in the interest of any of the beneficiaries.

The Respondent's health and welfare

24.      The Viscount, the States of Jersey Police and a firm of advocates have expressed concerns in relation to the Respondent's mental health.  We are in no position to make findings in relation to this matter although, on any view, the Respondent has fixed views which are hostile to the Representor.  The Respondent has found these proceedings extremely stressful and found the process of representing himself very difficult.  He made submissions about his general health which we do not need to set out.

25.      It was said on behalf of the Representor that it was not in the Respondent's interest to continue occupying the office that he currently holds.  Whether or not that is correct, it would not, in our judgment, be sufficient reason to deprive him of the office of executor of his mother's estate were these concerns to stand alone.

The Respondent is not independent

26.      Executors owe a fiduciary duty to the estate as a whole, and those interested thereunder have a right to have the estate duly or properly administered.  The Respondent said that the Representor was a "psychopath", a "megalomaniac" and was "mentally unstable".  In our view, the Respondent is by no means independent and, in view of the hostility he displays to the Representor and possibly other beneficiaries, is unlikely to be able to comply with his fiduciary judgment as his judgment is, having heard his submissions and the way in which they were made, clouded by distrust and hatred of his brother.

The Respondent's response

27.      In response to the Representation, the Respondent said that he had not had enough time to respond to his brother's affidavit from April 2023.  He gave details of his qualifications, of his work experience and stressed that his mother had chosen him as her executor, which she had, and prior to that of course he had been his father's executor.  He made complaints about the alleged failure of BCR to file an income tax return on behalf of his mother while she was alive and said that his mother had agreed to pay him a monthly fee during her lifetime for the assistance he gave her.  He said that the monies held by BCR were the proceeds of sale of a terrace house at 33 West Park that was sold in June 2021. 

28.      He said that he found the experience of acting as an executor had been "difficult".  He said that he had left his mother's National Savings Account open as interest was still paid upon it.  He said that there were a number of matters outstanding, namely the monies held by BCR, documentation held by BCR, the National Savings Account, some shares that ought to be distributed to the children, a Coop account and various other smaller matters.  He also accepted that he needed to open an executor account. 

Decision

29.      In Representation of MacKinnon [2010] JLR 508, the Court of Appeal considered the duties of an executor.  Giving the judgment of the Court, Beloff JA also considered whether or not the executor should pay the costs of another party and be deprived of their usual indemnity from the estate.  At paragraph 42, Beloff JA referred to the judgment of Commissioner Sir Philip Bailhache at first instance in the following terms:

"42. The Commissioner had held (ibid., at para. 14):

"In my judgment, no material distinction is to be drawn in the context of the costs of an administrative action between the position of an executor and the position of a trustee. Both owe fiduciary duties, either to the legatees or to the beneficiaries, as the case may be. The question being discretionary, it is not possible to lay down any hard or fast rules. Nonetheless, one can state that the executor or trustee has what might be termed a margin of discretion. He must be free to conduct himself, and to take decisions, within the parameters of a reasonable framework as he sees fit. It may be, although this must be left for decision on another day, that the margin of discretion for a professional executor or trustee who is being remunerated should be more narrowly circumscribed. But that is not the case here. An unremunerated executor or trustee will not lightly be ordered to pay the costs of litigation if he has made an innocent mistake or acted in a manner which has ex post facto been shown to be misguided or even careless. At the same time, a legatee or beneficiary is entitled to expect a reasonable level of competence, proportionality and good sense from the person entrusted with protecting his interests. In short, an element of intransigence or unreasonableness is, in my judgment, required before an executor can be held liable to pay the costs of a legatee in an administrative action. It is not necessary to show fraud or dishonesty, but the executor's conduct must have crossed the threshold of reasonably justifiable behaviour." [Emphasis supplied.]

I would respectfully endorse his reasoning in that passage, which is replicated at para. 32.

43.      The evaluation of the facts and the consequent exercise of discretion being pre-eminently a matter for the Commissioner as the tribunal of first instance, the decision can only be overturned on the well-known ground of material error, including mistaken self-direction."

30.      The judgment in MacKinnon also considered the power of a Court to authorise remuneration of an executor and held (see paragraphs 29 to 32 of the judgment) that the Court may, in the exercise of its inherent jurisdiction, appoint a professional executor to be remunerated out of the estate, even in the absence of such a provision in the will. 

31.      In the circumstances of this case we agree with the Representor that it was appropriate to appoint a professional executor in the event the Respondent was removed.  We were notified that Viberts Executors Limited were willing to accept such an appointment.

32.      We agree with the observations by the Commissioner in MacKinnon that a beneficiary is entitled to expect a reasonable level of competence, proportionality and good sense from the person entrusted with protecting their interests.  In our view, the beneficiaries have not received this from the Respondent.  He has unreasonably delayed administrating his mother's estate, and that unreasonableness had been compounded by his hostile animus to the Representor and, it appears, possibly other beneficiaries. 

33.      Snell's Equity (32^nd edition) observes at paragraph 31-013:

"The first duty of a personal representative is to take possession of the deceased's assets, or to assume control over them, as soon as he properly can."

This the Respondent has failed to do.

34.      It was certainly true that the Respondent has carried out some steps as executor; for example, he has paid the stamp duty and made various payments, although that has been largely by way of various payments in and out of various bank accounts held by him and not from an executor account, which he has known from the outset he ought to set up as he referred to such an account in a letter he sent to Barclays Bank on 30 November 2022. 

35.      His lack of objectivity, unreasonable failure to open an executor account and failure to comply with straightforward orders made by this Court amount, in our view, to exceptional circumstances warranting his removal.  Accordingly, at the end of the hearing, we made the following orders:

(i)        the Respondent shall be removed forthwith as executor of the Estate of his mother, Hazel Lakeman ("Mrs Lakeman"), pursuant to Article 17(1) of the Probate (Jersey) Law 1998 ("the Law");

(ii)       pursuant to Article 17(2) of the Law, Viberts Executors Limited shall be appointed as executor of the Estate and the Judicial Greffier is directed to make a grant of probate to Viberts Executors Limited;

(iii)      Viberts Executors Limited shall be authorised to charge their reasonable fees and expenses as executors of the said Estate;

(iv)      the Representor shall provide all books, records and other materials, whether held in paper form or electronically, in his capacity as executor / former executor to Viberts Executors Limited forthwith and cooperate fully with the new executors, including responding to any queries that they may have.

36.      In respect of costs, we found (as did the Commissioner at first instance in the case of MacKinnon) that the Respondent's conduct was sufficiently unreasonable, taken as a whole, to warrant him being required to pay the costs of the Representor on the standard (not the indemnity) basis, and ordered that such costs be paid out of the Respondent's share of the net moveable estate of his mother, such payment to be made by the executor to the Representor's advocate before any balance is distributed to the Respondent.

37.      Finally, we gave the beneficiaries fourteen days liberty to apply in case they had any objection to the appointment of Viberts Executors Limited.

Authorities

Probate (Jersey) Law 1998

Representation of MacKinnon [2010] JLR 508.

Snell's Equity (32nd edition).