Probate
[2024]JRC074
Royal Court
(Probate)
3 April 2024
Before :
|
R. J. MacRae, Esq., Deputy Bailiff, and
Jurats Austin-Vautier and Le Heuzé
|
REPRESENTATION OF NICHOLAS RAOUL
LEMPRIERE JOHNSTON
AND
REPRESENTATION OF ROSEL ESTATES LIMITED
Advocate D. Evans for the Representor
judgment
the deputy bailiff:
Background
1.
We heard
these two Representations together on 15 March 2024 and granted them. We now give reasons for so doing.
2.
Nicholas
Lempriere-Johnston ("Nicholas") is the son of Emma
Lempriere-Johnston ("Emma"), the only daughter of Sheila Caroline
Lempriere-Robin ("the Testatrix"), who died on 14 July 2021. The Testatrix executed her last Will and
Testament with regard to her immoveable property on 17 May 2001. Her immoveable property comprised a
house in St Martin called La Vielle Maison. Under the terms of the Will, the
Testatrix devised life enjoyment of La Vielle Maison to Nicholas and the
reversionary ownership to a Jersey company called Rosel Estates Limited
("the Company").
3.
Both
Nicholas and the Company brought parallel applications to the Royal Court
seeking to irrevocably disclaim and renounce their respective interests in the
immoveable property to which we have referred. The Will is not yet registered and,
importantly, Nicholas has never lived in the property or gained any benefit
such as rental income from La Vielle Maison.
4.
The
application made by the Company was supported by the two directors of the
Company, including Emma. The
Company is wholly owned by a Jersey law discretionary trust. The beneficiaries of the settlement are
descendants of the Testatrix, including Emma and Nicholas.
5.
In her
affidavit, sworn in support of the Company's application, Emma indicated
discussions that had been between her and the Testatrix as to how to benefit
her four children, which it is not necessary to detail for the purpose of this
application. As to the delay
between the death of the Testatrix and today, the family has spent a period of
time taking professional advice and considering the matter, including the
decision in relation to renunciation.
This has been a lengthy process.
We do not take the view that any prejudice has been caused by this
period of delay, particularly as Nicholas is the only person who would have
been entitled to benefit the immoveable estate prior to disclaimer of his
interest.
6.
The effect
of the disclaimer is that La Vielle Maison will devolve to Emma. In due course, Nicholas may in any event
inherit that property.
7.
We were
referred to the decision of the Royal Court in Representation of Peter John
Yves Howard [2022] JRC 145 which considered the Court's power to
recognise a purported renunciation of an interest in immoveable property. In that case, the will had been
registered and there were factual matters that the Court needed to consider in
order to determine whether or not one of the beneficiaries had accepted the
legacy, in which case the right to renounce the interest is lost.
8.
The issues
for the Court (see paragraph 12 of the judgment) are:
(i)
Has the
beneficiary by their conduct accepted the legacy under the will?
(ii) If not, must they renounce their interest under
the will within a certain period of registration of the will? And;
(iii) If they have, subject to the Court order,
successfully disclaimed their interest under the will, from when did that take
effect?
Only (i) and (iii) are relevant to this
case.
9.
In Re
Howard, the Court concluded that no prescription period should apply to a
disclaimer under an interest under a will of immoveable, although the Court
noted that it had the power to refuse an application to disclaim if third
parties were adversely affected.
Accordingly, the Court has a discretion to exercise, and delay will be a
factor. The longer a beneficiary
leaves an application to disclaim, the more likely it is the Court may consider
refusing it.
10. In this case, no Acte
d'HĂ©ritier has occurred.
Nicholas has not lived in La Vielle Maison, borrowed against it or
obtained any benefit from the same.
The Will has not been registered.
11. Accordingly, by his conduct, he has not
accepted the legacy under the Will.
There is, in the circumstances, no prejudice to third party or delay
warranting the Court refusing the application to disclaim. We ordered that both Nicholas and the
Company has disclaimed their interest under the Will of the Testatrix prior to
her death, such that La Vielle Maison will devolve under the rules of intestacy
to her sole child, Emma.
Authorities
Representation
of Peter John Yves Howard [2022] JRC 145.