Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Christensen and Le Heuzé |
IN THE MATTER OF THE REPRESENTATION OF HELEN FROST, NEE WHITTAKER
AND IN THE MATTER OF THOMAS MICHAEL FROST
Advocate L. A. Ingram for the Representor.
Advocate S. A. Meiklejohn for the Attorney General.
The Viscount.
judgment
the deputy bailiff:
1. Thomas Frost was fifty-one years old when he disappeared in February of last year. His wife, Helen, has issued a Representation which we heard on 11 July 2024. Convened to the Representation was the Attorney General as partie publique and the Viscount. Mrs Frost sought an order that her husband be declared presumed dead and such other relief as the Court may regard as just.
2. This is a difficult and tragic case. Mr and Mrs Frost met in 1990, married in 1999, and moved to Jersey in 2000. Mrs Frost is an assistant head teacher at a school where she has worked for twenty-four years. Mr and Mrs Frost had two children, a daughter currently aged twenty, and a son currently aged sixteen.
3. Mr Frost did not exhibit any mental health difficulties until October 2003. Since then, he has suffered from episodes of severe psychosis as diagnosed and confirmed by various medical professionals. In this regard, we were particularly assisted by a report from Mr Andy Weir, director of Mental Health and Adult Social Care. Mr Weir is also a registered Mental Health Nurse, having qualified as such in 1995. Mr Weir's report was prepared having regard to all of Mr Frost's mental health records. It was in 2003 that Mr Frost first became known to Mental Health Services. He was admitted to hospital in 2003 and again in 2005 with psychotic episodes and symptoms of depressive illness. On the second admission, there was evidence of self-harm, and a decision on the part of Mr Frost to stop taking prescribed medication.
4. In 2007, there was a further concern regarding his mental health. Mr Frost was reported as becoming withdrawn, suspicious, agitated and experiencing significant psycho-social stress. His mental state settled with anti-psychotic medication. Again, he was reluctant to continue with his medication. During this particular episode, he had attempted to grab the wheel of a car being driven by another.
5. In 2017, he stopped taking his anti-psychotic medication and experienced a relapse in his mental health. He became withdrawn and suspicious, exhibiting bizarre behaviour and after a report that he had assaulted his mother he was admitted to Orchard House. He was exhibiting symptoms of psychosis and lived in the belief that the world was going to end. He was experiencing auditory hallucinations (hearing voices). Anti-psychotic medication and anti-depressant medication had a good effect and he was discharged two weeks later. Again, upon his discharge, he was keen to reduce / stop taking his medication.
6. In April 2018, he was again admitted to Orchard House informally following a rapid deterioration in his mental state. He had stopped taking anti-psychotic medication the month before. He was found at work, sitting at his desk, distressed and not communicating. During the course of his admission to hospital, he failed to return overnight from an episode of leave and was returned by the police the following day. It was unclear where he had spent the night, and he could not say. He was settled with the reintroduction of medication and discharged in May 2018.
7. In January 2021, Mr Frost was made redundant from his then employment as a lawyer. He subsequently gained other employment. Significantly, on 5 February 2021, Mr Frost left the family home at 5am and was discovered in the sea at a beach in St Brelade with the water just below his knees. The fire brigade were required to assist in removing him from the sea. He was described as being highly anxious, making little sense and uncooperative. He was detained by the police for assessment using their powers under the Mental Health (Jersey) Law 2016. When he was admitted to hospital, he was observed to be acutely psychotic, expressing paranoid ideas. He believed his family was at risk and described hearing voices that were telling him to kill himself. His behaviour was very unsettled, including attempting to climb out of the window naked. He described thoughts about dying and "moving on". It was noted that his mental state had deteriorated very quickly and there was a clear association between stopping medication and becoming unwell. He settled again with anti-psychotic and anti-depressant medication but declined the allocation of a community psychiatrist nurse. He was noted to feel ashamed of the circumstances leading to his admission.
8. In August 2021, he told a psychiatrist that he intended to stop taking the anti-psychotic medication and wanted to cease contact with the Mental Health Service. He was advised of the risks of such a decision.
9. In September 2021, his mental state again deteriorated. He was again admitted to hospital. Initially, this was an informal admission but later he was detained under Article 21 of the Mental Health (Jersey) Law 2016 as he presented as hostile, threatening and aggressive towards staff and other patients. He reported to be paranoid and suspicious with clear signs of thought disorder, exhibiting bizarre behaviours on the ward, including entering other patients' bedrooms and going through their belongings. Once again, he settled with the reintroduction of medication and was discharged a few weeks later. He declined support from the home treatment team or from a community psychiatric nurse. He told both the community psychiatrist and his general practitioner that he disliked taking anti-psychotic medication and was not sure that he needed it.
10. He was seen by the community psychiatrist on a number of occasions during 2022, and on each occasion was reported as being well and stable. He again expressed the wish to stop taking anti-psychotic medication and a plan was agreed to slowly reduce this. In December 2022, he expressed a wish to stop being seen and was discharged back to the care of his general practitioner with an option to return to psychiatric services if there was any concern. There was no further contact with mental health services before his disappearance. However, there had plainly been an acute deterioration in his mental health just before his disappearance. Mr Weir supports Mrs Frost's application for the relief that she seeks.
11. Putting to one side Mr Frost's history of poor mental health, Mrs Frost describes a man with a very strong work ethic and moral compass. Nonetheless, she says that his health put a huge strain on their family. Her aim was always to keep the family together, which she did. She noted that during the most recent episodes of ill health, Mr Frost "became significantly affected by his psychiatric condition with increasing speed. There were instances where he would appear to be functioning normally, but within hours, he would become completely disoriented, have no understanding of his surroundings, who was accompanying him or the actual time of day". When suffering from such an episode, Mr Frost would have no awareness of his circumstances or whether he was putting himself in danger. In some cases, he would cease to recognise Mrs Frost or their children. On one occasion, he refused to let his daughter into the house. Mr Frost was generally very reluctant to access mental health assistance or take prescribed medication. He nearly always excluded his wife from conversations with mental health professionals and accordingly she would have no idea, when he was discharged from inpatient care, of the treatment plan, support or medication.
12. In the period prior to February 2023, Mrs Frost thought that her husband appeared to be reasonably well. In December 2022, Mr Frost decided to pay a lump sum of national insurance contributions to ensure he had adequate financial provision for his retirement. The family began discussing a trip to visit the United States to see Mr and Mrs Frost's daughter at university. This trip was planned for March 2023. At the same time, they began to plan for a skiing trip in February 2023. Their son, in particular, was very excited about the holiday as they had had to cancel a similar holiday the previous year.
13. On Thursday 9 February, shortly before the holiday was due to start, Mr Frost did not sleep well and seemed very preoccupied. He seemed to be agitated about something to do with work. Mrs Frost was sufficiently concerned to telephone Mr Frost's line manager at work on the morning of Friday 10 February. When Mrs Frost returned home from work that day, Mr Frost was distant, and his mental functioning had deteriorated since the previous day. They were due to take the last flight to London Gatwick that evening and she was worried. [Redacted] Mr Frost went for a walk to clear his head. When he returned home, the family had a meal. There was little conversation. When she was on her own with her husband, Mrs Frost asked Mr Frost if he was well enough to go on holiday. He was adamant that he was.
14. At Jersey airport departures, Mr Frost was pensive and distant but did speak to a number of people that they knew. When they reached Gatwick, they checked into an hotel. They had an early flight to Geneva the next day. In the early hours of Saturday 11 February, Mr Frost woke up. He was disorientated, agitated and wanted to leave the hotel room "to sort a few issues out". Mrs Frost became very worried about this deterioration in his behaviour. She suggested that Mr Frost took a Lorazepam tablet to help him calm down. This he did. Mr Frost seemed to calm down and said he had just had a panic attack and would be fine. Mrs Frost felt that he was not well enough to go on holiday and she was not confident that it would be safe for him to take him skiing on the mountains. [Redacted]. There was a flight to Jersey which took off before the flight to Geneva. This created a window for Mr Frost to be taken through the airport by his family and return home safely to Jersey.
15. Mr Frost accepted this was the right course of action. He wanted Mrs Frost and their son to go on holiday nonetheless. Mrs Frost agreed to this on the footing that Mr Frost's parents could collect him from the airport when he got home and look after him. Mr Frost was calm for the remainder of the night. However, when they checked out of the hotel the next morning, Mr Frost was "not functioning well at all". He was disorientated. Mrs Frost said that had she been alone with Mr Frost, she would have returned home, but that she felt that she ought to go on holiday to cater for her son's long-standing wishes and expectations.
16. During breakfast at the airport, Mrs Frost sent a WhatsApp communication to Mr Frost's parents to update them on the medication that Mr Frost had taken, where his medication was and what luggage he had with him. She also gave them the Mental Health crisis team telephone number and asked them to call once Mr Frost was back on the island. After breakfast, they walked Mr Frost to the departure gate. Mr and Mrs Frost hugged each other. Mrs Frost said that she would look after their son and that Mr Frost should get better so that they could all go to America to see their daughter in March. Mrs Frost has never seen Mr Frost again.
17. Mr Frost arrived safely back in Jersey just before 8am and went to his parent's house in St Ouen. His parents have sworn an affidavit which speaks to the events which followed.
18. Mr and Mrs Frost Senior collected their son from the airport. They all went home and had breakfast. Mr Frost went for a sleep as he was tired. During the afternoon, Mr Frost and Mr Frost Senior went for a walk with Mr and Mrs Frost's dog. Mrs Frost Senior telephoned either Orchard House or the Mental Health crisis line as a precaution just in case they were needed. After the dog walk, Mr Frost went to his bedroom in his parent's house and stayed there for the remainder of the afternoon. That evening, he had a bath which Helen Frost said was unusual for Mr Frost. After an evening meal, Mr Frost went back to his bedroom with a radio. At about 10pm, Mrs Frost Senior went into her son's bedroom to say goodnight. She found her son just standing in the room. Shortly after, Mr Frost Senior saw his son in the kitchen eating peanuts. He said he was going to sit on the sofa in the sitting room.
19. At 1am in the morning on Sunday 12 February, Mrs Frost Senior was woken up by their dog barking in the garden outside the house. She let the dog into the house. She noticed that the light in her son's bedroom was still on and assumed he was still awake. Mrs Frost Senior knocked on her son's bedroom door and opened it to discover that her son was not in his bedroom at all. Mr and Mrs Frost Senior could not find their son in or near the house. Mr Frost Senior drove around the nearby lanes and Mrs Frost Senior called Orchard House and explained that Thomas Frost had gone missing. Shortly thereafter, two States of Jersey Police officers came to the house and that morning, on any view, a substantial, sustained and extensive search began. Mr and Mrs Frost Senior conclude their affidavit by saying:
"Unfortunately, Thomas was never found and we do not understand what happened to him that night. However, given that there has been no contact with him or any evidence that he is alive, we have resigned ourselves to believe that something terrible must have happened to him that night and he died as a direct result."
20. Although not referred to in the evidence of Mr and Mrs Frost Senior, it is plain from the evidence of the States of Jersey Police that Thomas Frost had left his mobile telephone, his passport and boarding pass from his flight at his parent's house. His computer (from his home) was seized and did not assist with indicating any travel or other plans. His mobile phone SIM card was not found but has not been used since his disappearance. His mobile telephone search history showed a search on 10 December 2022 under "I want to die" and on 23 January 2023 "Should I give up". There has been no financial activity on Thomas Frost's bank accounts - insofar as they were accessible to Helen Frost. Nothing otherwise of note was found on his computer or elsewhere in relation to his disappearance. No suicide note has been found. When Mr Frost disappeared, he appears not to have had a mobile telephone on him and there is no suggestion that he had any other electronic means of communication. Extensive appeals were made via local television, radio and social media to inform islanders and visitors regarding Thomas Frost's disappearance. Posters were circulated. Further press appeals were made.
21. There were no positive sightings and indeed very few possible sightings reported. Initially a systematic search close to where Thomas Frost was last seen alive was made. This included searches of areas of inland water and the deployment of an underwater search team, deployed to search areas of water that were too deep to be safely searched by Jersey Fire and Rescue Service. Each search team officer was allocated a tasking sheet that could not be finalised until the area was searched. Where search teams officers were restricted by physical obstructions such as vegetation growth or sheer drops from cliffs, drones and / or Channel Islands Air Search or Jersey Coastguard were deployed. Specific locations searched included, for example only, Val de la Mare Reservoir via a dive team, various German bunkers and accessible areas of St Aubin's Fort. The police dog was also deployed in this search. Assisting with the search were the States of Jersey Police, States of Guernsey (including States of Guernsey Coastguard), States of Jersey Fire and Rescue Service, Channel Island Air Search, Channel Island Search Drone, Jersey Coastguard, Avon and Somerset Constabulary Underwater Search Unit, Jersey Water, the honorary police and the RNLI. Mr Frost's disappearance was logged with the international missing persons database and the police national computer and Interpol. There has been no authorised or unauthorised use of any of his bank accounts or those of the families to which he had access. Over the weeks, the search was extended to cover additional areas in the island.
22. An independent review of the investigation was carried out four weeks after Mr Frost's disappearance to ensure that all relevant areas had been considered and for any additional lines of enquiry to be employed. Specialist search dogs from the UK were deployed to conduct a search over particular areas. Whilst there was an expectation that Mr Frost would be found, the investigation continued to pursue all relevant lines of enquiry. Monthly appeals took place during March, April and May, to be repeated at three, six, nine and twelve months. The police report says that there was an "unprecedented" number of events in 2023 where people had been found either at sea or in coastal areas. However, there was no sighting of Mr Frost.
23. Acting Superintendent Craig Jackson has overseen the investigation. The police report notes that the "daily challenges faced by Helen and her two children were overwhelming" as a consequence of the disappearance of Mr Frost. Although the investigation has not formally closed, DCI Jackson sent an email to Mr Weir on 29 February 2024 which said:
"I have been involved in running the missing person enquiry for Tom Frost since we received the report on 12th February 2023. Extensive enquiries have taken place and we now consider Tom as deceased. There have been no positive sightings of Tom since 12th February 2023."
24. In her second affidavit, Mrs Frost details the family, personal and financial consequences of Mr Frost's disappearance and the problems and difficulties it has caused to her and her family, some of them acute. She seeks a declaration that her husband is presumed to have died and any other orders that the Court considers just in all the circumstances of the case. It is not necessary to detail all the difficulties she faces, but she speaks to an extremely challenging emotional and financial situation which would be made worse if she were to die with her husband's status unresolved. The family home is in joint names, and she is unable to sell it and at the same time is struggling to maintain it on her salary.
25. As to her husband's disappearance, she says at paragraph 6 of her affidavit:
"It remains my view that my husband has passed away. I am absolutely certain of this. Nothing has happened since February 11th 2023 to give me any hope that he is alive. Tom's passport, driving licence and all other means of identification were either taken by the police immediately after his disappearance or remain untouched in the family home. Tom had no electronic devices and he left his parents' home and there has been nothing to suggest he is alive on his social media accounts. Tom had no means with which to leave the island, no reason to leave his family and no money to do so. Bank accounts, emails or messages have not been accessed, other than by myself or those investigating his disappearance. None have been accessed by Tom."
26. At paragraph 55 of her affidavit, Mrs Frost says that she believes that her husband has "passed away"... "through some misadventure caused by a recurrence of an acute psychotic episode". She concludes "I am certain that he is no longer with us".
27. In Jersey customary law there is a rebuttable presumption that a person has died if there has been no news of him for seven years. This principle was last considered by the Royal Court In the matter of Brian George Neill [2012] JRC 106. In that case, Stephen Neill wrote to the probate registrar stating that his father Brian Neill had disappeared in Spain on 10 January 2004 and had not been seen or heard of since. Being unable to find a will, he sought the grant of Letters of Administration to him as the only son and principal heir. He had one sibling, his sister, Lindsey Hiron. The probate registrar presented a statement to Bailiff for the direction of the Inferior Number pursuant to Article 7(2) of the Probate (Jersey) Law 1998 ("the Probate Law") to which we will return in due course.
28. The Court directed Stephen Neill to file a statement of claim and Miss Hiron to file an answer, together with an advocate on behalf of Brian Neill.
29. At the date of the hearing, Brian Neill, if living, would be seventy-five. He was born in London in 1936, moved to Jersey in 1973 and left Jersey in 1998 when he purchased a villa in Spain.
30. He was last seen on 10 January 2004 and reported missing on 14 January 2004. There had been no use of his bank account or contact with his family or use of his Spanish property since that date. In respect of the customary law of presumption, Commissioner Clyde-Smith, giving the judgment of the Royal Court, said the following:
"12. Under Jersey customary law, there is a presumption of death seven years after the last news. Quoting from the case of Elle Du Val-y-Thomas Nicolas Le Gros ( Exs 1877 Dec. 3rd) as referred to by Le Gros in his Traité du Droit Coutumier de L'île de Jersey at page 86:- "Considérant que par la Coutume de ce Bailliage, un absent est légalement présumé mort et que sa succession est réputée ouverte après le laps de sept années révolues à partir de la dernière nouvelle."
13. Although there is no recent report of its application, it has been applied consistently in a number of cases in the 18th and 19th centuries (see Godfray-v-West (1888) 212 Ex 411, Marett-v-Robin (1897) 218 Ex 423 and O'Boyle et autres-v-Le Masurier (1905) 223 Ex 500) and there is no doubt that it remains part of our customary law. We note that a similar presumption applies under English law (see Phipson on Evidence 16th edition at paragraph 6-26). There is no bar from calling evidence to rebut the presumption and it is therefore a rebuttable presumption."
31. In Duval v Le Gros (1877), the Court noted that pursuant to the customary law of the Bailiwick, an absentee is presumed in law to be dead and his or her succession is deemed to open after the lapse of seven full years from the last news of the person. Nicholas Le Gros had left the island on 4 March 1843 and no news of him had been received since the day of his departure. Accordingly, he was presumed dead and his succession was considered to be open with effect from 4 March 1850.
32. In Godfray v West (1888), various persons were convened to choose an administrator of the property of Frederick George West who had been absent from the island for well over seven years. Again, the Court noted in this and other cases that, by the customary law of the Bailiwick, an absentee is presumed in law to have died seven years from last news of him.
33. Marrett v Robin (1897) concerned William Hoare who married his wife Louisa Marrett in 1868. Soon after the marriage, Mr Hoare left the island, apparently for the United States. No news was received of him, and for well over twenty years nothing further was heard. Accordingly, approximately twenty-eight or twenty-nine years after his disappearance, the Court declared that he was dead by operation of law. The Court judged that Mr Hoare must be presumed in law to be dead as from 6 May 1897, i.e. the date of the hearing.
34. In O'Boyle v Le Masurier (1905), the Court was concerned in relation to the date upon which Dennis Black could have been presumed to have died. He was a Master Mariner who left Sunderland in June 1863 bound for Karachi. Nothing was heard of him or the vessel from 20 June 1863, and on 9 March 1864 it was declared missing by Lloyds. There was presumption that the ship had been lost with all hands during the course of the voyage. Dennis Black had made a will in 1858 in which, inter alia, he had bequeathed property to his uncles, Francis Black and James Black, and in the event of either pre-deceasing him, the proportion of the estate bequeathed to each was to be divided equally between their children in equal shares. Francis Black died in 1896, but James Black died in September 1863. Another member of the family, Archibald Black, had died in December 1863 and named Dennis Black as his residuary legatee. The Court held that by the customary law of the island, Dennis Black could not be legally presumed dead until seven years absence, from when the last news of him was received in the summer of 1863. Accordingly, he was deemed to have survived the death of Archibald Black in December 1863 and had acquired the right to the residue of his testamentary succession.
35. The Jersey case law is consistent as to the application of the customary law presumption, save that in the case of Hoare, the Court held that the deceased was presumed in law to be dead as at the date of the hearing, and in the other cases, from the expiry of seven years from the date of the last news.
36. Clearly this maxim has no application in these facts as Mr Frost has not been missing for seven years.
37. As to Article 7 of the Probate Law provides:
"7 Evidence of death
(1) An applicant for a grant shall provide the Judicial Greffier with a certificate of the death of the deceased person to whom the application relates, or such other evidence of the death as the Judicial Greffier may approve.
(2) Where the applicant is unable to provide such evidence as aforesaid, the Judicial Greffier shall present a statement of the matter to the Bailiff for the directions of the Inferior Number.
(3) The Inferior Number shall -
(a) order the applicant to be convened and hear such evidence of the death as the applicant produces; and
(b) order such other persons to be convened, such additional evidence to be heard and such enquiries made as it considers necessary.
(4) If the Inferior Number is satisfied that the death of the person to whom the application relates may be presumed beyond all reasonable doubt to have occurred on or after a certain date, it may make a declaration to that effect and such order as the circumstances require.
(5) A declaration made under paragraph (4) shall be -
(a) received in any proceedings as evidence of the death of the person to whom it relates; and
(b) deemed to be proof of the death, unless cause to the contrary is shown."
38. It may be that the Court is not seized of an application under Article 7(4) as this matter has not been referred to the Court by the Greffier as prescribed by Article 7. In any event, it can be seen that under Article 7(4) an application can be made at any time (there is no need to wait for seven years) in the context of an application for a Grant of Probate to deal with moveable estate, and in those circumstances the Inferior Number must be satisfied that the death of the person to whom the application relates "may be presumed beyond all reasonable doubt to have occurred on or after a certain date".
39. There is clearly a difference between the burden and standard of proof depending upon whether the route available to an applicant is the seven-year rule under customary law or the Article 7 Probate Law route. In respect of the former, there is a rebuttable presumption of death and in the absence of evidence suggesting that person in question is still living, then the Court will make the declaration sought. The position is different under Article 7 of the Probate Law. It is for the applicant to satisfy the Court beyond all reasonable doubt that the death may be presumed.
40. Phipson on Evidence explains that where a presumption operates, the Court may draw certain conclusions. On most occasions this will be in the absence of evidence of rebuttal thus assisting the party who bears the burden of proof. The current edition of Phipson on Evidence (16th edition - 2005) notes that presumptions can be rebuttable or irrebuttable. The customary law of presumption of death is plainly rebuttable. Phipson says that the presumption of death is a rebuttable presumption of law where it arises pursuant to the English equivalent of the seven-year rule. At paragraph 6-26, Phipson says:
"A person who has not been heard of for seven years by those who, if he had been alive, would be likely to have heard of him is presumed to be dead. There is no presumption as to the time during the seven years at which he died, and the onus of proving death on any particular date rests with the person to whose title that fact is essential. In cases involving probate, death is frequently proved as a matter of fact and not of law, before the seven years."
41. In the case of the application heard in respect of Brian Neill, the position was different, as the seven year rule applied and accordingly the Court observed at paragraph 17:
"At paragraph 6.17 Phipson on Evidence goes on to say that where a rebuttable presumption of law applies in favour of one party (in this case, Stephen Neill) on the proof or admission of one fact (no news for seven years) another fact (the death of Brian Neill) is to be presumed. Once the presumption applies, the evidential burden is on the other party (in this case, Lindsey Hiron) to disprove the presumed fact. Even if Lindsey Hiron adduces evidence sufficient to rebut the presumption, the persuasive burden remains on Stephen Neill to satisfy the Court that the death of his father should be presumed."
42. In that case, although there had been no news of Brian Neill for seven years, both Miss Hiron and Advocate Thacker (on behalf of Brian Neill) opposed the making of a declaration that the death should be presumed for various reasons set out at paragraph 19 of the judgment. In summary, Miss Hiron concluded that her father had manufactured his own disappearance to relieve himself of the breakdown of his relationship with his son, Stephen Neill. She expected him to reappear one day. This assertion was supported by Advocate Thacker. Owing to these circumstances and Stephen Neill's failure to provide an affidavit as directed or to attend the hearing, the Court held that there was sufficient evidence to rebut the presumption and declined to make the declaration sought.
43. The Probate Law is concerned with moveable estates. Immoveable estates passing on intestate succession do not require probate as the immoveable property immediately devolves on death to the heirs at law by reason of the customary law principle of le mort saisit le vif. Once a will is registered the title vests in the beneficiary / beneficiaries. Mr Frost had executed a will of realty which left all his immovable estate to his wife, upon his death. As noted above, an applicant seeking relief under Article 7 of the Probate Law needs to discharge a high burden of proof - there is no presumption of death unless the Inferior Number is satisfied beyond all reasonable doubt that the death of the person to whom the application relates has occurred. The majority of Mr Frost's assets were contained in two immovable properties and accordingly relief under the Probate Law would not arguably assist. The Article 7 procedure as set out above has not been adopted by Mrs Frost, although undoubtedly could be in relation to Mr Frost's moveable estate. The Attorney General submits that although this is not an application made under the Probate Law per se, the Court in its discretion may treat it as such and if the Court was to make a declaration under Article 7(4) that would certainly enable the moveable estate of Mr Frost to devolve and be dealt with by Mrs Frost as his executrix.
44. Although the Probate Law governs moveable estates only, the Attorney General argued that the effect of the Royal Court making a declaration under Article 7(4) of the Law would be sufficient to permit Mrs Frost to deal with Mr Frost's immoveable estate too. The wording of Article 7(5) suggests that a declaration under Article 7(4) may be good for all purposes as it will be received in "any proceedings" as evidence of death. There is nothing in the wording of Article 7(4) which suggests that the declaratory effect of relief under Article 7(4) is restricted to moveable estates or that even if it prima facie was so limited the Court cannot declare that it extended to the entirety of the estate of the deceased, bearing in mind that the Court is empowered under Article 7(4) to make "such order as the circumstances require".
45. It would perhaps be a strange outcome if the jurisdiction of the Inferior Number was engaged for the purpose of determining whether or not the death of a particular person may be presumed beyond reasonable doubt to have occurred, but only for the purposes of one part of that person's estate and not another.
46. It was submitted on behalf of Mrs Frost that the Probate Law is not engaged in this application and that there are strong policy reasons for the Court holding that the burden of proof on the applicant to prove that death may be presumed should be on the balance of probabilities.
47. We have considered the legislative history of Article 7 of the Probate Law. The report accompanying the proposition when it was lodged for debate with the States merely confirms that Articles 7 and 8 "do not contain any new principles but merely represent an improvement of the previous drafting".
48. In that regard we have considered the terms of the Probate (Jersey) Law 1949 which, at Article 8 under the title "Presumption of death", provides as follows:
"(4) The court, if satisfied that the death of the person in respect of whose personal estate the application has been made may be presumed beyond all reasonable doubt to have occurred on or after a certain date, may make a declaration accordingly, and, subject to the provisions of this Law and to rules of court, may make such orders as the circumstances may require.
(5) Where a declaration of presumption of death has been made by the court under this Article, such declaration shall, in any proceedings, be received as evidence of the death, and be deemed to be proof of the death unless cause to the contrary is shewn."
49. It is perhaps noteworthy that the reference to "personal estate" in Article 8(4) of the 1949 Law has been omitted from the successor legislation and that may lend force to the argument that Article 7(4) of the Probate Law allows the Court to make an order which affects the entirety of the estate of the deceased. Further, Article 8(4) of the 1949 Law says that any such orders that the Court may make should be "subject to the provisions of [the 1949] Law". This perhaps would support the argument that the terms and effect of the Court's declaration would be limited to the moveable estate of the person whose personal estate was subject to the application. There are no such limitations contained in Article 7(4) of the Probate Law.
50. Counsel were invited to consider whether the Royal Court had previously made any orders under Article 8 of the 1949 Law or Article 7 of the Probate Law. Counsel were only able to find one instance of the Court so doing in an unreported case called Maguire in 1988, where the Court made a declaration of presumption of death under Article 8(5) of the 1949 Law. The judgment was one paragraph in length and no authorities were cited. Accordingly, the assistance we obtained from this previous decision of the Royal Court was limited.
51. It was suggested on behalf of Mrs Frost that the Court should grant the relief sought in the exercise of its inherent jurisdiction.
52. It is generally recognised that the Royal Court enjoys an inherent jurisdiction which is wider than the equivalent jurisdiction enjoyed by the English High Court. Nonetheless, it is not unlimited.
53. In Finance and Economic Committee v Bastion Offshore Trust Company Limited [1994] JLR 370, the Jersey Court of Appeal said at page 382:
"Practitioners in these courts and in the courts of Guernsey are familiar with the maxims "La cour est toute puissante" and "The court is master of its own procedure." The better known a proposition is, the harder it is to find authority for it and so it turns out if one seeks judicial statements of these two maxims (though in Guernsey the Court of Appeal relied on the second maxim in Cherub Invs. Ltd. v. Channel Islands Aero Club (Guernsey) Ltd. (1).
Both maxims are expressions of the inherent jurisdiction of the court. So far as English law is concerned, the inherent jurisdiction of the court has been said to be-
"a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them." (37 Halsbury's Laws of England, 4th ed ., para. 14, at 23).
Reference is there made to a lecture on the topic, Jacob, The Inherent Jurisdiction of the Court, 23 Current Legal Problems, 23 (1970). The definition quoted above first appeared in that erudite and authoritative lecture and it has been approved judicially in Canada and New Zealand.
One feature of the inherent jurisdiction is that it can exist alongside an identical or similar rule of court. The court does not lose its power because a rule is made (though there may be many cases where the court will have no need to look outside the text of the rule). Striking out pleadings is the classic example of overlap of powers. The fact that the Rules of the Supreme Court in England make express provision for striking out and dismissing an action or pleading has been held not to displace the court's inherent power to do so. As Sir Jack Jacob said in his lecture (loc. cit., at 50): "The inherent jurisdiction of the court is a most valuable adjunct to the powers conferred on the court by the Rules."
54. In the case of Jones v AG [2000] JLR 103, the Court of Appeal held that the Royal Court's statutory power to hold and regulate a criminal trial derived from Loi (1864) Réglant La Procédure Criminelle, and Article 56 of that Law provided a jurisdiction for excusing a juror on the grounds of illness so that the trial might continue with eleven jurors. The Court did not have an inherent jurisdiction in those circumstances to discharge a juror for a reason not permitted by statute and continue the trial with eleven jurors. It was possible for an inherent jurisdiction to exist in respect of matters about which a statute was silent or supplement a permissive jurisdiction granted by statute, but not to confer a power which was inconsistent with mandatory statutory provision.
55. Giving the judgment of the Court of Appeal, Nutting JA said:
"The basis of the inherent power of a judge in this jurisdiction was considered in Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd. (1). The court described that inherent power in the following way (1998 JLR at 188):
"In our view, the vital clue to the nature of inherent jurisdiction in its procedural setting ... is necessity. The court has a particular procedural power because it has to have it to be a court in any meaningful sense. On this basis, the power to require the attendance of witnesses, whether to testify or to produce documents, the power to control abuse of the process of the court, the power to dismiss claims for want of prosecution, the power to issue practice directions, the power to decide who may or may not appear before the court, the power to correct errors in its own orders and many other powers may all be recognized as derived from a single pool, not of powers but of power drawn upon as necessity dictates.
It will be observed that this approach is antithetical to a definition of inherent jurisdiction based simply on fairness or by reference to what is perceived in a particular situation to be just. If inherent jurisdiction exists to enable a court to order that a thing be done, fairness and justice will obviously be major factors to be taken into account when the court is deciding whether or not to exercise its discretion to so order; but the conclusion that it would be fair or just to order that that thing be done does not determine whether there is inherent jurisdiction to order it."
The concept of necessity predicates a situation where the court has power to do something but can only achieve it by doing something else: an inherent power can be invoked in such circumstances to enable the court to act effectively. The rationale for the existence of the power is the court's invocation of an implied power to do something which is ancillary to that which the court has an explicit power to do.
Plainly it is possible for an inherent jurisdiction to exist in respect of matters about which a statute is silent. Equally an inherent jurisdiction may supplement a permissive jurisdiction granted by statute. What it cannot do is to confer a power inconsistent with a statutory provision which is itself mandatory."
56. The Court of Appeal concluded at page 111:
"In the judgment of this court the inherent power which the Bailiff sought to invoke was neither procedural nor ancillary in nature; nor did any question of necessity arise."
57. The Attorney General said that inherent jurisdiction cannot be invoked simply on the grounds of a perceived need to do fairness or justice in a given situation. It must be necessary and is generally exercised for the purpose of procedural matters so as to enable the Court to function effectively.
58. The customary law of presumption of death by virtue of the seven-year rule plainly has no application on these facts. Nevertheless, the customary law of Jersey is still in a state of development. As the Privy Council said in Snell v Beadle [2001] JLR 118 per Lord Hope at paragraph 20:
"For these reasons, their Lordships consider that, as the customary law of Jersey has not been enshrined in a coutume, the proper approach is to regard it as being still in a state of development. It is capable of being refined or clarified by judicial decision as the customary law is applied to a new set of facts."
59. Further, such development of the customary law is likely to be led by the Royal Court. As Jones JA said in Reg's Skips Limited v Yates [2008] JLR 191 at paragraph 33:
"33. Whilst such issues may be capable of resolution without difficulty, resolving them might involve some development of the Customary Law. We believe that it is right that, wherever possible, such development should be considered in the first instance by the Royal Court, rather than by the Court of Appeal without the Royal Court's assistance."
60. We have noted the relevant provisions of the Probate Law and their effect. It has been drawn to our attention that in England and Wales, Parliament has enacted the Presumption of Death Act 2013 which introduces into those jurisdictions a new court-based procedure enabling those left behind to obtain a declaration from the High Court that a missing person is deemed to have died. The court will make the declaration if it is satisfied that the missing person has died or has not been known to be alive for a period of at least seven years. The applicant needs to have sufficient interest in the determination of the application, otherwise the court must refuse to hear the application. Accordingly, the applicant will generally be a person who is directly interested in the estate of the deceased, either by will or on intestacy. The declaration must state by what date the missing person is deemed to have died or, if known, when they have died, and the effect of the declaration is conclusive proof of the missing person's presumed death and effective for all purpose and against all persons. The court has the power to vary or revoke the declaration of presumed death - the Explanatory Note which accompanied the legislation, noting, for example, that may be necessary where the missing person returns alive or where there is evidence that the missing person was alive at a later date than the declaration provided for. A variation order does not affect property acquired as a result of the declaration received in good faith. There is a procedure for giving of notice of the application to various persons who may be affected and the court the power on the application of the parties or its own motion to give notice to the Attorney General. The right to intervene is given to specific persons, namely the missing person's spouse or partner, parent, child, sibling and the Attorney General.
61. It has also been drawn to our attention that the courts of England and Wales also have powers under the Guardianship (Missing Persons) Act 2017 to appoint a guardian if a person is a missing person (as defined in Article 1 of the statute). A person in Mrs Frost's situation would be able to apply for a guardianship order which would give her various powers, including the power to deal with Mr Frost's property and financial affairs. This would include a power, for example, to sell the property. There are certain limits on the guardian's powers.
62. Similar legislation has been enacted in Scotland - the Presumption of Death (Scotland) Act 1977 and in Northern Ireland - the Presumption of Death Act (Northern Ireland) 2009. In all three jurisdictions, the burden is on the applicant to the civil standard.
63. It is clear from the relatively recent decision of the Royal Court in Neill [2012] referred to above, that there is a presumption of death seven years after the person has gone missing under Jersey customary law. That law has no application in this case and there is no justification in reconsidering the ambit or effect of that rule of law.
64. The Royal Court has an extensive inherent jurisdiction, the principles for the exercise of which we have referred to above. Although the matter is not free from doubt, we are of the view that to establish a rule of law as opposed to a rule of procedure, at least in the circumstances of this case, would not be an appropriate exercise of the Court's inherent jurisdiction. If we are wrong about that and it was possible to exercise the Court's inherent jurisdiction in circumstances such as these, then we agree with Mrs Frost that it would be necessary so to do, but that we should only do so in terms consistent with legislation that has relatively recently been adopted by the States, namely the Probate Law. Accordingly, the burden on the applicant would be in accordance with Article 7(4) and not the lower standard of balance of probabilities. It would not be right to exercise the Royal Court's inherent jurisdiction in a way that was inconsistent with the terms of a statute which had effect in relation to part of the estate of the deceased. It would be wrong in principle for there to be a different test for finding a presumption of death depending upon the nature of the property of the deceased with which the Court was considering.
65. As regards Article 7(4) of the Probate Law, the Court has concluded that for reasons of construction advanced by the Attorney General which we have touched on above, the Court is empowered under Article 7(4) to grant declaratory relief extending to the entirety of the assets of a deceased applicant including their immoveable estate. Such a declaration would be effective for all purposes, regardless of whether the estate concerned was moveable or immoveable and in respect of all proceedings and for all purposes
66. In the event that the Court is incorrect in that conclusion, in our view, as a matter of the customary law the Court is empowered, on the applicant of a person with a sufficient financial interest in the death of a person to whom the application relates, to seek an order from the Royal Court in these circumstances. In the event of such an application being made then all persons with a similar interest should be convened to the hearing, as should the Attorney General and the Viscount. The Court is empowered to make a declaration in such terms as it thinks fit, if it is satisfied that the death of the person to whom the application relates may be presumed beyond reasonable doubt to have occurred on or after a certain date. Further, the Court has the power to review or vary such order on subsequent application of an interested person or the Attorney General should the circumstances warrant it.
67. In our collective view, it is appropriate for the customary law of Jersey in this area to develop. The seven-year rule was developed by the Courts at a different time when quite different circumstances prevailed. The Scottish Law Commission Report from 1974 on the Presumption of Death noted that the Scottish Common Law presumption in favour of the continuance of life in the absence of direct or circumstantial evidence of earlier death, led to considerable hardship owing to a presumption that a person had not died until the ordinary maximum span of life had elapsed, and there was even a dispute as to how long that span was. It was recognised that there needed to be a limitation on the presumption and as noted, the common law rule (and indeed the Jersey seven year rule) was established at a different time when facilities of travel, postage and communication generally were in a very different state from current circumstances. As Lord Salvesen observed in Grieg v Trustees of the Edinburgh Merchant Company's Widows' Fund 1921 SC 76 at page 88:
"At that time, if a man went to a distant country, the expense of returning and even the expense of communicating with his friends was so great as to make it difficult for anyone who did not attain a position of some affluence to undertake the cost. Mere silence, accordingly, even for a very long period of time, was held not sufficient per se to overcome the presumption of life, unless the absent person had, at the date when the declarator was sought, already reached the upmost span of human existence."
68. It was noted by the Scottish Law Commission that by the 1920s, circumstances had "radically altered" and "silence for a number of years would seem to make it more probable that the missing person had died". The Scottish Law Commission report suggested that the presumption of death - even after seven years - must have often applied to people "who may well be, and may be strongly suggested to be, still alive". In the context of an island such as Jersey, for example during the nineteenth century, it may have been quite common for islanders, particularly men, to leave the island never to be heard of again, and important for those left behind to be able to have the certainty of an order to the effect that they were presumed to have died. The case law above demonstrates this.
69. Circumstances have now changed. Modern life is very different. The vast majority of people, including Mr Frost, possess a mobile telephone that they frequently use. It is very difficult, sometimes impossible, to travel, spend money and communicate whether by mobile telephone or, for example, email without leaving an electronic or digital footprint. It is important for the Court to recognise in appropriate circumstances, particularly in the absence of legislation, that the Court has a necessary power to declare that a person has died, so long as it is satisfied that a high evidential burden resting on the applicant has been discharged if the application is made prior to the expiry of the seventh year of their disappearance.
70. We have set out the evidence at length above. We are satisfied that the death of Mr Frost may be presumed beyond all reasonable doubt to have occurred at some time between 12 February 2023 and today. We declare that he is presumed to be dead and will hear counsel as to the detailed terms of the appropriate order in the circumstances.
71. Our condolences go to Mrs Frost, her children, Mr Frost's parents and their wider family and friends.
Authorities
Mental Health (Jersey) Law 2016.
In the matter of Brian George Neill [2012] JRC 106.
Probate (Jersey) Law 1998.
Duval v Le Gros (1877).
Godfray v West (1888).
Marrett v Robin (1897)
O'Boyle v Le Masurier (1905).
Phipson on Evidence (16th edition - 2005).
Probate (Jersey) Law 1949.
Finance and Economic Committee v Bastion Offshore Trust Company Limited [1994] JLR 370.
Snell v Beadle [2001] JLR 118.
Reg's Skips Limited v Yates [2008] JLR 191.
Presumption of Death Act 2013.
Guardianship (Missing Persons) Act 2017.
Presumption of Death (Scotland) Act 1977.
Presumption of Death Act (Northern Ireland) 2009.
Grieg v Trustees of the Edinburgh Merchant Company's Widows' Fund 1921 SC 76