Jersey Unreported Judgments

[2007]JRC108

royal court

(Samedi Division)

7^th June 2007 

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats, De Veulle and Newcombe

 

In the matter of the Instrument Trust known as the Browne Family Jersey Trust

And in the matter of Article 51 of the Trust (Jersey) Law 1984 (as amended)

Advocate M. J. Thompson for the Representor.

judgment

the COMMISSIONER:

1.        This is a representation by Royal Bank of Canada Trustees Limited ("the Representor") in its capacity as trustee of the Browne Family Jersey Trust ("the Trust") established by a Deed of Trust dated 10^th October, 1977.

2.        Part of the trust fund or the Trust comprises a BVI incorporated company called Le Puy Holdings Limited ("Le Puy"). Le Puy beneficially owns land and buildings known as La Fornance situated in the district of San Giovanni D'Asso in the province of Siena, Italy ("the Italian Property").

3.        Legal title to the Italian Property vests as to one half in the name of Mrs Anne Penelope Browne ("Mrs Browne"), the settlor of the Trust, and as to the other half in the name of her late husband Lieutenant Commander Andrew Browne ("Commander Browne").

4.        Commander and Mrs Browne hold the Italian Property as nominees for Le Puy pursuant to a Nominee Agreement dated 14^th May, 1998 drawn up under English Law ("The Nominee Agreement"). 

5.        Under the Nominee Agreement, Commander and Mrs Browne acknowledged and declared inter alia that they hold the Italian Property to the order and for the absolute benefit of Le Puy.

6.        Commander Browne died on 2^nd April 2005, resident and deemed domiciled in England, and by his Will dated 21^st September 2000, he appointed the Regent Trust Company Limited ("Regent"), a company incorporated and resident in Jersey, as executor and left any Italian property he may own to the eldest of his sons, Simon Browne, Adam Denniston Browne and James Browne. The inclusion of this reference to "any Italian property" in the Will of Commander Browne has complicated the administration of the Trust and the devolution of his estate.  The Representor has received Italian legal advice that the re-registration of the Italian Property would be assisted by this Court declaring that it is held for the benefit of Le Puy.

7.        The Representor has also been advised by its Italian legal advisors that on the death of Commander Browne, his interest in the Italian Property did not pass to Mrs Browne, by way of survivorship, but would pass to his heirs and in this case under the terms of his Will.

8.        Regent and Commander Browne's said sons all agree that the estate of Commander Browne has no beneficial interest in the Italian Property and to the extent that legal title to one half may now vest, as a matter of Italian law, in Regent as executor, Regent is bound by the terms of the Nominee Agreement.

9.        Mrs Browne has written to Le Puy supporting the application to this Court for a declaration and requesting that it extend to her interest in the Italian Property held by her as nominee.

10.      The Court has been referred to the case of In the matter of a Curatorship X [2002] JLR 259 which held that the Court had jurisdiction to make a declaratory judgment on any live issue before it, namely any issue with a sufficient degree of reality and immediacy to have a practical bearing upon the resolution of an actual dispute or a dispute likely to arise in the future.

11.      Regent is the executor of the Will of Commander Browne and it is against Regent that Le Puy as, beneficial owner, would be required to enforce its rights under the Nominee Agreement.  Le Puy wishes to have the Italian Property registered in Italy in its name.  The issue of whether the Italian Property forms part of the estate of Commander Browne is a live issue and a declaration in the form sought would have a practical bearing on a dispute which would be likely to arise as between Le Puy and Regent if the re-registration of the property into the name of Le Puy cannot be effected.

12.      We are satisfied therefore that the jurisdiction of this Court is properly invoked.  Mrs Browne is not in this jurisdiction and ordinarily Le Puy would be expected to enforce any rights it may have against her under the Nominee Agreement in England where she resides.  However, she has expressly requested that the Court's declaration should extend to her interest in the Italian Property and it is convenient and expedient for us to agree to this.

13.      The Court has been provided with an opinion from Speechly Bircham, English solicitors, dated 8^th May, 2007 confirming that the Nominee Agreement is enforceable as a matter of English law both as against Mrs Browne and the estate of Commander Browne.

14.      The Court therefore declares that the Italian Property is held by Regent and Mrs Browne for the benefit of Le Puy pursuant to the Nominee Agreement. 

Authorities

In the matter of a Curatorship X [2002] JLR 259.