Jersey Unreported Judgments

[2008]JRC213

royal court

(Samedi Division)

10^th December 2008

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Tibbo and King.

 

IN THE MATTER OF THE ESTATE OF HOWARD JOHN REID DECEASED

Advocate M. R. Renouf for the Representor.

The other parties did not appear and were not represented.

judgment

the deputy bailiff:

1.        The Court is sitting to consider a representation brought by Dr Simon Reid in his capacity as one of the executors named in the will of the late Howard John Reid ("the deceased").  The representor is the nephew of the deceased.  The representation raises a number of issues.  The Court announced its decision at the conclusion of the hearing on 8^th December, and now gives its reasons.

Background

2.        The deceased died in South Africa on 31^st July, 2005.  He had lived there for many years.  He had been married to Joan Pamela Reid ("Mrs Reid") but they had been divorced.  One son, Shaun Reid, had been born during the marriage but he died not long after the deceased on 1^st January, 2006. 

3.        At the date of his death the deceased held a bank account in Jersey which now contains the sum of £147,000.  There is accordingly the need for a grant of probate to be taken out in Jersey. 

4.        The deceased left a will dated 30^th August, 2000, dealing solely with his assets situated in South Africa.  We do not need to consider that aspect of matters however.  We are concerned with two other wills which he made, both of them in homemade form. 

5.        The first of these ("the First Will") was duly executed by the deceased in appropriate form with two witnesses on 27^th July, 1998.  It appointed his brother Donald James Reid ("the brother") and the representor as his executors.  He then left his estate as follows:-

(i)        The brother - £10,000

(ii)       The representor - £10,000

(iii)      Patrick Reid (brother of the representor)  - £10,000

(iv)      Mrs Reid - £2,000

(v)       Jim Davies - £500

(vi)      Josie Ingram (the residue of the estate)

6.        Following execution the original will was sent to the Probate Division of the Principal Registry of the Family Division in London. 

7.        On 8^th November, 1999, the deceased executed a further will ("the Second Will").  Because it is that will which falls to be interpreted we set out the relevant parts of the will in full:-

"I hereby revoke all former Wills, Codicils and other Testamentary instruments made by me dealing with my United Kingdom estate & Effects and declare this to be my last Will.  I appoint MR DONALD JAMES REID of the Stone House, Redington, Shipston on Stour, Warwickshire, England and DR SIMON REID of the Red Barn, Bicton, Shrewsbury, Shropshire, England to be my Executors and direct that all my debts and funeral (cremation) expenses shall be paid as soon as convenient after my death.

I GIVE AND BEQUEATH UNTO

1.  Mr D J REID (brother) of the Stone House, Tredington, Shipston on Stour, Warwickshire, England

The sum of TWENTY ONE THOUSAND, FOUR HUNDRED POUNDS - £21,400. 

Should he pre-decease me then that sum to his wife BETTY REID of the same address.

2.  DR SIMON REID (nephew) of the Red Barn, Bicton, Shrewsbury, Shropshire, England

The sum of TWENTY ONE THOUSAND FOUR HUNDRED POUNDS - £21,400-00

3.  DR PATRICK REID (Nephew) OF 31 Burton Old Rd, West Lichfield, Staffs, UK

The sum of TWENTY ONE THOUSAND FOUR HUNDRED POUNDS - £21,400-00

4.  Mrs JOSIE INGRAM (friend) of Pear Tree Cottage, Little London, Albury Heath, Surrey (UK)

The sum of TWENTY ONE THOUSAND FOUR HUNDRED POUNDS - £21,400-00

5.  Mrs J P REID (ex-wife) of 18 Berrington Rd, Chipping Camden, Gloucestershire, UK

The sum of TWO THOUSAND POUNDS - £2,000-00

6.  Mr JIM DAVIES (friend) of 82 Spital Rd, Wirral, CH62, 2AJ (UK)

The sum of FIVE HUNDRED POUNDS - £500-00."

8.        On the face of the document it was duly signed by the deceased and attested by two witnesses.  The Court has also received an Affidavit from one of those witnesses, a Mr Colin Rowe confirming that the Second Will was duly executed and witnessed and that, following execution, he sent the original will to the Principal Registry of the Family Division in London.  He has exhibited a copy of the letter dated 9^th November, 1999, by which he did so.  Unfortunately, the original cannot be found at the Principal Registry and accordingly it is only a photocopy of the executed will which is available. 

9.        The representor, as the sole surviving named executor, now seeks to prove the photocopy of the Second Will in Jersey.  A number of issues arise as a result:-

(i)        In which country did the deceased die domiciled?  This determines which system of law governs the essential validity and interpretation of the Will. 

(ii)       Can a photocopy of the Second Will be proved in the absence of the original?

(iii)      Given the reference to the United Kingdom, does the Second Will cover the assets in Jersey? 

(iv)      As the value of the estate exceeds the aggregate value of the pecuniary legacies contained in the Second Will, what is the position in relation to the surplus?

10.      We shall take each of these points in turn.  Before doing so we would add that all those potentially interested under the estate have been convened to the proceedings.  Although some have responded by letter, none has appeared personally or by an advocate, apart from the representor. 

(i)      Country of domicile

11.      The deceased was born in England on 6^th February, 1922, of English parents.  He therefore had a domicile of origin in England and Wales.  He moved to South Africa when he was about 40 and lived there for over 40 years before his death.  However, he always said to the representor that he wished to return to live in England where he was born and where most of his family continued to be based.  The representor has exhibited to his Affidavit several pieces of correspondence from the deceased in which he wrote of his wish to return to the UK.  The representor asserts that at no time did the deceased ever say that he considered South Africa to be his permanent home or that he wished to remain there until his death.  It seems to have been his financial position which prevented him from returning to England. 

12.      We have to say that the evidence on the question of domicile is not very detailed but the representor contends for English domicile and no other party has contended to the contrary.  Given the absence of any evidence that the deceased formed an intention to settle permanently in South Africa, we find, on the evidence available to us, that the deceased did not lose his domicile of origin and accordingly remained domiciled in England and Wales at the date of his death.  It follows that it will be English law which is applicable to the essential validity and interpretation of the will. 

(ii)    Submission to probate of a photocopy

13.      On the basis of the evidence of Mr Rowe and the production of the photocopy of the second will to us coupled with the expert evidence as to the requirements of English law for the execution of a will by Mr David Rees, Chancery Counsel, we are satisfied that the deceased duly executed the Second Will in accordance with the requirements of English law on 8^th November, 1999, but that the original will has been mislaid.  We are satisfied that the photocopy is a genuine copy of the original will.  Re Hewett [1996] JLR 33 is authority for the proposition that, in such circumstances, a photocopy of the will can be proved and Mr Rees advises that English law is to like effect.  In the circumstances we are willing to admit the photocopy of the second will to probate in Jersey.

(iii)   Does the Second Will cover the estate in Jersey?

14.      The Second Will purports to deal only with 'My United Kingdom Estate and Effects'. Jersey, of course, does not as a matter of law form part of the United Kingdom.  However, that is not always understood by those not familiar with the constitutional niceties of the United Kingdom and its dependencies.  The Court is well aware that many people mistakenly think that the Channel Islands and the Isle of Man form part of the United Kingdom. 

15.      Mr Rees has advised that, under English law, extrinsic evidence of the testator's intention may be admitted to assist in the interpretation of a will if the language used in any part of the will is ambiguous on the face of it or insofar as evidence, other than evidence of the testator's intention, shows that the language used in any part of the will is ambiguous in the light of surrounding circumstances.   (See Section 21(1)(b) and (c) of the Administration of Justice Act 1982).   

16.      The evidence before the Court shows that, at the time of execution of the Second Will, there was only some £10,000 in the deceased's account with Halifax Plc in London but there was £78,000 in his account with the Halifax in Jersey.  Given that the bequests under the Second Will amounted in total to £88,100, they could only be satisfied by including the monies in the account in Jersey.  In our judgment this evidence shows that, in the light of the surrounding circumstances, the language used in the will, where it refers to the United Kingdom, is ambiguous.  It follows that extrinsic evidence of the testator's intention is therefore admissible. 

17.      In this case there are several pieces of evidence which suggest that the deceased intended the Second Will to cover his estate in Jersey when he referred to his 'United Kingdom' estate:-

(i)        There is a footnote to the First Will which refers to the fact that some of the assets are situated in Jersey.  Although the First Will was revoked by the Second Will, it is clear that the deceased intended the First Will to cover his Jersey estate.  Owing to the similarity between the two wills, it would be very surprising if he did not mean the Second Will also to cover his Jersey assets.

(ii)       In a letter dated 28^th March, 2000, to his brother, the deceased referred to the Second Will and described it as being his 'United Kingdom' will.  He went on to say that it covered 'the funds (UK)' and described these as 'offshore and London'.  This showed a clear intention on his part that the will should cover the assets in Jersey, which the evidence shows were his only material offshore assets.

(iii)      On 9^th July, 2000, the deceased signed a schedule detailing his assets which schedule was subsequently found amongst the papers of his brother.  Under the heading 'UK' there was included reference to the Halifax in Jersey.  This shows that the deceased considered his Halifax Jersey account to be a UK asset. 

18.      When this evidence of the testator's intention is added to that concerning the location of the assets at the time of the will, we have no hesitation in finding that the deceased intended the Second Will to cover his estate in Jersey and that, properly interpreted, the will had this effect.  In passing we note that this Court has held on other occasions that wills referring to United Kingdom assets can be interpreted to include estate in Jersey; see for example Re El-Kaisi Jersey Unreported 2000/241A.

 (iv)   What happens to the residue of the estate?

19.      The Second Will disposes in aggregate of £88,100.  At the time the deceased made the will in November 1999, this was almost exactly equal to the value of his estate situated outside South Africa.  The Court is content to assume that the deceased intended by the Second Will to dispose of the whole of such estate.  However, he made no provision for his residuary estate, unlike in the First Will.  He simply left six pecuniary legacies totalling £88,100. 

20.      In fact, his estate covered by the will is worth some £147,000.  Thus, on the face of it, the difference between the value of the net estate and sum of £88,100 falls into intestacy and is not disposed of by the will. 

21.      Mr Renouf submits that we should interpret the will in such a manner that any excess of his estate over the sum of £88,100 is divided equally between the four principal legatees, who were each left the sum of £21,400. 

22.      In our judgment, this is simply not possible.  It would not be interpreting the will; it would be re-writing it, which is something the Court is not entitled to do.  The will could not be clearer.  The four principal legatees are each left £21,400.  It is simply not possible to interpret this provision as being a bequest of one quarter of the residue of the estate.  We are content to assume that, if the possibility of his estate exceeding the sum of £88,100 had been pointed out to the deceased at the time he made his will, he would have left the residue between the four principal legatees.  But this does not assist.  He did not in fact do so and the Court cannot re-write his will to achieve what the deceased would or might have done had he thought about the point.

23.      In the circumstances we hold that the residue of the net estate after payment of the pecuniary legacies contained in the will, passes on intestacy and will therefore be taken by those entitled on intestacy under English law.

Summary

24.      In summary, we hold that:-

(i)        The deceased died domiciled in England Wales.

(ii)       The photocopy of the Second Will may be admitted to probate.

(iii)      The Second Will covers the estate situated in Jersey.

(iv)      The residue of the Jersey estate, after payment of the debts and pecuniary legacies, passes on intestacy to those entitled on intestacy under English law. 

25.      The costs of the representor in bringing these proceedings and generally shall be payable out of the residuary estate.

Authorities

Re Hewett [1996] JLR 33.

Administration of Justice Act 1982.

Re El-Kaisi Jersey Unreported 2000/241A.