Jersey Unreported Judgments

[2008]JRC221

royal court

(Samedi Division)

12^th December 2008

Before     :

F. C. Hamon, O.B.E., Commissioner, and Jurats Tibbo and Le Cornu.

IN THE MATTER OF THE WILL OF IMMOVABLE ESTATE OF GWYNNETH LINDA SPARKE HUELIN, NEE DAVIES

AND IN THE MATTER OF A REPRESENTATION OF ANTONY LEWIS TISDALL McCAMMON.

Advocate C. G. Parslow for the Representor.

judgment

the commissioner:

1.        The Court has before it the representation of Antony Lewis Tisdall McCammon, one of the two sons of the late Gwynneth Huelin by her first marriage.  The Testator made a Will with four Codicils; only the provisions of clause two of her will dated 25^th October, 1988, affects this issue.  The other devisee named in the will, James McCammon, is not affected in any way and we have a letter signed by him on 11^th December, to that effect.  Rupert McCammon is the son of David McCammon the brother of Antony.  Now we are asked to alter the will so that the devisee gives various properties under clause 2. of the will of Real Estate but instead of going to Antony they shall go to Le Ponterrin Limited.  Article 25 of the Probate (Jersey) Law 1998 reads:-

"(1)     subject to paragraph 2. the Court may, by Order made with the considerable parties who in its opinion should be consulted and having regard only to the interest of the beneficiaries or heirs interested insomuch of the estate as is effected by the Order 

(a)        vary any disposition (whether effected by will, under the law of intestacy or otherwise) of the movable estate of the deceased person;

(b)         provide that any variation made under sub-paragraph (a) shall have effect as if it were a disposition effected by the will of the deceased person or under the law of intestacy, as the case may be; and

(c)        direct to whom and in what manner the movable estate of the deceased person shall be distributed.

(2)        An order for a variation under paragraph (1)(a) may only be made within 2 years after the death of the deceased person."

2.        Now that is a statutory provision but the provisions of the Loi (1851) sur les Testaments d'Immeubles is silent on this point. While we are satisfied and we are grateful to the representor that there is no breach of the Housing nor the Statutory Fees Laws, and while this Court can always rectify a will, we cannot without statutory authority re-write a will and it is for that reasons that we have to refuse the application.

Authorities

Probate (Jersey) Law 1998.

Loi (1851) sur les Testaments d'Immeubles.