Jersey Unreported Judgments

Estate

[2022]JRC190

Royal Court

(Samedi)

11 August 2022

Before     :

Sir Timothy Le Cocq, Bailiff, and Jurats Ramsden and Hughes

 

IN THE MATTER OF THE REPRESENTATION OF ANTHONY PAUL DEL AMO ON BEHALF OF LE GALLAIS AND LUCE EXECUTORS LIMITED

IN THE ESTATE OF THE LATE JOHN HEDLEY LE BROCQ

Advocate C. B. Austin for the Representor.

judgment

the bailiff:

1.        This is an application by Representation of Le Gallais & Luce Executors Limited ("the Executor") who is the Executor of the Will of moveable estate made on 26^th November 2020 of the late Mr John Hedley Le Brocq ("the Deceased").  The Representation is brought by the Executor to determine the validity of the said Will and, in addition, to determine the validity of the Deceased's Will of immoveable estate also dated 26^th November 2020 (jointly, the Wills).

2.        The central issue before the Court is the question as whether the Deceased manifested an intention to and did thereby revoke the Wills when he instructed his solicitor, Mr Robin Edward Troy ("Mr Troy") to make new wills.

Background

3.        The Deceased died on 30^th November 2021.  As stated, he had on 26^th November 2020 executed Wills of immoveable estate and moveable estate. 

4.        Prior to his death the Deceased had contacted Mr Troy to discuss his immoveable property and various boundary issues in connection therewith.  Mr Troy attended the Deceased at his home on 13^th September 2021, and as a result of those discussions concerning the immoveable property, Mr Troy suggested to the Deceased that he may need to revisit his Wills.  Mr Troy made handwritten notes in that regard.

5.        On his return to the office Mr Troy provided his notes to a clerk in his office to prepare draft wills.  Those notes were returned by the clerk to Mr Troy on the basis that they were not clear. 

6.        On 4^th November 2021, Mr Troy further attended the Deceased to discuss boundaries and also to discuss further changes that the Deceased wished to make to his Wills.  During the course of those discussions the Deceased provided instructions with regard to a pecuniary gift to Ms Carla Cabral, his housekeeper that was only to be effective if she remained in his employment at the time of his death.

7.        On 19^th November 2021 Mr Troy provided to the clerk an email detailing new will instructions for the Deceased and on the same day the clerk prepared draft Wills and a covering letter to go to the Deceased and provided these to Mr Troy for his review.  Mr Troy was on annual leave returning to the office on 1^st December 2021.  As stated, the Deceased died on 30 November 2021.  He had at that time neither signed nor even seen the new draft wills. 

8.        In considering the Deceased's intentions, it is of relevance to consider the difference between his existing Wills and the draft new wills of moveable and immoveable estate prepared for him. 

9.        With regards to the Wills of personal or moveable estate and the draft wills the differences are as follows:

(i)        In Clause 5 of the existing Will various pecuniary legacies are left to individuals on the basis that the Deceased had sold a property known as "Le Jardin Potager et Jardin a Pommiers et Le Clos ou Jardin Fruitier" together with the Old Stables.  The Old Stables had been sold prior to the Deceased's death and under the Will of Moveable Estate, £100,000 was bequeathed to each of his son Mark John Le Brocq (Mark), his grandson Joshua Le Brocq (Joshua), his grandson Luke Le Brocq (Luke) and his housekeeper Ms Carla Cabral. 

(ii)       In Clause 6 of his existing Will the Deceased left the rest and residue of his personal or moveable property to his four children in equal shares namely Mark, Karen Jane le Brocq (Karen), Suzannah Le Brocq (Suzannah) and Kimberley Helen Le Brocq (Kimberley).

(iii)      Under the draft unsigned Will of moveable property the only pecuniary legacy is to the Deceased's housekeeper Carla Cabral in the sum of £100,000 on condition that she remained in his employment at the time of his death.  She was indeed still in employment by the Deceased at the time of his death and therefore this condition would have been satisfied.  There were no other pecuniary legacies. 

(iv)      By the terms of Clause 6 of the draft unsigned Will of moveable estate the Deceased left the rest and residue to his four children Mark, Karen, Suzannah and Kimberley together with his two grandsons Joshua and Luke.

10.      With regard to the Will of immoveable estate the existing Will provides as follows:

(i)        In Clause 2 the property "Champs Vert" together with land is devised to Kimberley and Suzannah.

(ii)       Clauses 3, 4 and 5 are of no effect as Mr Le Brocq did not at the time own the Old Stables to which the Will made reference.

(iii)      In Clause 6, the land owned as "Le Clos de L'Ouest" and the remainder of other land is devised to Karen and Joshua on condition that Karen paid the sum of £150,000 to the Executor of the Will of Personal Estate to be distributed as part of the personal estate within six months of the date of death.

(iv)      Clause 8 of the will devises the remainder of the real or immoveable estate to his four children Mark, Karen, Suzanna and Kimberley in equal shares.

(v)       Clause 2 of the draft unsigned Will of immoveable estate provides that Ms Carla Cabral was to receive the enjoyment of "Champs Verte" for a period of two years from the date of death.

(vi)      Clause 3 of the draft unsigned Will of immoveable estate provides that the reversionary ownership of "Champs Verte" together with the remainder of the Deceased's immoveable estate was devised to his four children Mark, Karen, Suzanna and Kimberley together with his two grandsons Joshua and Luke in equal shares.

11.      The draft Wills of moveable and immoveable estate contained the standard revocation clauses which, if effective, would have revoked the Wills.  The question before us, accordingly, is are those revocation clauses effective?

12.      The submissions made to us on behalf of the Executor is that it is clear that the Deceased had manifested an intention to revoke his earlier Wills and to create new Wills.  The best outcome would be a declaration from the Court to that effect and it was urged on us, that the revocation of the earlier wills was effective and, accordingly, the Deceased died intestate.

13.      This may seem a strange submission, however, it is important to note the context.  The Executor's application and indeed preferred outcome has the support of all of the beneficiaries including Ms Carla Cabral.  A draft agreement had been prepared between them which has been signed in counterpart which disposes of the assets that form both the moveable and immoveable estate and distributes that between the beneficiaries and devisees.  We have no reason to believe, on the evidence before us, that all of the beneficiaries (who are adults) have not had the opportunity of both considering the disposal urged upon us by the Executor and the opportunity to take legal advice and whereas the final disposal of the estate of the Deceased neither accords with the existing Wills (if they are not revoked) nor the new draft wills, then nonetheless there appears to be a significant measure of accord between the beneficiaries.  No one sought to appear before us although they have been fully apprised of the nature of the application.

14.      We note, however, that no argument has been advanced to us on the principles of Saunders v Vautier [1841] EWHC J82 and we have been asked to consider this matter on the usual principles of construction relating to Wills and their revocation.

15.      We had evidence before us in the form of an affidavit from Mr Troy dated 21^st March 2022.  Mr Troy confirms that during his discussions with the Deceased on 13^th September 2021 and 4^th November 2021, Mr Troy's understanding was that the Deceased wished to vary his Wills of moveable and immoveable estate to give effect to the changes he had instructed Mr Troy that he wished to make.  Mr Troy did not, however, expressly discuss with the Deceased whether he wished to revoke his existing Wills nor did he discuss with him whether such revocation should take place immediately or only upon the execution of by him of new Wills.  To Mr Troy there appeared to be no immediate urgency for him to make such changes as the Deceased was showing no signs of terminal ill health.

16.      The impression Mr Troy had formed was that the Deceased's expectation was that the revocation of the clauses from his existing Wills and the new bequest were to take place at the same time.  He was particularly anxious that a legacy of £100,000 was to be provided to Carla Cabral provided she remained in employment with him at the date of his death.  He was also clear that the Deceased wished to give Ms Carla Cabral life enjoyment of "Champs Verte" for two years.  Mr Troy formed the view that the Deceased would have been particularly concerned if there were to be no bequests to Ms Cabral.

17.      Mr Troy filed a second affidavit dated 6^th April 2022, following the first presentation of his representation before the Court.  In that affidavit he confirmed that he had been informed that all of the beneficiaries of the original wills, together with Ms Carla Cabral had been fully notified of the representation and indeed had executed an agreement.  For the record we should reflect that we have seen a copy of the agreement and it was signed in counterpart by Mark, Karen, Kimberley, Joshua, Luke and Ms Carla Cabral.  We were informed that Suzannah had agreed.  In essence the agreement provides that the moveable and immoveable estate of the Deceased will be divided into equal shares between Mark, Karen, Suzannah and Kimberley and that Mark, from his share will hold on trust for the benefit of Luke and Joshua £100,000 each.  Ms Carla Cabral will continue to reside in the property for six months from Mr. Le Brocq's death and the children shall pay out of their respective shares the sum of £25,000 each making a total of £100,000 to Ms Carla Cabral.

The Law

18.      Article 30 of the Loi (1851) Sur Les Testaments D'Immeubles provides that the Laws and customs of this island concerning wills of moveable property provided that they are not contrary to the provisions of the statute shall be applicable also to wills of immoveable property. 

19.      This was confirmed in effect in the case of in the Matter of the Will of Beaugie [1970] JJ 1579 in which it was stated:

"Neither in the Law of 1851 nor in the subsequent amending legislation is there any reference to the formalities required to revoke a Will of realty.  However, Article 30 of the Law of 1851 provides -

"Nos Lois et coutumes touchant les Tesamens de bien-meubles, en ce qu'elles ne sont point contraries aux dispositions de ce Règlement, seront applicables aux  Testamens d'immedubles".

We conclude therefore, and it is not in dispute, that the method which is legally effective to revoke a Will of personalty is equally effective in law to revoke a Will of realty.  Basnage, Commentaires sur la Coutume de Normandie, 3^rd ed, vol 2, art. 412, at 171 (1709), says -

".... La revocation se peut faire par le témoignage d'une volonté contraire;"  Revocation requires an act of revocation, accompanied by the intention to revoke ("amius revocandi").  Thus, "prima facie" any act evidencing a intention to revoke is sufficient, for example, the destruction of a Will with the intention of revoking it, a simple declaration that the Will is revoked, and the making of a subsequent testamentary instrument, the provisions of which are wholly or in part inconsistent with the provisions of the earlier instrument.  Those principles apply equally to the revocation of Will of realty." [emphasis added]."

20.      In the case of Re Vickers [2001] JLR 712 the Court cited with approval the learned text Williams on Wills, 7^th edition as follows:

"The intention of the testator is the sold guide as to whether words amount to a revocation of a will and revocation is not proved by mere accidental words or by inference or by the form of the testamentary document or by implication where the circumstances to not accord with such an intention."

It continues (op.cit. at 167)

"An earlier will is revoked by an express clause of revocation in a subsequent will or codicil and no particular form of words is necessary for this purpose.  An express clause of revocation is not essential but, if inserted in general terms, may operate to revoke all testamentary instruments previously executed including testamentary appointments.  Such a clause is not, however, conclusive, for it may be shown that it was inserted by mistake and without the approval of the testator or the two wills may be dealing with property in different jurisdictions."

It is the last point that I regard as crucial."

21.      It is apparent that Mr Troy's notes of his meeting of 13^th September 2021, records, "codicil wants to change his will".  This would, it is argued, and we agree, be consistent with changes to the will rather than a complete revocation of them.  It was Mr Troy who elected to prepare wills as opposed to preparing codicils as Mr Troy held the view that this was the most cost effective way of dealing with the changes requested.  It is impossible, therefore, to deduce as such whether or not the Deceased wished in any event to revoke his existing Wills.  If anything, the suggestion is otherwise.

22.      In In the Matter of the Representation of Hawksford Executors Ltd [2013] (2) JRC 357 the Court followed the English approach of looking at the surrounding circumstances to determine the intention of the testator.  At paragraph 35 et seq it said:

"35.  In considering the intention of the testator, it is permissible under English law to consider declarations which he made, even though they do not form part of the will (Clarke v Scripps (3)).  The whole or part of a revocation clause in a will is to be omitted from probate if there is no intention to revoke.  This is illustrated in  In re Morris (7) and a further example is provided by in re Phelan (9).  In re Morris, it was held that even when it was proved that a will had been read over to or by a capable testator and he then executed it, prima facie, the inference would be that the testator knew and approved the contents, but that the court was not precluded from considering all the evidence to arrive at the truth, even if fraud was not suggested, and it was only a case of a simple mistake.  Although the testatrix in that case had capacity, did read the codicil which included the revocation clause and did duly execute it, it was clear from the evidence that she did not in fact know and approve of the contents.  The court was able to get nearest to giving effect to the testatrix's dispositive intentions by admitting the codicil to probate with the omission of part of the revocation clause which referred to that part of the previous will which was not intended to be revoked.

36.  In In re Phelan, the deceased made a will leaving all his property to the people with whom he lodged.  He then appears to have been advised that separate holdings of shares had to be dealt with  by separate wills.  He therefore acquired three wills and left each of his three blocks of shares to his landlord and landlady.  The wills were all executed on the same day.  However, the forms contained revocation clauses purporting to revoke all previous wills.  It was held that the surrounding facts showed that the deceased did not know and approve of the contents of the wills so far as they related to revocation and the three wills were therefore admitted to probate with the revocation clauses omitted.

37.  In re Phelan (9) was applied by this court in the case of In re Vickers (née Francis) (10).  The testatrix had property in a number of jurisdictions.  Although she had resided in Portugal for a number of years, her domicile was England.  She made a will, in English form, which was expressed to revoke all previous wills "except in so far as they relate to property situate in Portugal and New Zealand."  That will disposed of her property in all the rest of the world, including England and Jersey.  She subsequently made a will to deal with her property situate in New Zealand.  The "New Zealand will" stated that it revoked "all earlier wills made by me."  The question before this court was whether the revocation in the New Zealand will revoked the earlier English form will."

23.      In the circumstances, it is also of significance to consider the matter of dependant relative revocation.  This was considered in Beaugie (above) where the Court stated:

"We agree with the words of Langton J. in In re Brown (already cited) as page 177 - "counsel for the respondent has pointed out very rightly and justly that the mere fact that the whole estate is not disposed of is no reason for ignoring a will, and there is authority for the proposition that, where a will contains a clear revocatory clause and yet does not dispose of the whole estate, nevertheless the court may admit that will to probate as a good and complete testamentary disposition, thereby leaving the testator to a certain extent intestate.  As I read the cases, however, the duty of the court is, if it be in any way possible, to collect and give effect to the manifest intentions of the testator.  In doing so, the court is restrained from any efforts to make a new will for the testator where he has not made it himself.  The court can only give effect to what appear to be clear intentions, and to admit to probate such documents as will give effect to those intentions."

From the authorities which we have cited, it appears to us that when asked to apply the doctrine or dependant relative revocation to a case where there is a subsequent testamentary instrument expressly revoking an earlier instrument, the Court should have regard to the following principles:

1.       It is the duty of the Court to endeavour to collect and give effect to the manifest intentions of the testator, but it is restrained from any efforts to make a new or different Will for the testator where he has not made it himself.

2.       The presence of express words of revocation case a heavy burden on those who allege that those words were not intended to be, as they appear to be,  absolute, but only conditional ; nevertheless, the question remains one of intention.

3.       In seeking the intention of the testator, the Court has to ask whether it was the intention of the testator to revoke the earlier testamentary instrument in any event, or to do so only on the condition that his dispositions by a subsequent instrument would be effective.

4.       The doctrine is not confined to cases where the subsequent instrument was invalid.

5.       It is permissible to compare the earlier and later instruments to endeavour to ascertain the intentions of the testator."

24.      It is argued that it is possible to consider the bequests contained in the original wills as revoked without considering the entirety of the wills revoked.  The Executor argues that that would not meet the totality of the Deceased's expressed intentions because he intended to make other valid instruments to give effect to alternative intended bequests. 

Conclusion

25.      This is not a straightforward matter.  It is clear from the authorities that the Court's obligation is to seek anxiously for the testamentary intention of the Deceased.  It is clear that had the Deceased been in a position to execute the new wills prepared in draft for him by Mr Troy then he would have revoked the earlier Wills.  Would the testator have preferred to be intestate rather than allow his original Wills to survive in the event that he had pre-deceased as he did, the execution of the new Wills?  In our view it is impossible for us to say that he would and indeed the evidence points to the very strong likelihood that he would not.  He would not have wished to be intestate.  Had he been so he would have been in a no position to advantage Ms Carla Cabral which seems to be his aim. 

26.      We are entirely conscious that we have heard no contrary argument either in Law or in fact to that presented to us by the Executor.  This is because none of the interested parties are in disagreement nor do they wish to contest any aspect of the Representation although they have had the opportunity of doing so.

27.      It is to our mind not satisfactory that we have not been addressed on the principles of Saunders v Vautier which seem to us might be apt for dealing with this situation.  We raise the matter with Counsel for the Representor but, having taken instructions, it was clear that there were concerns about revisiting the matter with the parties.

28.      We fully accept that, all of the parties being in agreement, there is no reason why the estate of the Deceased could not be disposed of and divided in accordance with the agreement that we have seen in draft.  The agreement is, however, expressly dependent upon the Court declaring that the Wills are revoked and this to us is highly unsatisfactory.  It is asking the Court to make a deduction from the facts to a legal effect simply because all parties want to achieve the result.  In our view the Court should not and cannot do that. 

29.      Had we been asked to consider whether the wills may be varied generally to account for the principles in Saunders v Vautier to give effect to the underlying agreement we may possibly have been able to look upon that favourably.  Naturally we cannot say that with any certainty.

30.      However, on the facts before us, we cannot say that the Deceased intended to revoke his earlier wills.  At this stage we are not considering whether to give effect to an agreement but whether what is we are told is the necessary predicate to the agreement, namely the invalidity of the wills, has been established. 

31.      With regret we cannot say that it has and the Representation is dismissed.  The Wills remain valid.

Authorities

Saunders v Vautier [1841] EWHC J82. 

Loi (1851) Sur Les Testaments D'Immeubles. 

Matter of the Will of Beaugie [1970] JJ 1579. 

Re Vickers [2001] JLR 712. 

Williams on Wills, 7^th edition. 

In the Matter of the Representation of Hawksford Executors Ltd [2013] (2) JRC 357.