Jersey Unreported Judgments

Probate - application for directions concerning the executor

[2018]JRC030A

Royal Court

(Probate)

5 February 2018

Before     :

Sir William Bailhache, Bailiff, and Jurats Ramsden and Dulake

REPRESENTATION OF THE JUDICIAL GREFFIER (REGISTRAR OF PROBATE)

IN THE MATTER OF THE WILL OF X (DECEASED)

Advocate S. A. Meiklejohn for the Representor.

Advocate J. Harvey-Hills for the Respondent.

judgment

the bailiff:

1.        We are dealing here with a representation from the Judicial Greffier as Registrar of Probate in relation to the estate of X who died domiciled in Country A on 14^th September, 2016, leaving six surviving children including the respondent.  By her will she appointed the respondent as the sole executor and she also gave her residuary estate entirely to him so he is the sole beneficiary.  The will may not be valid under Country A law but the Greffier, the Registrar, has discretion to admit it to Probate as it complies with the formalities in Jersey. 

2.        It is said in the representation the only asset in the deceased estate is a debt owed to her by a trust, the A Trust.  The face value of the debt is £86 million, although the information that she has is that the value of the now insolvent trust is something in the order of £6 million.

3.        The Respondent has previously declared bankrupt in England and Wales and he was discharged from bankruptcy in 2011.  The court has been shown a copy of the bankruptcy order which was dated 30^th March, 2010, and also a copy of the discharge dated 14^th April, 2011, and the Registrar's application comes about because of that bankruptcy.  The Probate Division has had a long standing policy of not allowing a discharged bankrupt to be appointed as the executor of an estate, and so the application of the Respondent has so far been rejected and the matter has been referred to us by the Probate Registrar under Article 6(9) of the Probate (Jersey) Law 1998 and we say at once that she was absolutely right to refer it to us. 

4.        The reasons for this policy are unknown.  It may have emerged prior to the concept of a discharge of a bankrupt being possible, and I say "prior" meaning prior to the Bankruptcy (Désastre)(Jersey) Law 1990 (the "Désastre Law") although some of the older cases do point to the Passation des Causes as being the opportunity to create finality for claims against the debtor, and that was how the procedure of a désastre grew into Jersey law.

5.        We think that the policy which has been applied to date should be qualified and not absolute.  There are several reasons for this.  The first is the terms of the Désastre Law as currently exist.  Under Article 24 of that law is the provision that "A person to whom this Article applies shall not hold a public or private office" and a private office is defined as meaning "the office of curator, director of a company, "electeur", liquidator of a company, general partner of an incorporated limited partnership, trustee, "tuteur"," but then importantly "executor or administrator of a deceased person's estate".

6.        Now it certainly could be argued that on the application of the Latin tag inclusio unius exclusio alterius the fact that the Désastre Law expressly provides that a person who is en désastre is not able to be appointed executor or administrator of a deceased person's estate suggests that if they are no longer en désastre which is the effect of the discharge under the Désastre Law then it would follow that the ban on their holding that appointment no longer holds good and indeed we think that is the proper approach to take. 

7.        That is not to say that the question of bankruptcy or not in the case of a discharged bankrupt is never going to be relevant.  The nature of the office of executor or administrator is that such a person is holding assets upon trust either to administer the estate of the deceased in accordance with the will or to ensure that those entitled on intestacy receive their proper entitlement.  And so the court's general supervisory power over the appointment of trustees seems to us to be one which would be capable of being applied to applications for the grant of probate or administration. 

8.        It is probable that where a bankrupt has been discharged there will be few occasions where the Probate Registrar will even know that that is the case, but one has to have in mind that there may be other occasions where those who are entitled to the estate either under the will or under intestacy draw it to the attention of the Registrar and wish to contend that the executor nominate is not a fit and proper person to hold that position, in which case those are representations which it seems to us could properly be made.  What the Registrar will make of them will probably be to refer such a case to the court under Article 6(9) of the Probate Law, and in those cases the factors which the court is likely to take into account without limitation, there may be others, will be the length of time the bankruptcy continued; how long ago the discharge took place; whether there is any evidence of mal-practice leading up to the bankruptcy or during the bankruptcy; how much was involved.

9.        In this particular case as we have said the Respondent was discharged from bankruptcy on 14^th April, 2011, so that was nearly seven years ago.  There are strong reasons on the facts why he should be entitled to a grant here, he is the sole executor, he is the sole beneficiary, he asserts - and we have no reason to doubt him - that he cannot find a professional executor to do the job for him.  The estate of his late mother is currently involved in litigation and should be represented.  These are all very positive reasons why it would seem apparent that he should be granted probate.

10.      Having considered all these feature the court resolves to direct the Registrar to proceed with admitting the will to Probate with the Respondent as the executor, completing the formalities in the usual way that need to be completed for the obtaining of Grant of Probate.

Authorities

Probate (Jersey) Law 1998. 

Bankruptcy (Désastre)(Jersey) Law 1990