In the matter of The Estate of Edward Hamilton Stirling (deceased), Royal Court Reported Judgment, 18 November 2014

Facts of the Case

The facts of this case are relatively simple, if not slightly unusual, and concern the estate of the late Edward Hamilton Stirling (Mr Hamilton) who died on 14 December 1873, domiciled in Jersey.

After many years working for the Honourable East India Company’s Civil Service, and travelling the globe, Mr Hamilton moved to Jersey in 1846 and built the property known as Stirling Castle, Mont au Prêtre in the Parish of St Helier. Mr Stirling moved to Jersey as a bachelor and, following a short-lived marriage and much publicised divorce (which were halted on his wife’s death), he died in 1873 as a widower with no children.

Probate of Mr Hamilton’s Will was granted on 25 February 1874, to two local executors, and it is presumed that the administration of Mr Hamilton’s movable estate was completed at that time; his only immovable asset, Stirling Castle, having been transferred to his nephew during Mr Stirling’s lifetime.

Following investigations by an English company of heir hunters, some 140 years later, it transpired that at some point Mr Hamilton had purchased two plots of land in the Northern Territory of Australia. These plots of land had remained in Mr Hamilton’s name, as un-administered assets of his estate, and subsequently had been acquired by the Australian government by way of compulsory purchase. The net proceeds of sale (approximately £230,000 at current exchange rates) were now being held by the Public Trustee of the Northern Territory of Australia (the Public Trustee) on behalf of the beneficiaries of Mr Hamilton’s estate. However, the Public Trustee advised that it would not release the net proceeds of sale until it was in receipt of a Court order, issued by a Court in the same jurisdiction in which Mr Hamilton died domiciled, confirming who was entitled to collect in the assets and administer Mr Hamilton’s estate.

A Jersey based executor was therefore appointed on behalf of the potential beneficiaries of Mr Hamilton’s estate (numbering, at present, some 83) to apply for a grant of representation to collect in, administer and distribute Mr Hamilton’s Australian estate.

On application, the matter was referred by the Judicial Greffier to the Royal Court for directions as to whether, in spite of there being no estate in Jersey that required administration, the Court had jurisdiction to issue the required grant.

Relevant Principles

Although there is no Jersey authority on this point, under English law, section 2(1) of the Administration of Justice Act 1932 provides that:

“…the High Court shall have jurisdiction to make a grant of probate or administration in respect of a deceased person notwithstanding that the deceased person left no estate.”

This principle was considered in the English case of In the Estate of Wayland [1951] 2 All ER 1041, where the High Court held that it had jurisdiction to admit foreign Wills to probate (in this case a Belgian Will) in England albeit that the Will in question did not dispose of English property. The Court’s view in reaching its decision was that, having considered the facts of the case, the only way that an injustice to the estate could have been was for the Court to permit the admittance of the Will to probate.

Article 2(1)(b) of the Probate (Jersey) Law 1998 follows closely the provisions of section 2(1) of the Administration of Justice Act 1932 (as contained in section 25 of the Senior Courts Act 1981), and provides that:

“The Court shall have all jurisdiction in relation to probates and administrations as it had immediately before this Law came into force, that is to say, jurisdiction - …to hear and determine all questions relating to a testamentary cause or matter.”

In Mr Stirling’s case, the issuing of a grant of representation pursuant to article 2(1)(b) would therefore be the only way to avert an “injustice” to the estate, by allowing the proceeds of the estate to be made available to the estate’s beneficiaries.

The Decision

As Mr Hamilton’s Will only dealt with his movable estate, and not any immovable assets (either in Jersey or elsewhere), the Will did not cover the two plots of land in Australia which had been owned by Mr Hamilton at the date of his death. Therefore, it would appear that he died intestate in respect of his Australian estate. Although domiciled in Jersey at his death, as the immovable assets in question were situated in Australia, the distribution of these assets would therefore follow Australian law (lex situs) and the local rules of intestacy therefore applied.

Accordingly, the Royal Court ordered that the Judicial Greffier issue a grant of representation to the Jersey executor in respect of the remaining un-administered estate. 

Conclusion

Although a rather unusual case, its importance should not be underestimated when considering the administration of foreign estates of Jersey domiciled individuals.

Where required, the Royal Court has now affirmed that it is willing to direct the issuing of a grant of representation by the Judicial Greffier in instances where, although there is no Jersey estate requiring administration, the administration of the deceased’s estate in other jurisdictions would be adversely affected by a decision to refuse the issuing of the grant.