In the matter of the representations of Vera Caroline Le Cras and in the matter of the estate of Arnold Gottfried Resch (deceased)
The Bailiff (sitting alone) was recently asked to consider an application from Mrs Le Cras for a ruling from the Court as to the interpretation of her late Father's two Wills.
The testator (Arnold Resch) died on 20th February 1942 having made two Wills (one dealing with his personal estate and the other his real estate outside Jersey). The residuary provisions were more or less identical but required a ruling from the Court as to the definition of issue and in particular who would inherit following the death of Mrs Le Cras.
The Wills had followed the Jersey légitime principles by providing outright gifts of one third of the estate to the testator's widow and one third to his child or children. The final third was placed in trust; the income of which was split, half being paid to his widow and half to his child or children. From the death of the widow, the income would be paid to such children of the testator as were living, in equal shares, and on their deaths the residuary estate was to be held "in trust for the issue of such deceased child of mine". There were also longstop provisions in favour of remoter family members.
At the time of the application the Resch family tree was as follows (click here to view).
Mrs Le Cras was accordingly the sole life tenant of both Wills, being the only child of the testator. Her application was to establish how the residuary estate should devolve on her death. The uncertainty arose because of the use of the word "issue" in respect of the residuary bequests. In the context of the Wills, did it mean the children or wider descendants? If it did mean the latter, should the distribution be made par souche (per stirpes) or par tête (per capita)?
Interpretation of "issue"
As there was no Jersey authority on this subject the Bailiff looked to English law to see if it provided a solution. It was clear in English law that a bequest to issue was, prima facie, to descendants of all degrees, unless the context and the surrounding circumstances were such that issue meant to mean children. The Bailiff reviewed the use of the word "issue" in the Will and also looked at usage in Jersey.
There were numerous references to "child" or "children" in the Will and therefore it was reasonable to conclude that the use of the word "issue" denoted a different context (or child would have been used). The Bailiff went on to consider the effect if the word "child" and "issue" were analogous in respect of various provisions in the Will. For example, if "issue" were to mean child, then if C and A had both predeceased their mother the residuary estate would pass to the remoter family members under the longstop provisions notwithstanding that C had children of her own. He found it would be hard to credit that it was the testator's intention that his collateral relatives would inherit ahead of his lineal descendants.
The Bailiff also considered the provisions of Article 7(2) of the Wills and Successions (Jersey) Law 1993 and decided that in that Article issue clearly meant issue of all degrees. It is clear that if an heir had predeceased, his or her children would be able to claim légitime in place of their deceased parent, therefore issue must be of all degrees.
For these reasons the Bailiff concluded that "issue" referred to the direct descendants of the testator through all degrees.
Par Souche or Par Tête?
Having reached the above conclusion in respect of the interpretation of issue the Bailiff then turned his attention as to whether the division of the estate should be par souche or par tête. If the division was to be par souche then the estate would be divided equally between C and A. If par tête, it would be divided into four, with C, A and each of C's children taking a quarter each, the result being that C's branch of the family would receive three quarters of the estate.
Again there was no Jersey authority on which the Bailiff could rely but unfortunately there were no clear English principles either. The case law in England very much followed the premise that each case should be judged on its own merits and facts.
The Bailiff therefore had to consider the specific circumstances of the Wills and concluded that the distribution should be par souche. His reasoning was as follows:
- The Wills did not contain any specific provision that any distribution should be "equally for the issue" the Bailiff felt this was more appropriate to a par souche distribution.
- There were a number of indicators to the effect that the testator envisaged a par souche distribution:
- there were references to the Jersey law principle of légitime and this provides for a par souche distribution;
- after the death of his widow the estate was to be divided into the number of shares that there were children, with further provision that if a child died without issue that child's share would accrue in equal shares for the benefit of the other children, more suggestive of a par souche distribution; and
- the Wills contained provision that a deceased child's share would pass to that child's issue, i.e. one share per child which would pass down the chain to that child's descendants, again a clear par souche distribution.
The Bailiff, having considered the context and circumstances of the Wills, was clear that the testator could not have intended anything but a par souche distribution. Ultimately then, on the death of Mrs Le Cras, the remaining residuary estate would be divided equally between C and A.
This case provides a welcome Jersey authority on the matter of what is meant by "issue" and whether distribution was to be par souche or par tête where the Will is silent. Practitioners must however view the decision with caution as it is clear from the judgment that each case must be decided on its own facts.
It is interesting to note that, in this case, Mrs Le Cras, C and A had all agreed to accept the decision of the Bailiff. It is possible that there may have been a different conclusion if there was legal representation petitioning the Bailiff to consider the merits of a different interpretation.