Jersey Unreported Judgments

Striking out - application by the plaintiffs to strike out part of the defendant's answer

[2019]JRC158A

Royal Court

(Samedi)

15 August 2019

Before     :

Advocate Matthew John Thompson, Master of the Royal Court.

 

Advocate H. Sharp for the Plaintiffs.

Advocate S. A. Franckel for the Defendant.

CONTENTS

		Paras
1.	Introduction	1-7
2.	The parties' contentions	8-26
3.	Decision	27-53

judgment

the master:

Introduction

1.        This judgment contains my decision in respect of an application by the plaintiffs to strike out part of the defendant's answer alternatively for summary judgment that the same part of the answer does not give rise to a triable issue and can be determined as a short point of construction. 

2.        The application relates to the effect of the will of the late John Michael Finlay Best (the "testator").  The plaintiffs are the two sons of the testator by his first marriage.  The defendant is the widow of the testator by a second marriage. 

3.        The dispute between the parties concerned the testator's will of movable property dated 23^rd April, 2009, (the "Will").  Clause 5 of the Will provided as follows:-

"Subject to Clause 4 hereof, I give and bequeath the residue of my moveable estate as follows:-

a.        I bequeath one third thereof to my wife Diane Christine Best (née Porter) absolutely; and

b.        I bequeath the remaining two thirds thereof unto my wife the said Diane Christine Best (née Porter) and my sons Alexander Campbell Finlay Best and Orion George Finlay Best in equal shares absolutely."

4.        It was not in dispute between the parties that the terms of the Will, if they determined how the testator's estate was to be devolved, meant that the plaintiffs would recover four ninths or 44.5% with the defendant receiving five ninths or 55.5%. 

5.        What led to the application before me concerned the defendant's amended answer at paragraph 5 as follows:-

"Paragraph 3 of the Order of Justice is admitted, subject to the rights of the defendant to claim her legitime share, which would result in an entitlement at law to 66% of the moveable estate."

6.        In response to this paragraph the plaintiffs' reply pleaded as follows:-

"1. At paragraph 5 of the Answer, it is asserted that the defendant is "entitled at law" to 66% of the net moveable estate as per her "legitime share".  This assertion is contrary to legislation and obviously wrong.  Article 7(2)(b) of the Wills and Succession (Jersey) Law 1993 confirms, in the clearest language, that a spouse is entitled to the household effects and one third of the net remaining moveable estate  in the event that a person dies testate and is survived by both his spouse and issue.  The plaintiffs will seek summary judgment on this point if no properly pleaded case is put forward in the next 21 days."

7.        The defendant's reply to the answer and counterclaim at paragraph 3 pleaded in response to paragraph 1 as follows:-

"As to paragraph 1, Mrs Best asserts an entitlement to 66% of the estate of the late Michael Best.  That figure comprises her one third entitlement under the Will together with the one third partie disponible or freely disposable portion.  None of that is inconsistent with the Law of Jersey, whether under the provisions of the Wills and Succession (Jersey) Law 1993, legitime or otherwise."

The parties' contentions

8.        Advocate Sharp in relation to the defendant's pleaded case made the following contentions. 

9.        Firstly, he argued that paragraph 5 of the answer was unsustainable and should struck be out under Rule 6/13(a) of the Royal Court Rules 2004, as amended, as disclosing no reasonable cause of action.  This is because the defendant had received more than her legitime entitlement under Article 7(2)(b) of the Wills and Succession (Jersey) Law 1993 (the "Wills and Succession Law").  Article 7(2) provides:-

"7  (2) Subject to the provisions of Article 8, where a person dies testate as to movable estate and is survived by -

(b)       a spouse or civil partner and issue -

(i)        the surviving spouse or surviving civil partner, as the case may be, shall be entitled to claim as légitime the household effects and one-third of the rest of the net movable estate, and

(ii)       the issue shall be entitled to claim as légitime one-third of the rest of the net movable estate..."

10.      The plaintiffs' position was that, because the Will provided for the defendant to get more than her minimum entitlement under the Wills and Succession Law, the argument that she was entitled to her legitime was unsustainable.  The defendant's claim as pleaded at paragraph 5 of the answer was therefore wrong in law and should be struck out.  Alternatively as it was wrong in law no trial was required and summary judgment should be given in favour of the plaintiffs that their entitlement under the Will was as set out in clause 5. 

11.      In respect of paragraph 3 of the reply, Advocate Sharp argued this was inconsistent with the answer and did not make sense because it referred to the defendant being entitled to her one third entitlement under the Will together with the defendant being entitled to the freely disposable portion.  The reply did not make a reference to legitime.  There was no explanation as to why the defendant was entitled to one third under the Will and the freely disposable portion.  The Will itself was silent on the disposable third and simply distributed the whole of the estate. 

12.      In relation to the second affidavit of the defendant filed in opposition to the application, this asserted that the Will did not reflect the testator's clear wishes.  This assertion however was not raised on the pleadings. 

13.      Advocate Sharp accepted that if the testator had left one third to his client and two thirds to the defendant on the face of any Will, his clients could not challenge the provision of any such Will.  Likewise if a Will had left two thirds to the plaintiffs and one third to the defendant, he argued that any such provision could not be challenged either, because in either scenario both had received their legitime entitlement. 

14.      To permit the approach argued for by the defendant would lead to chaos.  It would also require Wills to set out what was to happen to the disposable portion in any case where a testator left a spouse and issue to avoid such chaos.  This was not consistent with how wills were drafted in practice.

15.      In construing a will insofar as it was necessary to refer to intention, he referred me to the case of Thomson v Surcouf [2003] JRC 175 at paragraph 12 where Commissioner Le Cras stated:-

"12.    This was a case where extrinsic evidence would show clearly that the apparent devise made was not the devise which she intended to make.  He referred the Court to several well known cases dealing with this point.  First, In Re the Will of Joseph Wardell Power (1966) JJ 643 at the passage at 647:

"I take it to be a cardinal rule of construction that a will should be so constructed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made.  To understand the language employed the Court is entitled, to use a familiar expression, to sit in the testator's armchair.  When seated there, however, the Court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he plainly said ...."

Where a word used has a clear, precise and unequivocal meaning, it is not open to the Court to attribute another meaning to that word ..." [Emphasis Added]

16.      Paragraph 13 of the same judgment continued:-

"13.    Second, In the Estate of Sir John Wardlaw-Milne, deceased (1970) JJ 1539 where there was doubt as to the identity of a legatee and the passage at 1542 of that case:

"It is our opinion that the law of this Island leans against the admission of extrinsic evidence to add to or to explain the express contents of a will.  To hold otherwise would, as Dr. Jarman says in the eighth edition of his work "Jarman on Wills" at p.502, be to commit the evil of "offering temptation to perjury".

There are, however, circumstances which will let extrinsic evidence in, but what those circumstances are it is not possible in the light of the present authorities to define.  It is possible only to give examples.  Two of such examples are -

a)        Where there arises an allegation that that which is written is not the will of the testator at all.  Such allegation can be founded on lack of testamentary capacity, fraud, and the like.

and

b)        Where a difficulty is created by the wording of the will itself, as in this case.""

17.      Paragraph 16 of the same decision referred to the following extract from  In the Estate of Father Amy [2002] JLR 80 at page 99:-

""In my judgment, the court's primary duty is to construe the will so as to give effect to the testator's intention.  That primary duty is emphasized strongly in the Norman and French texts to which Mr Falle referred, and in English law.  That intention is, however, to be ascertained from the wording of the will together with any evidence of surrounding circumstances and other evidence properly admissible.  In construing the will, the court is not to use an unduly narrow grammatical approach.  It should adopt a generous and benevolent approach (see Pothier (op. cit., at para. 150).  But where the will so construed is plain and unambiguous, the court must give effect to it.  It is not entitled to re-write the will merely because it strongly suspects that the testator did not mean what he plainly said.  Where there is ambiguity, the court should adopt that interpretation which best gives effect to the testator's intention as ascertained from the terms of the will and the surrounding circumstances (including any extrinsic evidence properly admissible)."

18.      The court's conclusion although brief was found at paragraph 21 as follows:-

"21.    This Court was not in the circumstances entitled to rewrite the will which is clear as it stands.  It seems to the Court that this submission must be correct.  Sitting, as Romer LJ put it, in the testatrix's armchair, however she described the provenance, she must have known what, in that particular locality, the devise of a garage meant."

19.      Advocate Sharp therefore argued that for extrinsic evidence to be admitted, there had to be ambiguity on the face of a will.  That ambiguity did not however exist in the present case.  The Court therefore had to give effect to the clear terms of the Will.  There was also a clear public policy against looking at the intention of a testator generally..   

20.      Advocate Sharp also relied on the fact that the testator had executed a vertically identical will in relation to Clause 5 on 22^nd December, 2009, which provision had been repeated in the Will which was the last will governing the movable estate of the testator.  There was no evidence about what had happened between execution of these two wills and no evidence about the testator's intention when the Will was executed on 23^rd April, 2009.

21.      Paragraph 29 of the defendant's second affidavit asserted that the testator did not want the plaintiffs to benefit because of a dispute arising sometime after the Will was executed.  The only evidence about any wish of the testator to change the Will was in 2015 when the defendant accepted he lacked the capacity to do so.  A subsequent decision or intention to change a will was irrelevant to the intention of the testator at the time a will was executed. 

22.      Advocate Franckel in response argued that his pleading was adequate.  He clarified in relation to paragraph 3 of the defendant's reply that the claim to 66% of the estate was based on the defendant's one third entitlement under the Wills and Succession Law (not the Will) and the one third "partie disponible" because it was the testator's intention that the defendant should receive the "partie disponible" and this was how the Will should be construed. 

23.      It was his position that where a will left an estate solely to those entitled to claim legitime, how the disposable third was to be allocated and who was entitled to it was a matter of evidence that required a trial.  Such a dispute was not a construction argument.  Evidence was therefore admissible of the testator's intention as to who was receive the disposable portion.  This was not just a question of looking at the testator's intention when executing a will.  Rather the issue was the testator's intention in relation to who should receive the disposable portion. 

24.      It was clear that the only evidence was that the defendant was intended to benefit under the Will and to receive the disposable third.  That evidence certainly was more than sufficient to justify a trial.

25.      In relation to summary judgment, he fairly accepted that I could determine matters of law.  However, he argued this dispute was both a construction of Article 7(2) of the Wills and Succession Law and a matter of evidence to determine the testator's intention which justified a trial.

26.      He also fairly confirmed that his client was not seeking to rectify the Will.  Rather her case was based on the testator's intention in respect of disposable portion. 

Decision

27.      In respect of the applicable legal principles on a strike out application and a summary judgment application these were not in dispute between the parties.  The principles on a summary judgment application were summarised most recently at paragraph 59 of HRCKY Limited v Hard Rock Limited & Ors [2019] JCA at 123 as follows:-

"59.    At paragraph 18 of his judgment giving the Appellant leave to appeal the judgment of the Royal Court of 1st February, 2018, McNeill JA helpfully set out the test which is to be adopted by the Court on an application for summary dismissal.  In essence the principles are those set out by Lewison J in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch) at paragraph 15:-

""(i)    The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91;

(ii)       A "realistic" claim is one that carries some degree of conviction.  This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];

(iii)      In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman;

(iv)      This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court.  In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED& F Man Liquid Products v Patel at [10];

(v)       However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application of a summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

(vi)      Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment.  Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Limited v Bolton Pharmaceutical Co 100 Limited [2007] FSR 63;

(vii)     On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it.  The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be.  Similarly, if the applicant's case is bad in law, the sooner that is determined, the better.  If it is possible to show by evidence that although material in the form or documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success.  However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals& Polymers Limited v TTE Training Limited [2007] EWCA Civ 725.""

28.      In respect of the applicable test on a strike out application this is well known and was summarised at paragraph 27 of Trant v The Attorney General [2007] JCA 073 as follows:-

"27.    The test on an application to strike out is well established.  It is only where it is plain and obvious that the claim cannot succeed that recourse should be had to the Court's summary jurisdiction to strike out.  Particular caution is required in a developing field of law.  Provided that a pleading discloses some cause of action or raises some question fit to be decided by a judge, jurats or jury, the mere fact that a case is weak is not a ground for striking it out.  These propositions are vouched for by a wealth of Jersey authority embracing principles deployed by the Courts of United Kingdom, see e.g. Re Esteem Settlement and the No.52 Trust [2000] JLR 119 at p.142 (we note en passant that a new régime, arguably more favourable to an application to strike out, has been introduced in England and Wales by the Civil Procedure rules)."

29.      Whether the matter is considered as one of construction as part of a summary judgment application or as disclosing no reasonable cause of action, applying the above principles, the arguments before me, required a construction of Article 7(2) of the Wills and Succession Law.

30.      In my judgment the effect of Article 7(2)(b) was to ensure that a spouse and children or remoter issue of a testator received a minimum entitlement of moveable estate, namely for a spouse (or civil partner) household effects and one third and for issue one third divided equally between the issue.  This was to reflect pre or existing customary law so that if a will of movables excluded any spouse/civil partner or any issue or limited their entitlement, the person excluded was entitled to a claim that minimum entitlement. 

31.      In the present case, if nothing had been left to the plaintiffs, they would have been entitled to claim one third of the net moveable estate.  If nothing had been left to the defendant, she would have been entitled to claim the household effects and one third of the moveable estate net. 

32.      The question in this case is what happens where everyone entitled to claim legitime receives more than their minimum entitlement.  In my judgment it is not appropriate to look behind a will in those circumstances.  The entitlement claim to legitime under Article 7(2)(b) applies where a person dies testate.  In other words unless legitime is claimed, Article 7(2) contemplates that the devolution of a deceased person's estate will governed by that person's will.  If a will therefore provides for a spouse and issue to receive more than their minimum entitlement, I consider the Article 7(2) means that the Will should prevail and be given effect to.  There is no need to modify the terms of any such will because the entitlement of the spouse and issue has been met. 

33.      I also do not consider that Article 7(2) was intended to create a different regime to the customary law regime which existed previously.  Rather the intention of the Law was simply to set out in statutory form (with some modifications not relevant to this application) the entitlement that existed for many years.

34.      While neither counsel sought to cite any writers on customary law the conclusion I have reached as a matter of construction is consistent with customary law writings.

35.      Le Geyt in Privileges Loix et Coutumes de L'Isle de Jersey Volume 3 at Titre VII Article 4 includes the following:-

"Homme Marié peut disposer par Testament de la moitié de ses Meubles en faveur de qui bon lui semble, soit Estranger de sa famille, soit heritiers collateraux, soit sa propre Femme: s'il a des Enfans, quoy qu'emancipez ou d'un premier lit, il ne peut leguer qu'un tiers de ses Meubles, mesme à sa Femme ou à ses Enfans sans prejudice de leur Juste part, sçavoir, un tiers à sa Femme & l'autre à ses Enfans." (underlining added)

36.      Le Gros in his work Traite du Droit Coutumier de L'Isle de Jersey at page 126 describes the right of a husband to dispose of  his moveable estate in the following way

"Des Biens-Mobiliers.  L'homme et la femme non mariés ont plein pouvoir de disposer de l'entier de leurs biens-mobiliers.  D'aprés Terrien, les personnes "de franche condition et point mariées peuvent testamenter de tous leurs biens-meubles."  L'homme marié qui a des enfants ou des descendants conserve un droit de disposition qui est fixé à un tiers; à défaut d'héritiers directs, son droit de disposition s'étend à une moitié; l'autre moitré revient de droit à sa femme. V. Le Rouillé.  "De testaments."  La Cour énconça les droits d'une veuve à la succession de son défunt mari dans l'action: Ex. 1926, Novembre 13.  Succession de feu Mr. John Peter Jacquet comme suit: "Considérant que, par la loi et coutume de cette ile, la veuve a droit à titre héréditaire au tiers de la succession mobilière de son défunt mari s'il laisse enfant vivant soit d'elle, soit de precedent marriage, en payant le tiers des dettes mais en exception des frais funéraires et des legs testamentaires et, s'il n'y a point d'enfants elle prend au méme titre la moitié des meubles et ce aux mémes charges et immunités." (underlining added)

37.      Both extracts therefore talk about the widow and issue or children having a right to one third.  Matthews and Nicolle's The Jersey Law of Property in chapter 8 which describes the law of succession prior to enactment of the Wills and Succession Law explains the right to legitime at paragraph 8.75 in this way:

"8.75 Any person who is deprived by a will of a legitime to which he/she is entitled may bring an action to reduce the will ad legitimum modum.  When this is done, those entitled to légitimes receive them, and the testamentary dispositions are reduced: specific legacies are, as far as possible, paid in full, and other legacies abate "au marc la livre")i.e. pro rata)."

38.      Le Geyt and Le Gros are clear that the entitlement is to one third where there are a widow and issue.  Where the widow and children receive more than one third that right has been met.  Neither has been deprived of their right which is when the right to claim a legitime arises.  In the present case, there is no such right as neither the plaintiffs nor the defendant have been deprived of their entitlements under Article 7(2) of the Wills and Succession Law.  

39.      What is clear is that if both spouse and issue do not receive their minimum entitlement under a will leaving legacies to others then the entitlement of those others who benefit is reduced pro rata until the minimum entitlement of spouse and issue are both met.  If both spouse and issue receive their minimum entitlement, any other legacies stand (assuming the estate is solvent). 

40.      Yet Advocate Franckel contended that where there are no legacies to others and everything is left to a spouse and issue, a different approach should be taken compared to wills where there are legacies to those not entitled to claim legitime.  There is nothing in the customary law or the Wills and Succession Law which justifies this different approach.  Advocate Franckel's argument also does not explain how the legitime entitlement would work i.e. how would the disposable third be allocated. 

41.      To accept Advocate Franckel's contentions would also fail to give effect to the terms of the Will.  If in the present case two thirds of the moveable estate had been left to the defendant and one third to the plaintiffs, the logic of Advocate Franckel's argument would have to be this provision only applied to the disposable third because each of the plaintiffs and the defendant would first claim their portion of legitime.  The defendant would not, based on Advocate Franckel's logic, then recover two thirds as set out in such a will, but only a legitime plus presumably two thirds of the disposable third taking a pro rata approach.  Despite the words of the will the intention of a testator to give the defendant two thirds would not occur.  This is not a construction of Article 7(2) that I can accept.  There is nothing on the face of Article 7(2) which suggests that the intention of the legislator was to state that any testamentary capacity only applied to the disposable third. 

42.      There is also nothing in the language of the Will which suggests that it only applies to a disposable portion or that the defendant rather than the plaintiffs was to receive the entirety of the disposable third.  As noted in the Thomson case referred to above, a will should be construed to give effect to the intention of the testator at the time of execution.  There are similar observations in Estate of Turquand Young [2013] JRC 235.  Sir Michael Birt, as Bailiff cited the case of Perrin v Morgan [1943] AC 399 at paragraph 11 including the following:-

"The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the 'expressed intentions' of the testator."

43.      At paragraph 12 Sir Michael Birt continued to cite the comments of Lord Romer at 420, said this:-

"My Lords, I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made."

44.      Advocate Franckel's construction cuts across giving effect to the clear language on the face of Will.  In the present case Clause 5 of the Will is clear as to the respective of entitlements of the plaintiffs and the defendant.  It does not contain any statement or suggestion that the testator intended to leave the disposable portion of one third one party rather than the other. There is also no ambiguity.  The approach Advocate Franckel would be to over complicate these clear and unambiguous terms. 

45.      In my judgment therefore because the Will provides for both the defendant and the plaintiffs to receive more than their entitlement under Article 7(2) of the Wills and Succession Law, there is no legitime for either to claim.  Neither party has been deprived of their entitlement to a share of the movable estate of the testator granted by the Wills and Succession Law originating from customary law.  Accordingly, the qualification to paragraph 5 of the amended answer is not sustainable in Law or as a matter of construction of the Wills and Succession Law.  It is therefore both struck out and summary judgment granted in the plaintiffs favour. 

46.      In relation to paragraph 3 of the reply to answer and counterclaim, the defendant has received more than her one third entitlement under the Wills and Succession Law.  To the extent that she claims an additional one third, this claim also fails.  How a testator's intention to be determined is set out in both the Thomson case and the extracts referred to above and the Turquand-Young case also referred to above.  Paragraphs 7, 11 and 12 of Turquand-Young make it clear that the intention of the testator is to be determined at the time the Will was made i.e. 23rd April, 2009. A later change of mind unless leading to an act of revocation is irrelevant.

47.      It is also not for the Court to rewrite Wills to achieve a more sensible result or as set out in In re Father Amy 2000] JLR 80 in the headnote:-

"[The court] was not entitled to rewrite the Will merely because it strongly suspected that the testator did not mean what he plainly said.  However, where there was an ambiguity the court should adopt the interpretation which best gave effect to the testator's intention as ascertained [for] the terms of the Will and the surrounding circumstances.

48.      In paragraph 99 the judgment stated:-

"[Where the Will is] plain and unambiguous, the court [must] give effect to it".  It is not entitled to re-write the will merely because it strongly suspects that the testator did not mean what he plainly said."

49.      In my judgment the meaning of the Will is plain on its face.  This is a short point of construction which entitles me to give the summary judgment in favour of the plaintiffs and to strike out paragraph 3 of the defendant's reply.  The Will does not contain any provision about the defendant receiving the disposal third nor that the Will should be read subject to the rights of the defendant or the plaintiffs to claim legitime.  Very clear language would be required for such a construction to apply.

50.      Insofar is the testator may later have changed his mind but was unable to amend his Will due to lack of capacity such evidence, as Advocate Sharp contended, is irrelevant.  Intention has to be looked at the time the Will was executed.  The difficulty the defendant faces in this case is that the language of the Will is clear and unambiguous.  The situation described in her affidavit is therefore one of the testator not meaning what he said.  That is not however a basis to depart from the unambiguous terms of the Will. 

51.      It is material in that regard that the 23^rd April, 2009, Will was a repetition of an earlier Will executed on 22^nd December, 2008.  The distribution of the estate in both Wills was the same.   A testator, having executed two wills with the same provisions both of which are clear and unambiguous, requires the Court to give effect to that clear and unambiguous language even if the testator did not in fact mean what the clear language states.  The remedy for a will not meaning what was intended is rectification (if available) which is not sought by the defendant.  The defendant also did not adduce any evidence to me about the circumstances leading to execution of the Will and the changes made and why the testator executed the Will in the same terms as the Will executed on 22^nd December, 2008. 

52.      I also reject the argument that a different approach should be taken to construing a testator's intention in respect of a disposable third divided between those entitled to assert legitime claims and from other cases where a disposable portion is left to a third party.  In my judgment this was an ingenious attempt to circumvent the clear statements in principle about how Wills are to be construed to which I have referred above.  I would add that to allow evidence of a general intention (whether before or after a Will was executed) about a testator's intention in respect of the disposable third would be a recipe for chaos, as Advocate Sharp argued.  It would lead to more disputes between families about what a deceased person's wishes and intentions were.  The certainty provided by clear language in a will would be undermined as a result.  There is therefore no basis in law for the distinction suggested by Advocate Franckel. 

53.      For all the above reasons I therefore rule as a matter of law that the plaintiffs' entitlement is to four ninths of the testator's residuary moveable estate with the defendant's entitlement being to five ninths (or 44.5% and 55.5% respectively).  The relevant parts of paragraph 5 of the amended answer and paragraph 3 of the defendant's reply to answer to counterclaim are therefore struck out with summary judgment being entered for the plaintiffs on this issue. 

Authorities

Wills and Succession (Jersey) Law 1993. 

Royal Court Rules 2004. 

Thomson v Surcouf [2003] JRC 175. 

HRCKY Limited v Hard Rock Limited & Ors [2019] JCA 123

Trant v The Attorney General and Others [2007] JCA 073

Estate of Turquand Young [2013] JRC 235

Privileges Loix et Coutumes de L'Isle de Jersey Volume 3 at Titre VII Article 4

Perrin v Morgan [1943] AC 399

In re Father Amy [2000] JLR 80