Guernsey Law Reports 2007–08 GLR 387
IN THE MATTER OF X, AN INCAPABLE
ROYAL COURT (Talbot, Lieut. Bailiff): May 8th, 2008
Mental Health—curatelle—court’s supervisory powers—Guernsey courts able to develop common law of curatelle to meet changing social conditions by following other jurisdictions applying developed Roman law of curatela (e.g. Scotland)—may extend powers of curateur and court’s supervisory jurisdiction over curatelle to give powers to recommend and approve dispositions of incapable’s estate to save foreign inheritance tax—immaterial that no immediate benefit to incapable personally or that disposition continues after end of curatelle
Mental Health—curatelle—court’s supervisory powers—when developing common law of curatelle by reference to developments elsewhere, system of law in other jurisdiction to be similar to Guernsey’s—court also to consider make-up of Guernsey population and society to ensure that developments “consistent with needs of Guernsey community”—wish of Guernsey residents to make tax-efficient provision for families abroad important consideration in developing curatelle rules
Mental Health—curatelle—curateur—powers resemble attorney rather than trustee—supersedes incapable in managing affairs and assets—duty to act as prudent administrator for benefit of incapable (en bon père de famille) and owes him fiduciary obligations
The curateur of X, an incapable unable to manage his own affairs by reason of mental illness, applied under the Curatelle Rules 1989, r.1 for
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the directions of the court with regard to proposals for the management of X’s assets.
X had lived in Guernsey for more than 20 years and was aged about 70. He was divorced and had two adult sons by his former wife. The family council, which had been constituted for the appointment of the curateur in 2004, and comprised his former wife, the two sons and a personal adviser of long standing, supported the application.
X’s assets amounted to approaching £50m. and the curateur wished to achieve on his behalf the most efficient tax structure in relation to those assets, bearing in mind that X was domiciled in Guernsey and the primary beneficiaries under the present proposals (the former wife and the two sons) were all domiciled and resident in the United Kingdom. X’s will of personal estate, made in 2002, had given substantial legacies to his sons, a number of other smaller legacies and the residue to his former wife. He had no realty in his own name. For present purposes, it was assumed that he would never recover sufficiently to manage his affairs again or change his will. It was now proposed that a settlement be put in place to secure the curateur’s objectives and the court considered, as a preliminary matter, whether it had the power to approve this proposal under the customary law governing a curatelle.
As no customary procedure was prescribed for the hearing of such an application, the court resolved that it was appropriate for the curateur and the incapable to be separately represented and that it could also hear from any member of the family council either in person or through counsel. It also sought the assistance of H.M. Procureur as amicus curiae.
The curateur submitted that (a) the court had jurisdiction to give directions on his proposals either under the Trusts (Guernsey) Law 1989, s.62 (a submission which he subsequently withdrew) or under its inherent jurisdiction in curatelle matters; (b) the claim to proceeding under the inherent jurisdiction was supported by the argument that the Royal Court had assumed the exercise in Guernsey of the royal prerogative, in the same way that in England, in some circumstances, the prerogative founded the High Court jurisdiction over mental patients and their affairs; (c) in either case, the substantive questions of the scope of the curateur’s and the court’s powers were matters governed by customary law which, recognizing that the function of a curateur included conserving, managing and administering the assets of the incapable, extended to approving the proposals presented to the court; and (d) if the scope of the customary law were not at the present time broad enough to allow the court to approve the proposals, it could legitimately be extended to authorize it, since there was clear authority allowing the Royal Court to adapt customary law to meet the needs of changing circumstances; it was possible to follow comparable developments in other jurisdictions in which the common law was based on the Roman law concept of curatela, e.g. Scotland, where the curator bonis traditionally had powers comparable to an agent or factor in respect of the ward for whom he was acting, so that he could make a
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permanent disposition of part of the ward’s estate by way of gift for the purpose of making substantial tax savings.
H.M. Procureur submitted as amicus curiae that (a) the court had no power to give directions under the Trusts Law, since a curatelle was not a trust—the Law did not constitute a curatelle a trust or make a curateur the trustee of an incapable’s property; a curateur did not take legal title to or hold the property of an incapable in his own name but it remained vested in the incapable, indeed, real property remained vested in an incapable and could not be vested in his curateur, who had to act pursuant to the approval of the Royal Court in respect of it; (b) the Royal Court could not assume inherent jurisdiction by claiming to exercise the royal prerogative, without a prior grant of such jurisdiction by legislation approved by the States; and it was extremely doubtful whether the Royal Court had ever had jurisdiction to exercise the royal prerogative, since the Crown had always maintained its own right to exercise it, normally through the Privy Council; (c) the court’s customary powers to supervise a curatelle did not extend to approving a proposal to settle a substantial part of the incapable’s assets outside the control or management of the curateur (an appointee of the Royal Court under its curatelle jurisdiction), since it would amount to gratuitously disposing of the assets of the incapable, transferring them away into a discretionary trust which would last beyond his lifetime (i.e. after the end of the curatelle) and under which persons not in the incapable’s contemplation when he had made his will might benefit and he himself obtain no additional benefit (if any at all); and (d) only legislative amendment of the court’s customary powers would enable it to approve the curateur’s proposals.
Held, confirming the jurisdiction of the Royal Court to consider the curateur’s proposal and allowing the matter to proceed to a hearing in the Ordinary Court, including the Jurats:
(1) As a development of the customary law, the supervisory jurisdiction of the Royal Court in curatelle matters should be taken to include the power to give authority to a curateur in suitable cases to make a settlement of an incapable’s assets (or a substantial part of them) in order to save tax, including inheritance tax, in the United Kingdom or elsewhere, which would otherwise be payable on his death (para. 55).
(2) The jurisdiction to give directions in respect of a curateur’s proposals was firmly part of the court’s inherent jurisdiction to supervise the curatelle. It had no jurisdiction to give directions under the Trusts (Guernsey) Law 1989, s.62 (or any other provision of that Law), since a curatelle was not a trust. It was not constituted a trust by law and a curateur was more akin to an attorney than a trustee, merely superseding the incapable in the management of his affairs and assets. Neither was the incapable’s title to his property transferred to the curateur nor was the incapable divested of his title, whereas a trustee had full control of the trust assets which were vested in him. It was true that, since a curateur had a duty to act en bon père de famille—to act as a prudent administrator
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for the benefit of the incapable—he was in a fiduciary position, owing fiduciary obligations to the incapable but there the similarity stopped and he did not become a trustee as such (paras. 23–27).
(3) Nor was the inherent jurisdiction of the Royal Court in curatelle matters in any way extended by the court’s assuming to itself the exercise of the powers of the royal prerogative over the affairs of an incapable, in the same way as it founded jurisdiction in the English High Court over mental patients and their affairs. Not only was such jurisdiction in England limited to the personal, rather than the financial circumstances of the patient but there had been no legislation approved by the States extending the use of the royal prerogative to the Bailiwick and its courts. The Crown had always maintained its exclusive right to the exercise of the prerogative, normally acting today through the Privy Council, though occasionally allowing it to be exercised legislatively, as in matters of nationality and immigration (paras. 31–32).
(4) It was the case that, as it stood at present, the customary law of curatelle would not allow the curateur to make a settlement of a substantial part of the incapable’s assets under which those assets would be placed outside the curateur’s control and management and vested in trustees under a new Guernsey trust. The proposal would breach the previously-understood customary rule that a curateur could not gratuitously dispose of the assets of the incapable, since his primary obligation was to preserve them; it would involve transferring them away into a discretionary trust which would last beyond the incapable’s lifetime (and therefore beyond the duration of the curatelle) and under which persons not in the incapable’s contemplation when he made his will might benefit and the incapable might obtain no additional benefit (if any at all) (paras. 28–29).
(5) Nonetheless, since the court was not simply prepared to await legislative intervention, it was always possible for it to develop the customary law to meet “changing social conditions” by considering developments in other jurisdictions, in which comparable rules of curatorship originally based on the Roman law concept of curatela were now exercised in a modern fashion. Guernsey had often followed English law developments, e.g. in the law of torts and criminal law, but it was more appropriate for curatelle—developed and used in France, Normandy and Guernsey—to be modernized in accordance with developments in a curatela-based jurisdiction such as Scotland. There was a substantial similarity between the traditional concept of the Scottish curator bonis (though now regulated by statute) and the Guernsey curateur, but as the curator bonis enjoyed powers comparable to an agent or factor he therefore had the same powers as the ward for whom he was acting. In particular, he was able to make a permanent disposition of part of the ward’s estate for the purpose of making substantial tax savings on behalf of the estate—which was the power the curateur sought to exercise here (paras. 37–43).
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(6) In developing the customary law by reference to developments in another jurisdiction, however, the court had to be confident not only that the system of law being relied upon was similar to that in Guernsey, but also that the modern make-up of Guernsey’s population and society made any proposed legal changes “consistent with the needs of the Guernsey community.” As a matter of fact, many contemporary Guernsey residents had moved to the Island to enjoy the social, fiscal or climatic advantages it offered. They became voluntarily subject to Guernsey law, including the customary law and the rules of forced heirship, though their families, including children, often lived abroad, frequently in jurisdictions in which more stringent tax regimes applied. The needs of such residents had to be considered when confronting the proposal for changes in the rules governing curatelle (paras. 44–46).
(7) The conclusion that the curateur’s proposal was acceptable in principle was supported when having regard to the well-known “five aids to navigation” in developing the common law, propounded by Lord Lowry: (a) the solution was not doubtful but one that could be applied without difficulty in practice, nor was the court inventing its own remedy, as this was (as shown in Scotland) a suitable remedy reflecting the flexibility of customary law; (b) the previous absence of powers to authorize such a proposal was not a “known difficulty” which the States had rejected an opportunity to deal with; (c) there was no dispute in Guernsey as to the social policy to be applied in respect of the powers of a curateur, the social circumstances concerning the affairs of adult mental patients in the Island not being distinguishable from those in England or Scotland; (d) no fundamental legal doctrine was being set aside, the customary law institution of curatelle remaining largely unchanged, subject always to the supervisory jurisdiction of the Royal Court; and (e) the change would achieve finality and bring certainty into the developing customary law of Guernsey (paras. 47–52).
Cases cited:
(1) B’s Curator Bonis, Noter, In re, 1995 S.L.T. (Sh. Ct.) 27; 1995 S.C.L.R. 671, considered.
(2) Blücher von Wahlstatt, In re, Royal Ct., July 4th, 1928, Plaids de Meubles 421, unreported, considered.
(3) C (A Minor) v. D.P.P., [1996] A.C. 1; [1995] 2 W.L.R. 383; [1995] 2 All E.R. 43; [1995] 2 Cr. App. R. 166, dicta of Lord Lowry considered.
(4) Chapman v. Chapman, [1954] A.C. 428; [1954] 2 W.L.R. 723; [1954] 1 All E.R. 798; [1954] T.R. 93, dicta of Lord Simonds, L.C. considered.
(5) D’s Curator Bonis, Noter, In re, 1998 S.L.T. 2, dicta of Lord Nimmo Smith, Lord Ordinary, applied.
(6) F (Mental Patient: Sterilisation), In re, [1990] 2 A.C. 1; [1989] 2 W.L.R. 1025; [1989] Fam. Law 390; sub nom. F v. West Berks. Health Auth., [1989] 2 All E.R. 545, referred to.
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(7) Inland Rev. Commrs. v. McMillan’s Curator Bonis, 1956 S.C. 142; 1956 S.L.T. 67; (1955), 49 R. & I.T. 137; 36 T.C. 334, considered.
(8) L (W.J.G.), In re, [1966] Ch. 135; [1966] 2 W.L.R. 233; [1965] 3 All E.R. 865; (1965), 110 Sol. Jo. 74, dicta of Cross, J. considered.
(9) Morton v. Paint (1996), 21 GLJ 61, dicta of Blom-Cooper and Southwell, JJ.A. applied.
(10) Myers v. D.P.P., [1965] A.C. 1001; [1964] 3 W.L.R. 145; [1964] 2 All E.R. 881; (1964), 48 Cr. App. R. 348, referred to.
(11) Patient, In re a, Royal Ct., February 23rd, 2001, unreported, observations of Carey, Bailiff applied.
(12) Vaudin v. Hamon, [1974] A.C. 569; [1973] 3 W.L.R. 257; (1973), 117 Sol. Jo. 601, dicta of Lord Wilberforce applied.
Legislation construed:
Curatelle Rules 1989, r.1: The relevant terms of this rule are set out at para. 2.
Trusts (Guernsey) Law 1989, s.62:
“A trustee may apply to the court for directions as to how he should or might act in any of the affairs of the trust, and the court may make such order as it thinks fit.”
P.M.A. Palmer and C.J. Hay for the guardian;
Mrs. M.M.E. Pullum, Crown Advocate, for the patient;
J.N. van Leuven, Q.C., H.M. Procureur, as amicus curiae.
1 TALBOT, LIEUT. BAILIFF: This judgment is now released to the public in such a form as to preserve the anonymity of the parties, which, in my view, is in their best interests.
2 In this judgment I deal with a preliminary question of law raised on the application now before the court by a curateur aux biens (“the guardian”) who was appointed by the Royal Court as the guardian of the affairs of X, an adult male patient, in the year 2004. By that time the patient had become “. . . unable to manage his own affairs for reasons of infirmity of mind…” within the meaning of r.1 of the Curatelle Rules 1989.
3 In the application, the guardian seeks “directions as to the conduct of the administration of the affairs of [the patient] for approval and authority to place and to hold the assets of [the patient] in a settlement, essentially in accordance with the draft deed…” which is attached to the application. The relief sought by the guardian is asked for under the supervisory jurisdiction of the Royal Court over curateurs in matters of curatelle, which itself is founded in customary law. A curateur may seek the approval of the Royal Court to, or a declaration in respect of, any proposed transaction. Applications to the Royal Court may arise in any case of dispute, for example, between a curateur and a conseil de famille,
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or in the case of doubt or difficulty as to the extent of the powers of a curateur. The Royal Court may authorize transactions to be carried out by a curateur, which, whilst prima facie in the best interests of the incapable, may carry a degree of risk and so might bring into consideration prospective liability on the part of the curateur. The practice of the Royal Court is that such transactions usually require the consent of the conseil de famille.
4 The patient is aged about 70. He was married once and the marriage ended in divorce. The patient has not remarried Y (“the former wife”), and he has no other children than the two adult children to whom I shall refer later in this judgment.
5 The patient’s conseil de famille (“the family council”), constituted for the appointment of the guardian in 2004, comprised his former wife, their two adult sons, and a man who was described in the evidence as the patient’s “personal adviser for 17 years and protector to the family trust.” The family council supports, and will, it appears, consent to the relief sought by the guardian.
6 The reason given by the guardian for issuing the application is that he wishes to achieve, on behalf of the patient, the most efficient tax structure in relation to the assets of the patient in the manner summarized in a report from chartered accountants, primarily benefiting the former wife and the adult children of the patient.
7 The question whether the proposed settlement would be both effective in achieving that aim and appropriate in the present circumstances relating to the patient and his assets does not arise at this stage of the application. That question would only become relevant if I were to find that the Royal Court had jurisdiction to consider the merits of the application.
8 When the application first came before me in September 2007, I decided that, given its unusual nature, the amount of the funds proposed to be settled, and the apparent absence of any directly relevant Guernsey cases, I should seek the assistance of H.M. Procureur as an amicus curiae on the issue of the jurisdiction of the Royal Court to make the order sought.
9 The patient has resided in Guernsey for more than 20 years and is domiciled for personal status purposes in Guernsey. In about 2002, counsel advised that the patient was Guernsey-domiciled for all tax purposes. The former wife and his two adult children are all domiciled and resident in the United Kingdom.
10 The assets presently managed by the guardian on behalf of the patient are set out in the income and expenditure summary for the year ended in 2007, prepared by chartered accountants on behalf of the
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guardian. The patient’s personal assets were valued at something over £38m. and perhaps up to £50m. His assets are therefore very substantial.
11 The patient made a will of personal estate in 2002, by which he revoked all former wills, declared his domicile to be Guernsey, where he stated that he had “lived for some 12 years past” and expressed his fixed intention to reside in Guernsey for the remainder of his life. The patient appointed the former wife and the guardian to be his executors, gave his two adult children legacies of £10m. each, gave five further legacies totalling £2.7m. and gave the residue of his personal estate to the former wife. No other beneficiaries were mentioned in the will. The patient also declared his knowledge of Guernsey’s inheritance law and that the terms of the will might, at the date of his death, conflict with Guernsey law, but he expressed the desire that his beneficiaries should respect his wishes as set out in the will. It seems that the legacies in favour of the former wife might not have been achieved under Guernsey’s forced heirship rules. The patient does not own any realty in his own name in Guernsey. Both the house in Guernsey, in which the patient lives, and another property in Portugal are owned by separate companies.
12 As H.M. Procureur helpfully expressed the position in his detailed and learned written submissions:
“. . . [F]or all practical purposes [the patient] will not recover, even temporarily, his mental faculties so as again to be capable of managing his affairs. Accordingly, he cannot, of his own volition, as a matter of Guernsey law, amend or revoke his will of personal estate, or make a new will.”
But if I decide that the Royal Court has jurisdiction to hear the application (which is the question for decision in this judgment), on the hearing of the merits of the application by the Jurats and myself at a later stage, the court will consider, inter alia, how, on the assumption that he had a moment in time when he was not lacking mental capacity so to decide, the patient himself would have decided to act in relation to the proposed settlement, on the basis of the information which is then before the court. In In re L (W.J.G.) (8), Cross, J., sitting in the Chancery Division of the English High Court, considered the approach to be adopted by a judge in determining whether and how he should exercise his discretion in regard to the making of a settlement under an English statute, where one of the aims was to avoid death duties. He said ([1966] Ch. at 143–144), in words which are of a persuasive and analogous impact here, that he had to consider the statutory words “. . . for whom… the patient might be expected to provide if he were not mentally disordered…” and continued:
“It seems to me, therefore, that I must assume that the patient becomes a sane man for a sufficient time to review the situation but
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knows that after a brief interval of sanity he will once more be as he was before.”
13 At such a stage, the court would take into account any evidence about the reasons which the patient had for coming to Guernsey, including whether, as the evidence suggests, he took up Guernsey domicile to take advantage of the local tax regime, particularly to avoid UK capital gains tax arising from the sale of his business in 1987–1988. The court would also have to consider the patient’s concern for his family and how he might have reacted to a scheme for saving his family approximately £18m. UK inheritance tax.
14 Guernsey laws relating to matters of curatelle, that is to say the guardianship of the affairs of adult incapables (who have been shown to be incapable of managing their own affairs), have their origins in Norman customary law, which, in turn, seems to have its origins in the Roman law of curatela—see Terrien, Commentaires du Droict Civil au Pays & Duché de Normandie, 2nd ed., Livre II, chap. vi, at 25–26 (1578), with the subsequent commentary from Le Marchant, Remarques & Animadversions sur L’Approbation des Loix & Coutumier de Normandie, Tome I, Livre II, at 52–53 (1826 ed.) as to the extent to which Terrien’s exposition on the subject was relevant to Guernsey in 1826.
15 The Curatelle Rules deal with the procedure on an application for the appointment of a guardian under the Royal Court’s curatelle jurisdiction; but they do not deal with the form of, or the procedure to be used on, an application by a guardian for directions after his appointment has been made. Accordingly, there is no special procedure laid down in the Curatelle Rules for the hearing of the application.
16 Nevertheless, it seems to me that, where appropriate, both a patient and a guardian may be separately represented before the Royal Court, and the court may also hear from any member of the patient’s family council in person or by his or her attorney (who would, under our practice, usually be an Advocate of the Guernsey Bar). In this case, I decided that it was appropriate for the patient to be represented by separate counsel from the guardian and, at my request, H.M. Procureur arranged for Crown Advocate Megan Pullum to represent the patient. Her submissions were most helpful, and would, in my view, be likely to be of great value if the application were, depending on the result of this judgment, later to be considered on its merits; for, in her written submissions Advocate Pullum has dealt fully, and, in my judgment, in a well-directed manner, with the present state of the patient’s physical and mental health and the care and treatment which he presently receives as well as his likely financial needs for the rest of his life.
17 Tutelle and curatelle trace their origins, as I have said, to the Roman law of tutela and curatela and, as developed, were adopted and applied
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throughout France prior to the Code Civil. Guernsey law is founded on the customary law of Normandy, “coûtume,” and customary law—which is sometimes described as the common law of Guernsey—remains at the heart of much of Guernsey’s law today, especially in land law and inheritance law. Customary law is not, however, a static or ossified source of law. It evolves in the way most appropriate to Guernsey, its population and its society. Sometimes this evolution is based, to some extent, on the development of the common law, and even the statutory law, of England and Wales, and sometimes on the laws of modern France and of Commonwealth countries. Perhaps because Guernsey has a limited, though increasing, amount of statutory law, the scope of the development of customary law is considered by some commentators to be wide. Nevertheless, any such development of customary law must be limited by the established legal principles of Guernsey law and by any statutes (Laws) and subordinate legislation in force in Guernsey from time to time. I shall return to the question of the customary law of curatelle and its development later in this judgment.
18 Tutelle and curatelle are well-developed parts of Guernsey customary law, but, as H.M. Procureur demonstrated in his written submissions—
“Norman customary law had little specific to say about them because, as civilian concepts, they were features of juridical administration throughout France, which retains them to this day though much modified.”
He also showed that because tutelle and curatelle are not regimes peculiar to Norman customary law, they feature in the Norman coûtumiers if and so far as they concern other specific issues of Norman customary law, and the Coûtume Reformée does not deal with tutelle and curatelle as topics in their own right. There has been no statute passed into Guernsey law in respect of curatelle except the public mental health treatment regime introduced by the Mental Treatment Law (Guernsey) 1939, as amended by the Mental Treatment (Amendment) (Guernsey) Law 1956, but these do not impact upon the Guernsey customary law of curatelle insofar as is relevant to the application.
19 There are only a few decided cases in Guernsey which have been reported on the subject of guardianship, whether the guardianship of minors (tutelle) or the guardianship of adult incapables (curatelle), and the leading case is that of In re Blücher von Wahlstatt (2), where the learned Bailiff, Sir Havilland de Saumarez, set out the duties of a guardian in relation to the management of the affairs of his ward. This case therefore involved the guardianship of a minor, i.e. under the Royal Court’s tutelle jurisdiction but it is clear, in my judgment, that the guiding principles under the customary law of Guernsey are the same whether an application relates to tutelle or to curatelle. Amongst the duties and
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powers of a tuteur, which the learned Bailiff set out in In re Blücher von Wahlstatt, were—
“. . . tous pouvoirs et autorité de tenir, posséder, gerer et administrer (agissant toujours en bon père de famille) et de placer et de changer le placement des argents des dits mineurs… et de passer et signer tous actes et instruments à l’effet que dessus et aussi, s’il est pour le bien et avantage des dits mineurs selon l’avis de l’autorité compétent dans la jurisdiction dont il s’agit… tous pouvoirs d’acquisition… et de disposition sur les biens meubles et immeubles des dits mineurs par aliénation, hypothèque, et même par renonciation le cas échéant…”
20 As a later Bailiff, Sir de Vic Carey, said in In re a Patient (11), in Guernsey an order appointing a guardian under the Curatelle Rules 1989, is generally of unlimited duration and I shall proceed upon the basis that, on the evidence, there is no realistic chance of the patient recovering his mental capacity, and that the order appointing the guardian made in 2004 is likely to remain in force until the patient’s death so long as he remains within the jurisdiction of the Royal Court.
21 Whilst the comments of the learned Bailiff in Blücher (2) did not address in very great detail the legal relationship arising as between a curateur and the assets of an incapable during curatelle, it is clear that the current practice in Guernsey is that, at least in general terms, the function of a curateur is to conserve, manage and administer the assets of the incapable and to ensure that the physical care of the incapable is properly provided for. The eminent French jurist Pothier mentioned (Oeuvres, vol. 10, 1st ed., art. III, at 70 (1827)) further elements in customary law then applicable relating to tutelle (and therefore, as I have said, also relating to curatelle) including:
(a) the acts of a tuteur are those of his minor;
(b) a tuteur may dispose of the assets of his minor and any such dispositive act must be an act of “commerce”—i.e. for value;
(c) a tuteur cannot give away his minor’s assets;
(d) because the act of the tuteur is the act of his minor, it must be undertaken in the management of the minor’s assets; and
(e) making a gift is not an act of management, with an exception for gifts of modest sums of money or goods, as propriety demands, for those who have rendered some service to the minor.
(The fifth point may have been amended by changes in the law of France after Pothier wrote.) Not surprisingly, a tuteur is liable for fraud and also for acting beyond or contrary to the principle that he must act en bon père de famille, which is often understood by Guernsey lawyers to mean that he
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must act with prudence in managing and conserving the assets of the incapable.
22 When the application first came before the court, it was expressly made pursuant to both s.62 of the Trusts (Guernsey) Law 1989, as amended (which Law was then in full force) and the inherent jurisdiction of the Royal Court in curatelle matters. But, after due reflection, Advocate Patrick Palmer, who represents the guardian, put the application on the latter basis only, and eschewed any reliance upon the 1989 Trusts Law. I consider that Mr. Palmer was correct to do so.
23 In my view, there is a real distinction to be drawn between a trustee and a curateur. For, whilst a trustee may have full control over the assets, which have been, very frequently in an irrevocable manner, vested in him as trustee, a curateur appointed under an order of the Royal Court merely supersedes an incapable in the management of his affairs, including his assets, during the currency of his appointment. The assets of the patient are not, as I understand the practice, transferred to, or otherwise vested in, the curateur, nor is the incapable in any way divested of his assets. To put it in another way, the assets remain the assets of the patient and the curateur has no title to them.
24 In carrying out his duties, a curateur must act en bon père de famille—literally meaning “as a good father of the family,” but meaning, as I have said, in modern times, acting as a prudent administrator for the benefit of the incapable. Whilst the obligation to act en bon père de famille is common to the office of trustee and to the office of curateur, a similar obligation would ordinarily attach to a person entrusted with the management of a person’s assets as his attorney (subject to the terms of appointment). Indeed, as H.M. Procureur submitted, and I accept, the role of a curateur is, in many respects, more akin to that of attorney than trustee, which point emphasizes the managerial nature of the office with respect to an incapable’s assets.
25 I consider that the approach taken by Lord President Clyde and Lord Sorn in the First Division of the Court of Session in Scotland on an analogous point raised under the Judicial Factors Act of 1849, as amended, in Inland Rev. Commrs. v. McMillan’s Curator Bonis (7) is persuasive and is equally applicable in Guernsey to the distinction between a curateur and a trustee. The Lord President, dealing in a tax appeal with the status and function of the curator bonis (an office-holder whose powers and duties at that time were not, it seems, quite the same as those of a curateur, but were of a similar nature) said (1956 S.C. at 147):
“The essential purpose of the appointment of a curator bonis to an incapax is to supersede the latter in the management of his estates—see Lord Kinnear in Yule v. Alexander (1891) 19 R. 167 at p. 169. But they still remain his estates, and, as the Lord President said in
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that case (at p.168): ‘The position of a curator bonis is not that he has transferred to him the estate of the ward, nor is the ward divested of that estate. The more accurate statement is that made by Mr Bell (Bell’s Prin., sec. 2121), viz., that the ward’s management of his estate is superseded in favour of the curator’… In my view, the curator bonis is in the same category for the present purpose as an agent or factor appointed by a capax to manage his affairs and ingather his estate.”
Lord Sorn added (ibid., at 150): “. . . [T]he curator remains essentially a manager, who manages the estate on behalf of the ward.”
26 In summary, I conclude that a curateur is not a trustee for the purposes of the 1989 Trusts Law (or, indeed, for the purposes of the Trusts (Guernsey) Law 2007, which is now in force) and the jurisdiction of the Royal Court to supervise and, where appropriate, intervene in the administration of a Guernsey trust simply does not apply to the application. I accept the submissions of H.M. Procureur that whilst a curateur stands in a fiduciary position and owes fiduciary obligations to the incapable, because he is subject to the obligation to act en bon père de famille for the benefit of the incapable, a curateur is neither a trustee nor considered as such.
27 In support of his submissions (which I accept and adopt here, paraphrasing his words), H.M. Procureur pointed out several important distinctions between a trustee and a curateur. First, no provision of the 1989 Trusts Law or of the 2007 Trusts Law either constitutes a curateur as trustee of an incapable’s property or constitutes a curatelle as a trust. Secondly, a curateur does not take legal title to, nor does he have vested in him, the property of his incapable. Nor does a curateur “hold” the property of an incapable in his own name. As a matter of Guernsey law and practice, the property of an incapable under curatelle usually remains vested in the name of the incapable. Thirdly, an incapable’s Guernsey real property remains in his name and is not subject to any instrument vesting it in the curateur, and whenever it is conveyed or charged, the curateur acts pursuant to the approval of the Royal Court with respect to such property which, both legally and beneficially, is, and has remained, that of the incapable.
28 As I mentioned earlier in this judgment, there is, I think unsurprisingly, no authority in Guernsey which supports the granting of relief under the curatelle jurisdiction of the Royal Court in the form sought in the application. Although the jurisdiction of the Royal Court pursuant, now, to s.57 of the 2007 Trusts Law allows the court, in a suitable case, to approve a variation of an existing Guernsey trust under which substantial overseas tax saving will be made by virtue of the arrangements before the court, there is no indication that Guernsey’s customary law has previously been
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relied upon to allow such a scheme where the assets in question remain vested in an incapable, i.e. where there is no existing trust affecting the assets of the incapable. Neither counsel for the guardian nor H.M. Procureur (the helpful researches of both of whom have been impressively wide and considered Roman law, English law, French law, the law of Louisiana and Scots law) were able to point to any decision of the courts of Guernsey of any assistance. I add that, in respect of foreign law, I have also been assisted by the opinions of eminent English, Scots and French lawyers, who have been retained by the guardian and by H.M. Procureur.
29 At the heart of the arguments of counsel and H.M. Procureur lies what I believe to be a most important issue, namely, can the customary law of Guernsey, as it stands today, allow a curateur to make a settlement of a very substantial part of the assets of an incapable, under which, in reality for the rest of the life of the incapable, these assets will be placed outside the control and management of the curateur appointed by the Royal Court under its curatelle jurisdiction and vested in trustees under a new Guernsey trust? The proposed settlement would amount to a gratuitous disposition of assets of the patient; it would not involve the preservation of those assets as the assets of the patient, but would rather transfer those assets away from the patient into a discretionary trust which is intended to last beyond his lifetime, i.e. to remain operating after the end of the existing curatelle, and under which persons not in the patient’s contemplation when he made the will may benefit and from which the patient himself will obtain, as H.M. Procureur put it in his written submissions, “no additional or equivalent benefit—and even, arguably substantially less material benefit—than at present.”
30 I turn then again to consider, in the context of the application, the origin, nature and extent of the jurisdiction of the Royal Court in matters of curatelle.
31 First, it is necessary for me to dispose of one feature of Mr. Palmer’s arguments in favour of the Royal Court’s having inherent jurisdiction to grant the relief sought by the guardian. Mr. Palmer submitted that the Royal Court might have assumed to itself the exercise of the royal prerogative over the affairs of an incapable, which in England and Wales was, he said, exercised by or pursuant to Crown grant or statute. Mr. Palmer relied upon a joint opinion from eminent English leading and junior counsel, which helpfully discussed the basis or the use, in certain circumstances, of the royal prerogative as founding jurisdiction in the High Court in cases relating to mental patients and their affairs: see In re F (Mental Patient: Sterilisation) (6) and subsequent cases. But I doubt whether such jurisdiction extends in England and Wales as far as the application seeks to go. It seems to me that such jurisdiction relates more to the personal circumstances, rather than the financial circumstances, of a mental patient.
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32 I can, however, dispose of this point more shortly. There are no Laws or subordinate legislation, such as Ordinances or Regulations, in Guernsey in respect of the jurisdiction of the Royal Court in curatelle matters, which in any way extend the royal prerogative, as it is used in England and Wales, to the Bailiwick and its courts. In these circumstances, no recourse can, in my judgment, properly be had to the royal prerogative as founding in the Bailiwick an extended jurisdiction of the Royal Court in curatelle matters to permit the granting of relief like that sought in the application. I accept the submission of H.M. Procureur that the Royal Court cannot, as a matter of Guernsey law, adopt jurisdiction by assuming the exercise of the royal prerogative without the prior grant of such jurisdiction by, for example, letters patent or statute in the form of a Law approved by Her Majesty in Council and then adopted into Guernsey law by a resolution of the States of Deliberation. H.M. Procureur rightly submitted as follows, and I adopt his submission as an accurate analysis of the position of the royal prerogative vis-à-vis Guernsey:
“Whether the establishment of the Royal Court carried with it any jurisdiction to exercise the royal prerogative must be, at least, extremely doubtful; indeed, had it done so the constitution of Guernsey and Guernsey law would have developed in very different ways; and in any event, I can trace no exercise by the Royal Court judicially or administratively of a power claimed or assumed under the prerogative. The Crown has always maintained its exclusive right in the exercise of the prerogative, acting now ordinarily by and through the Privy Council, though legislation may confer exercise of aspects of the prerogative domestically as, for example, in matters of nationality and immigration.”
In my judgment, the guardian is, therefore, limited to reliance upon the customary law of curatelle in Guernsey as it applies today.
33 The supervisory jurisdiction of the Royal Court in relation to curateurs and curatelle is well-established and undoubted. Whilst the jurisdiction is limited, for example, the Royal Court cannot authorize a transaction which the incapable himself, had he retained his mental capacity, could not lawfully have carried out, it has customarily been used to authorize or direct transactions, especially relating to Guernsey real property, which can be defined as being for the clear benefit of the incapable.
34 The application seeks authority from the court under its supervisory jurisdiction for what is accurately described by H.M. Procureur in his written submissions as—
“. . . a dispositive act involving the transfer of a substantial proportion of the patient’s assets, reserving a life interest in the incapable, but otherwise containing wide discretionary dispositive trusts and
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powers, which will last beyond his lifetime (and so the duration of the curatelle) in circumstances where the patient has (i) forced heirs and (ii) a valid will (which cannot be altered), addressing the manner in and by which the patient’s estate is to be disposed of post mortem.”
H.M. Procureur submits that such a development of Guernsey law would require legislative intervention and is not to be covered by the existing Guernsey customary law of curatelle. I have to decide whether this submission is right or whether customary law, which it is accepted is not static or ossified, gives the Royal Court power, in suitable cases, to grant authority to a curateur to make a settlement of his incapable’s assets in a manner which will, in all likelihood, have the effect on the death of the incapable of very substantial tax savings being enjoyed by his former wife and his sons.
35 It is therefore necessary for me to consider the existing authorities on the development of customary law. In the leading case of Morton v. Paint (9), the Court of Appeal decided that the Guernsey law of tort would follow the (English) Occupiers Liability Act 1957, thereby allowing Guernsey law to develop in the same direction as the English law of tort. Blom-Cooper, J.A. described as “the very organism of the common law—namely, its constant adaptability to changing social conditions.”
36 In a lengthy judgment, Southwell, J.A. considered with great care the common law of many jurisdictions, including England and Wales, and said that in respect of torts it has been customary for the Guernsey courts to adopt English common law as it has been developed by the English courts. The same, I think, can properly be said in relation to the criminal law, and there are many examples of Guernsey following England and Wales in passing statutes developing the criminal law. The learned Judge of Appeal said in a very well-known passage:
“The coûtume and common law of Guernsey has always developed by judicial decision, supplemented by statutes passed by the States of Guernsey and approved by the Privy Council. But there are fundamental parts of Guernsey common law which have been recognised as not being capable of alteration by judicial decision. In Singleton v. Le Noury (1990) 9.GLJ.48, the Court of Appeal of Guernsey considered questions relating to alleged rights of way arising from a Clameur de Haro raised by the Le Noury respondents. In their judgment the Court of Appeal said this (at page 18):
‘. . . the court is of the opinion that under Guernsey law a servitude cannot be acquired by prescription. The Court accepts that the Coûtume does develop over the centuries. The maxim “coûtume fait loi et la meilleure loi est la coûtume du pays” refers to such development. But such development cannot
2007–08 GLR 403
change the fundamental and substantive common law and the principle of “nul servitude sans titre” and “Droit de servitudes de vues, égouts de maisons…” set out in the writings of Laurent Carey, Basnage and Berault are part of our coûtume or fundamental common law and cannot be altered by judicial decision.’
That case concerned the property law of Guernsey. Long standing and fundamental principles of property law could not be overturned by judicial decision today…”
37 In relation to curatelle it is not, in my judgment, appropriate for me to follow developments of the law of England and Wales relating to the assets of adult mental patients, including the exercise of statutory will-making and settlement-making powers, and apply such developments to Guernsey. The historical basis of curatelle is Roman law, as developed and used in France (where it is now called tutelle des majeurs), especially in Normandy and in Guernsey itself, whereas the origin of the common law of England, as amended and amplified by statute, as I understand the argument and the learned opinions produced, is materially different and does not appear to have been based originally on Roman law principles of curatela.
38 Nor am I persuaded that it would be right to follow, in respect of curatelle, the approach of the House of Lords in Chapman v. Chapman (4), when their Lordships refused to hold ([1954] A.C. at 443, per Lord Simonds, L.C.)—
“. . . that a judge of the Chancery Division of the High Court of Justice has an inherent jurisdiction in the execution of the trusts of a settlement to sanction on behalf of infant beneficiaries and unborn persons a rearrangement of the trusts of that settlement for no other purpose than to secure an adventitious benefit which may be and, in the present case, is, that estate duty, payable in a certain event as things now stand, will, in consequence of the arrangement, not be payable in respect of the trust funds.”
In this extremely well-known case, the decision in which led to the changes in the English law of trusts introduced by the Variation of Trusts Act 1958, their Lordships, perhaps as a matter of policy, drew a line. I draw attention as well to what Lord Simonds said (ibid., at 444, third paragraph), without, I think, needing to set it out.
39 There is, as I have previously mentioned, a real distinction between a trust on the one hand and the customary law institution of curatelle on the other hand. In my view, the distinction was well analysed by Lord Nimmo Smith, the Lord Ordinary, in In re D’s Curator Bonis, Noter (5). It is
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useful to read the headnote to the case in the Scots Law Times, which is in the following terms (1998 S.L.T. at 2):
“A curator bonis made an application by way of note for special powers, in accordance with s.7 of the Judicial Factors Act 1849, and rule 6.15 of the Rules of the Court of Session. He wished to enter into a tax planning arrangement in order to protect the estate of the ward in the event of her death. The ward had substantial assets and the curator was concerned about the potential effect of inheritance tax. Her only surviving relatives were her brother and nephew, who were both named in her will and who were the only persons with an interest in her estate. The curator sought authority to instruct the completion of conveyancing formalities of the ward’s one half share of a house in England as a gift to her brother, and secondly to make gifts of £50,000 to her brother and £20,000 to her nephew. These gifts would not prejudice the ability of the ward’s estate to support her until her death, but would result in a significant saving of inheritance tax upon her death. The application was unopposed, but the Lord Ordinary heard full submissions as there was no previously reported instance in which the court had granted an application for special powers resulting in a significant diminution of the ward’s estate.”
40 The decision of the learned Lord Ordinary is, in my view, of comparative value when considering the jurisdiction of this court to grant relief of the nature sought in the application, and I have found it persuasive authority from a court of equivalent jurisdiction. The approach of the Lord Ordinary was summarized in the headnote in the Scots Law Times as follows (ibid.):
“Held:
(1) that as the curator was in the same category as an agent or factor appointed by a capax to manage her affairs and ingather her estate, there was no need to subject the curator to the same constraints as a full trustee…
(2) that there was accordingly no objection in principle to his disposing of part of the ward’s estate, even if that resulted in a permanent diminution of the estate;
(3) that a curator could legitimately have regard to the known wishes of the ward, and would in addition be entitled to form his own view of what the ward would have decided if retaining mental capacity…
(4) that it would also be necessary to ask what a reasonable and prudent person would decide having regard to all the relevant circumstances and to appropriate professional advice…
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(5) that in the present case appropriate advice had been taken and a reasonable and prudent person would act as the curator proposed to do… and prayer of the note granted and curator authorised to proceed in the manner proposed by him.”
Lord Nimmo Smith said (ibid., at 4–5):
“Any question of principle can be resolved by reference to the authorities relating to the status and functions of a curator bonis.
. . .
In Fraser v. Paterson (No. 2) Lord Jauncey was considering an application for special power to a curator bonis to continue to hold shares in a family company, which were not authorised investments under the Trustee Investments Act 1961. After reviewing the authorities… Lord Jauncey said, at 1988 SLT, p. 125: ‘From these authorities I conclude that the primary duty of a curator bonis is to preserve and manage the curatory estate for the benefit of the ward and that what may be for the benefit of the ward will not necessarily result in the maximising of the estate nor the conversion thereof into trustee investments.’
He went on, in reaching his decision, to have regard to what was known of the ward’s views about the continued retention of the investment.
In addition to cases decided in this court, I have derived assistance from a sheriff court case. In B’s CB, Noter 1996 SLT (Sh Ct) 27 Sheriff Principal Hay had to consider an application craving authority to sign a deed of variation allowing part of the estate of the curator’s ward’s late husband to be redirected to their two sons. The sum so directed would have been exempt from inheritance tax on the death of the ward’s late husband and, by reducing the ward’s estate, would reduce the potential liability to inheritance tax on her death. The sheriff refused the crave, considering that the special power sought appeared to be totally at variance with the purposes of the appointment of a curator bonis, namely, the preservation and administration of the estate of the incapax. On appeal, however, the sheriff principal granted the application, holding that although the effect of the arrangement would be to reduce the amount of the ward’s estate, there was a high probability that, had the ward been able to make the decision, she would have adopted the proposed course in order to mitigate the incidence of inheritance tax on the estate which would pass to her sons on her death.”
The learned Lord Ordinary then quoted at length from the decision of the Sheriff Principal in In re B’s Curator Bonis, Noter (1) (1996 S.L.T. (Sh. Ct.) at 29) where, in assessing the merits of the application before him for
2007–08 GLR 406
special power, he considered a number of factual issues of the kind which may prove relevant on any hearing of the merits of the application in this court.
41 Lord Nimmo Smith was dealing with a jurisdiction which derived from the Roman law of curatela and decided a question which, in a sense, is the same as the question before me. The learned judge decided that a curator bonis did have the right to ask for special powers to make gifts, which would have the effect of making substantial tax savings. It appears from a letter to the guardian from a Scottish solicitor (a member of a firm of Edinburgh solicitors, which I accept as admissible evidence of foreign law) that Scottish law derives from various sources, including customary law:
“. . . [P]rinciples developed in the civil law of Rome and accepted in Scotland through the mediation of the writings of French, German and Dutch jurists from the fourteenth to the eighteenth centuries, principles of canon law as developed down to the Reformation, the principles of feudal law of Western Europe, and in particular Norman law… and some of the principles of the common law and equity of England… Failing guidance from any of the foregoing the courts may turn to other systems of law, particularly those founded on similar historical bases. Thus the courts may look to the civil law jurisdictions of the USA, France and Holland.”
In his letter of advice, the Scottish solicitor also helpfully addressed the distinction between general powers granted to a curator bonis on appointment and special powers required by a curator bonis in order to carry out his duties.
42 In In re D’s Curator Bonis (5), Lord Nimmo Smith continued (1998 S.L.T. at 4):
“If, as Lord President Clyde put it in Inland Revenue v. McMillan’s CB, the curator is in the same category for present purposes as an agent or factor appointed by a capax to manage her affairs and ingather her estate, there is no need to regard the curator as being subject to the same constraints as a full trustee would be. A trustee must of course act within the provisions of the trust deed under which he has been appointed, and he can only exercise the powers conferred by it, supplemented as necessary by the provisions of the Trusts (Scotland) Acts, otherwise his actings are ultra vires. But if a curator bonis is in the same category as an agent or factor, there is no reason in principle to regard his powers as being less than co-extensive with those of the ward. So there can be no objection in principle to his disposing of part of the ward’s estate, even if that results in a permanent diminution of the estate…”
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43 Bearing in mind the need for there to be shown to be some degree of similarity between a curator bonis under the previous Scottish system (which has now been replaced by statute) and a curateur, I have been cautious to accept the approach of the Lord Ordinary as the right approach to take on the preliminary point which I am to decide. I have also borne in mind both that the Scottish law relating to the status and functions of a curator bonis has been, in part, developed by statute from the mid-19th century onwards and that the concept of forced heirship does not operate in Scotland.
44 I have also taken into account that it seems to be rather doubtful, according to the expert on French law instructed by H.M. Procureur, that modern French law would grant the guardian relief equivalent to that sought by him in the application; as the expert on French law put it: “It would be very difficult to achieve that result under French law.”
45 Furthermore, I also pay heed, as I must, to what Lord Wilberforce said in Vaudin v. Hamon (12) (a case on appeal from the Court of Appeal of Guernsey, in turn on appeal from this court exercising its appellate jurisdiction from a decision of the Seneschal’s Court of Sark) ([1974] A.C. at 581–582):
“If an argument based on analogy is to have any force, it must first be shown that the system of law to which appeal is made in general, and moreover the particular relevant portion of it, is similar to that which is being considered, and then that the former has been interpreted in a manner which should call for a similar interpretation in the latter.”
46 In this context, I consider it is appropriate for me to take into account the make-up of Guernsey’s population and society today. At the present time, the residents of Guernsey include amongst their number many, like the patient, whose original home and domicile were elsewhere, but who have chosen to emigrate to Guernsey to live their lives out and enjoy all the advantages, whether social, fiscal or climatic, which they believe such a move provides, whilst at the same time, of course, becoming subject to the laws of Guernsey including its own customary law, which includes rules as to forced heirship. Many of these residents have family members, including children, living elsewhere, including the United Kingdom, where more stringent tax regimes may well apply. This is not something which a developing customary law can, in my judgment, properly ignore. In my judgment, as the make-up of Guernsey’s population and society changes, so may the customary law of Guernsey, wherever appropriate, change to meet the requirements of that population and society. The changes in the make-up of Guernsey’s population and society may properly be reflected, in my view, where necessary, in the “constant adaptability of the common law to changing social conditions,” the phrase used by Blom-Cooper, J.A. in Morton v. Paint (9), based possibly on the
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dictum of Lord Reid in Myers v. D.P.P. (10) ([1965] A.C. at 1021–1022): “The common law must be developed to meet changing economic conditions and habits of thought…” I also consider that the nature of the relief sought by the guardian in the application would result in the continuing development of the customary law of Guernsey relating to curatelle “in a way which is consistent with the needs of the Guernsey community” (Morton v. Paint, per Southwell, J.A.).
47 I have also taken into account the five aids to navigation propounded by Lord Lowry in C (A Minor) v. D.P.P. (3), a passage cited by Southwell, J.A. in Morton v. Paint. Lord Lowry said ([1996] A.C. at 28):
“I believe, however, that one can find in the authorities some aids to navigation across an uncertainly charted sea. (1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems. (4) Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty.”
48 I consider that the solution in this case proposed on behalf of the guardian is not a doubtful one, but one which can be applied without difficulty in practice; nor, in my judgment, would the Royal Court be imposing its own remedy. As the Scottish courts have shown in an analogous situation relating to the powers of a curator bonis, customary law is a flexible law and the relief sought by the guardian would, in my judgment, properly reflect such flexibility.
49 Secondly, in my view, the question now before me cannot be described as “a known difficulty,” which the States of Deliberation might have cleared up when legislating on the subject of the care and treatment of mental patients. I doubt whether the question had been considered within the legal community much, if at all, before the application came before the court on August 1st, 2007.
50 Thirdly, I do not believe there to be a dispute “as to matters of social policy” in Guernsey in relation to the powers of a curateur, at least not one which the evidence or argument identified. In my view, it is unlikely that the social circumstances concerning the affairs of adult mental patients in Guernsey differ in any material way from those in England or Scotland.
51 Fourthly, the proposed relief would not make a substantial change, as I see it, to the fundamental customary law of Guernsey relating to the institution of curatelle, which would stand fundamentally unchanged, subject always to the supervisory jurisdiction of the Royal Court.
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52 And, fifthly, the change which this judgment would introduce into the developing customary law of Guernsey relating to curatelle would, I think, achieve finality and certainty.
53 For the sake of completeness, I mention that I was directed to some reforms in French law relating to tutelle des majeurs, which are to take place soon; but it is not right, in my judgment, for me to take account of them as representing support for the guardian’s argument and I have not done so.
54 In conclusion, it is clear that under Guernsey’s existing customary law of curatelle the role of the Royal Court includes paying the utmost attention to what is, in my judgment, properly described by Advocate Palmer in his reply submissions as “the paramount concern of the Crown exercised by the Royal Court for the best interests of the incapable.” Doubtless, these interests will almost always overlap with what is described in counsel’s submissions as taking heed “that the directions sought are for the benefit of the incapable.”
55 In my judgment, the approach taken by the Scottish courts in In re D’s Curator Bonis (5) and in the other cases there discussed by Lord Nimmo Smith, should be applied in Guernsey as a proper development of our customary law of curatelle, and I conclude that the jurisdiction of the Royal Court over matters of curatelle includes a power, where appropriate on the facts of a case, to give directions of the kind requested by the guardian in the application.
56 I add that I do not believe that there is anything which this court can properly criticize in the aim of the guardian, on behalf of the patient, to minimise, so far as is lawfully possible, the impact of UK inheritance tax on the patient’s estate at his death.
57 I conclude, therefore, that the supervisory jurisdiction of the Royal Court in curatelle matters includes a power to give authority to a curateur in suitable cases to make a settlement of his incapable’s assets or of a substantial part thereof in order to save tax, including inheritance tax, in the United Kingdom, or, indeed, elsewhere, which would otherwise be payable on the death of the incapable. I accept the reasoning of Lord Nimmo Smith as being applicable to curatelle in Guernsey today. In my judgment, this approach properly reflects the changes in social conditions in Guernsey to which I have referred above.
58 Whether or not this is a proper case for the grant of relief of the nature described in the application will now fall to be decided by the Ordinary Court, including the Jurats, at the next stage of these proceedings.
Order accordingly.
2009
Law Report
None
Guernsey Law Reports 2007–08 GLR 387