A Tale of Two Cities

 In Probate

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As we all head off on our holidays the thoughts of many lawyers turn to the legal systems of other countries. Those heading to France, or many other civil law countries, will (of course) know that their concepts of administration of estates are very far removed from our own. The most striking example is that when a person dies those entitled are immediately entitled, with no interim period to administer the estate, discharge the debts and so on, at least not as we common lawyers would understand it.

Minors having an interest in land

One of the areas where that causes difficulties is in dealing with the property of a minor. Under the French system the minor is immediately entitled to whatever interest falls to them, whether under the civil system or under any recognised Will. So if they inherit a proportion of a property that property is theirs. In order to sell the property they must join in the sale. But they are minors, so how do they sell their interest? If they are French the conundrum is resolved by the French system with the courts making relevant orders and protecting their interests.

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Where it gets interesting (for English lawyers) is where the minors are resident in England. The French courts will not exercise any jurisdiction over them. The Notaire, naturally enough, will require an Order from the English Court. But the English Court has no concept of such a jurisdiction. In England the interests of minors are protected behind trusts and the trustees are fully capable of selling trust assets without the intervention of the courts.

What is the answer to this (presumably less and less unusual) conundrum?

First, dust off an excellent article in the 2000 edition of the Solicitors Journal at page 398 (by Henry Dyson).

Second, following the lead given in that article, refresh your memory of section 53 Trustee Act 1925 and Re Meux [1957] Ch 154. The statutory provision permits the court to appoint a person to convey property to which an infant is beneficially entitled. Getting such an order gives the Notaire someone he can deal with and who can act on the minor’s behalf. The trick, as appears from Re Meux, is to also provide that the proceeds be held upon trust.

Result

Job done? Not quite. The French Notaire is also hoping that the court will “bless” the sale and for that you need some form of words approving the sale on behalf of the minor. The jurisdiction? Things get a bit hazy here but the court has always had power over minor’s property and the ability to bless compromises etc and that should be enough to persuade the Master. So long as there is no hint of a re-arrangement of that minor’s property interests, the trap of Re Chapman [1954] AC 364 should be avoided.

An application for such an Order can be made using CPR Part 8, with a witness statement explaining what it is all about, evidence establishing that the sale is a “good thing” and hopefully a useful statement from the Notaire explaining what he needs and why he needs it. The writer’s experience is that, with the odd bump in the road, it is possible to get such orders from the Chancery Master. If necessary, the orders can be obtained urgently using the without notice applications system operated by the Masters.

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