Parcou v. Estate Parcou & Anor (CS 35 of 2023) [2024] SCSC 105 (4 June 2024)

Order
  1. The dispositions of the Last Will and Testament of the late Julien Kaven Parcou contravene the laws of Seychelles existing at the time of opening of his succession on 20th October 2017 in that it bequeathed the entire estate to his surviving spouse the 2nd Defendant – to the exclusion of the reserved heirs.
  2. In terms of Article 920 of Cap 33, I reduce the dispositions of the Last Will and Testament of the late Julien Kaven Parcou made to the 2nd Defendant to the allowable portion stipulated under Article 913 of the same Cap 33, namely to one third after deduction of all the debts of the estate at the opening of succession. The remainder two thirds of the estate go to the two children of the deceased who are his reserved heirs, namely the Plaintiff and the adopted child. The Plaintiff is therefore entitled to one third share in the estate of her late father Julien Kaven Parcou.
  3. I award costs of this suit to the Plaintiff.
Case summary

Reduction of dispositions by will – Civil Code of Seychelles Act, Cap 33


 

A. MADELEINE, J

Introduction

 

  1. The late Julien Kaven Parcou died in Seychelles on 20th October 2017. By his last Will and Testament made on 15th October 2016 (the “Will”) he bequeathed his entire estate to his wife ‘Rose Taroza Parcou’.

 

  1. On 11th November 2019, the Supreme Court, per Twomey CJ (as she then was), declared that the Plaintiff herein (then Jill Debra Cecile Laporte and now Jill Debra Cecile Parcou) born on 9th May 1973 is the child of the late Julien Kaven Parcou. The Court also ordered that her certificate of birth is amended to reflect the same.1 The Supreme Court’s Judgment and order were unanimously upheld by the apex court – the Seychelles Court of Appeal - on 29th April 2022.2

 

  1. Now, the Plaintiff comes before this Court seeking: (i) a declaration that the dispositions of the Will of the late Julien Kaven Parcou (the “Deceased”) is a contravention of the laws of Seychelles at the time; (ii) a reduction of the dispositions of the said Will to ensure that the Plaintiff, as a reserved heir receives the reserved portion of the Deceased’s estate to which she is entitled; (iii) Alternatively, an order that she is compensated for her share of the estate; (iv) with costs of the suit.

 

Pleadings

Plaint and Amended Plaint

 

  1. By Plaint filed on 20th April 2023, the Plaintiff avers that she is the daughter of the Deceased also known as “Julien Parcou” who died in Seychelles on 20th October 2017. She brought the plaint against ‘The Estate of the Deceased’ as represented by its executrix Rose Taroza Parcou (the “1st Defendant”) and against the said Rose Taroza Parcou as the wife and sole beneficiary of the Deceased’s estate (the “2nd Defendant”).

 

  1. The Plaint avers that the Deceased made a notarial will on 15th October 2016 and registered on 12th December 2017, in which he bequeathed his entire estate, movable and immovable, to the 2nd Defendant. He also appointed the 2nd Defendant as the executrix to his estate.

 

  1. The Plaint further avers that at the time of the Will and death of the Deceased, had the Plaintiff been declared the child of the Deceased she would have been a reserved heir and entitled to one half of the estate of the Deceased in accordance with the law. On the date of her declaration as child of the Deceased she became entitled to one half share of his estate. In consequence, the Will of the Deceased making the 2nd Defendant the sole legatee contravened the law and has to be amended to give effect to her entitlement.

 

  1. On 12th July 2023, Plaintiff filed an ‘Amended Plaint’ with leave of the Court and no objections from the Defendants. The Amended Plaint corrected the name of the 2nd Defendant from “Rose Taroza Parou” to “Rosita Taroza Parcou” wherever it appears in the plaint. It also introduced a further averment that the Deceased is also the father of a second child by adoption and corrected the Plaintiff’s entitlement in the estate of the Deceased from one half to one quarter share in paragraphs 8, 9 and 11 of the Plaint.

 

  1. Based on the averments of the Plaint, the Plaintiff prays for the reliefs referred to under paragraph 3 above.

 

Statement of Defence

 

  1. By Statement of Defence filed on 14th June 2023, Defendants raised points of law that the application is bad in law as the name of the executrix of the estate of the Deceased and of the 2nd Defendant is wrongly written on the Plaint. These points of law have been rendered obsolete by the Amended Plaint filed without objections from the Defendants.

 

  1. On the merits, the Defendants deny and put the Plaintiff to the strictest proof that she is the daughter of the Deceased since she was declared to be his daughter in the absence of a deoxyribonucleic acid (DNA) test and the Deceased was known to be incapable of conceiving whilst alive.

 

  1. The Defendants also deny and put the Plaintiff to the strictest proof that she is entitled to one half share of the estate of the Deceased (as amended to one quarter).

 

  1. It is averred that the Will is valid under the law and the Deceased was entitled to bequeath his entire estate to the 2nd Defendant, that the Plaintiff is not entitled to inherit any property from the estate of the Deceased as pleaded or at all in law, and that the Court is incapable of amending a will in law. Furthermore, the Defendants aver that the only child of the Deceased is one Pryze Einstein Bunag Chio born on the 24th July 2002 who was adopted by the Deceased and his wife on 6th December 2005 in civil side no. 241 of 2005.

 

  1. The Defendants pray this Court to dismiss the Plaintiff’s application with costs and to order the Plaintiff to undergo a DNA test to ascertain whether she is indeed the biological daughter of the Deceased.

 

Amendment to pleadings

 

  1. The pleadings (the Amended Plaint and Statement of Defence) were amended on 4th September 2023 on a motion by counsel for the Plaintiff supported by Defendants’ counsel, and with the Court’s permission. The amendment replaced “Jill Debra Cecile Laporte” by “Jill Debra Cecile Parcou” in the caption of the pleadings.

 

Evidence

 

  1. At the hearing, only the Plaintiff testified. The 2nd Defendant, though present in Court, did not testify but opted to cross-examine the Plaintiff through her counsel.

 

  1. Plaintiff testified in terms of the Amended Plaint. She is Jill Debra Cecile Parcou née Laporte, 50 years old and residing in England. She produced the Supreme Court’s Judgment in Laporte v Estate Parcou delivered on 11th November 2019 by which she was declared the biological child of the Deceased and the Court of Appeal’s Judgment in Parcou v Laporte delivered on 29th April 2022 which upheld the declaration of paternity. She confirmed that the application for declaration of paternity was only made after the death of the Deceased, and produced the death certificate of the Deceased. Plaintiff testified that following the Court of Appeal’s Judgment in 2022, she applied to the Chief Officer of the Civil Status to amend her certificate of birth to reflect her paternity and produced the amended certificate of birth.

 

  1. It was also testified that upon the declaration of paternity, Plaintiff made enquiries about the estate of the Deceased and learnt that he (the Deceased) left behind a will in which he appointed his wife as his sole heir and the executrix to his estate. Plaintiff produced a certified true copy of the transcribed Last Will and Testament of the late Julien Kaven Parcou registered on 12th December 2017. Plaintiff then sought information about the estate and her entitlement therein through the 2nd Defendant. She produced a letter dated 2nd June 2022 by which her Attorney wrote to Mr. Serge Rouillon, Esq (the then Attorney of the Defendants) requesting an amicable resolution for the equitable sharing of the estate of the Deceased. In response, the 2nd Defendant wrote to Plaintiff’s Attorney on 26th August 2022 to notify that she was in the process of filing set aside proceedings against the Judgment of the Court of Appeal and that she would prefer to wait until that decision. To Plaintiff’s knowledge, no proceedings have ever been brought to set aside the Court of Appeal’s Judgment. Plaintiff is aware that the Deceased and the 2nd Defendant have adopted one child. To date, 2nd Defendant has not given the Plaintiff any details about the estate of her late father.

 

  1. As an heir of the Deceased, Plaintiff wishes to be given information about her father’s estate and her commensurate share of the estate. Plaintiff stated that under law, half of the estate tends to go to the surviving spouse and the remaining half is divided equally among the children. She is therefore asking the Court to make an order to amend the Will of her late father so that she is granted one quarter share of his estate and for all information that an heir requires from an executor so that she is aware of the extent of the estate and of her share. She also seeks in terms of her third prayer that, in the alternative, she is paid her one quarter share of the estate. She also prays for the costs of the proceedings because she had to file this case when the matter could have been resolved outside the court.

 

  1. The Plaintiff also testified that she does not accept the Defendant’s stance that she is not entitled to any share of her father’s estate in the absence of a DNA test.

 

  1. In cross examination, the Plaintiff testified that she is not aware of the circumstances in which the Will of her late father was written and of the reasons why she was not included in the said Will. Plaintiff disagreed that at the time of the making of the Will on 15th October 2016, she was not legally an heir of the late Julien Kaven Parcou since the declaration of paternity was only made on 11th November 2019 and upheld by the Court of Appeal on 19th April 2022. Plaintiff maintained that having been declared the child of the late Julien Kaven Parcou, she is entitled under the law, as a reserved heir, to a share of the estate.

 

  1. The Plaintiff conceded that the declaration of paternity was obtained after the Will had been made and after the death of the Deceased. She explained that she did not make the application during lifetime of the Deceased as she lives in England and it did not cross her mind to do so at the time. As far as she is concerned, she is the daughter of the Deceased.

 

  1. The Plaintiff also conceded that the declaration of paternity was made in absence of a DNA test. She testified that even in the absence of a DNA test, the court was satisfied on the basis of the other evidence adduced in the proceedings that she was the child of the Deceased. Apart from herself and an adopted child, the Plaintiff is not aware if the Deceased had any other biological children. As far as she is aware, there are no evidence that the Deceased was unable to conceive in the 1970’s when she was conceived and born. Plaintiff is now 50 years old whereas the 2nd Defendant only came into the Deceased’s life some 15 years ago.

 

Submissions

 

  1. The parties submitted to the Court in writing. Their respective submissions address three main issues, namely: (i) the validity of the Will; (ii) the power of the Court to amend, or interfere with, a Will; and (iii) whether the failure of the Plaintiff to adduce evidence of valuation of properties comprised in the estate is fatal to her case.

 

Plaintiff’s Submissions

 

  1. On the first issue, Counsel for the Plaintiff submitted that the Amended Plaint does not impute the validity of the Will but seeks a rearrangement of the dispositions made therein pursuant to Article 920 of Cap 33, to cater for the fact that the Deceased had reserved heirs who have been excluded. It is also submitted that the law does not apply solely to known reserved heirs but to all reserved heirs who are excluded. A declaration of paternity is retroactive to the birth of a child, and this has the effect of declaring the child as having always been a child of the deceased. Thus, Plaintiff is deemed a child who existed at the time of opening of Deceased’ succession, and is entitled to a share of the estate as a reserved heir. On the second issue, it is submitted that Article 920 of Cap 33 is unambiguous. Dispositions in excess of the allowable portions must be reduced. Relying on the case of Desaubin & Ors v Sedwick SCA 12 of 2012, Plaintiff’s Counsel submitted that the Court has the power to intervene to reduce dispositions by will where that reduction is not done by the executor. On the third issue, Counsel for the Plaintiff distinguished the present case from the case of Reddy & Anor v Ramkalawan [2016] SCSC 31 relied on by the Defendants. Counsel for the Plaintiff submitted that the case of Reddy concerned a disguised donation while the present case concerns a Will. Further, in the present case the 2nd Defendant did not provide the Plaintiff with a copy of the inventory as she is obligated to do so under Article 1027 of Cap 33 despite Plaintiffs letter. In the circumstances of the present case the valuation will only serve an academic purpose since the whole estate has been bequeathed to the 2nd Defendant. Counsel relied on the Court of appeal case of Bibi & Ors v The Estate Bibi (Civil Appeal SCA 73/2019) [2022] (16 December 2022) to submit that where there was nothing else left for the reserved heirs, it was not fatal that the value of the estate and gifts had not been established.

 

Submissions on behalf of 1st and 2nd Defendants

 

  1. On the first issue, Counsel for the Defendants submitted that at the time the Deceased made his Will, the Plaintiff had not yet been declared the Deceased’s child. Therefore, the Will is legally valid. On the second issue, it is submitted that the Court cannot amend the Deceased’s Will as is being sought by the Plaintiff. The Court can only interfere with the Deceased’s Will if it is proven that the Will was invalid in law, which is not the case here. On the third issue, Defendants’ Counsel relied on the case of Reddy & Anor v Ramkalawan [2016] SCSC 31 to submit that since it is the ‘value of the immovable property’ that is the subject matter of an action for the reduction of a gift and its return to the hotchpot, it was incumbent on the Plaintiff to first adduce evidence of the value of the immovable property before seeking a share thereof. Failure, to do so is fatal to the Plaintiff’s case. Defendants’ Counsel also relied on the Supreme Court case of Bibi & Ors v Estate of Bibi (CS26/2017) [2019] SCSC 1328 (26 November 2019) to emphasize that the lack of evidence as to the total value of the estate and properties was fatal to Plaintiff’s case. It is further submitted that 2nd Defendant cannot be faulted for being the sole beneficiary of the bequeaths made in her favour in the Will. Counsel stressed, relying on Reddy (supra) that there is no law that prevents a person from giving away all his property during his lifetime (gifts inter vivos) or after his death through a will. Counsel also stressed that: “There was nothing stopping the Deceased from bequeathing some or all of his property to the Plaintiff if indeed that was his wish”. The only conclusion to be drawn from his failure to do so is: “either the Deceased did not know that the Plaintiff was his child or he did not wish to bequeath any property to her irrespective of knowledge that she was his child or otherwise”. The Defendants’ submission concludes that the Court is incapable of granting the orders sought in law to “amend” the deceased’s Will as the Will was valid at the time it was made since the Plaintiff had not yet been recognized as the child of the Deceased. According to Defendants’ Counsel there is no reason for the Court to depart from the well-established principles enunciated in the case of Reddy and Bibi (supra). Thus, the Court should dismiss the Plaintiff’s action with costs.

 

  1. The Defendants made no submissions in respect of the prayer that Plaintiff should submit to a DNA test as sought in the Statement of Defence.

 

Law and Analysis

 

  1. Based on the pleadings, evidence and submissions of counsel for the respective parties, the following issues arise for determination –

 

  1. Is the last Will and Testament of the late Julien Kaven Parcou in contravention of the laws

of Seychelles existing at the opening of his succession on 20th October 2017?

 

  1. Can this Court order the reduction of the dispositions of the said Will to ensure that the

Plaintiff, receives her rightful share of the estate of the late Julien Kaven Parcou?

 

  1. Is the Plaintiff entitled to one quarter share of, or at all to, the estate of the late Julien

Kaven Parcou?

 

  1. It is pertinent to note here that the Will of the Deceased became applicable on 20th October 2017 on his death and opening of his succession. At the time, the Civil Code of Seychelles Act, Cap33 (hereinafter referred to as “Cap 33”) inclusive of provisions on forced heirship was in force. I also note that the Plaintiff filed a plaint in the Supreme Court for the simultaneous declaration of recherche de partenité and desaveau de partenité in 2018 and obtained Judgment in her favour in 2019. The decision was appealed to the Court of Appeal which upheld the Supreme Court’s declaration in its judgment delivered in 2022. In between the filing and determination of the appeal, the Civil Code of Seychelles Act, 2020 (hereinafter referred to as the “new Civil Code”) was enacted to repeal Cap 33. The new Civil Code came into force on 1st July 2021. It is therefore the law in force at the time of opening of the succession of the late Julien Kaven Parcou, notably Cap 33, that applies to the determination of the issues enumerated above.

 

  1. Is the last Will and Testament of the late Julien Kaven Parcou in contravention of the laws of Seychelles existing at the time of opening of his succession on 20th October 2017?

 

  1. The Amended Plaint avers that the dispositions of the Will in making the 2nd Defendant his sole legatee contravened the law, and prays, inter alia, for a declaration to that effect. Plaintiff’s testimony establishes that having been declared the child of the late Julien Kaven Parcou she became entitled to receive a share of his estate. The evidence shows that there is also an adopted child.

 

  1. Article 731 of Cap 33 stipulates that –

Succession shall devolve upon the children and other descendants of the deceased, his ascendants, his collateral relatives and upon the surviving spouse in accordance with the order and rules hereinafter established.”

(emphasis added)

 

  1. Where a person dies testate, Article 913 of Cap 33 limits the disposable portion of the succession as follows –

 

“Gifts inter vivos or by will shall not exceed one half of the property of the donor, if he leaves at death one child; one third, if he leaves two children; one fourth, if he leaves three or more children; there shall be no distinction between legitimate and natural children except as provided by article 915-1”

(emphasis added)

 

  1. Thus, under Cap 33 it is mandatory for the testator to leave a portion of his estate to his children, whether legitimate or natural subject to their disqualification to inherit under Article 727. A testator cannot bequeath his entire estate to his wife where he also leaves behind children.

 

  1. I disagree with the submission of Defendant’s Counsel that the dispositions made solely in favour of the wife of the Deceased are valid since at the time of the making of the Will and death of the Deceased the Plaintiff was not legally an heir. I note that the Defendants’ own Statement of Defence show that the late Julien Kaven Parcou and his wife had adopted one child in 2005. It also admits Plaintiff’s averment that she has been declared the child of the late Julien Kaven Parcou by the Court.


 

  1. As a result of the declaration of paternity, Plaintiff also became entitled to a share in the Deceased’ succession. Article 340 al. 4 of Cap 33 provides that –


 

“A child whose paternal descent has been proved under this Article is entitled to bear his father's name (in addition to a share in his father's succession under the title Succession).”

(emphasis added)


 

  1. As rightly submitted by Plaintiff’s Counsel, the Plaintiff is deemed an heir of the Deceased at the opening of his succession on 20th October 2017. Cap 33 not only allows for declaration of paternity to be made after the death of the father but also safeguards the right of the child in whose favour the declaration of paternity is made to a share in the father’s succession.

 

  1. Therefore, I find that the dispositions of the Will of the late Julien Kaven Parcou to the exclusion of his reserved heirs (being the Plaintiff and an adopted child) contravene Article 913 of Cap 33.

 

b) Can this Court order the reduction of the dispositions of the said Will to ensure that the Plaintiff, receives her rightful share of the estate of the late Julien Kaven Parcou?

 

  1. Article 920 of Cap 33 provides for the reduction of dispositions inter vivos or by will where such exceeds the disposable portion –

 

Dispositions either inter vivos or by will which exceed the disposable portion shall be liable to be reduced to the size of that portion at the opening of the succession.”

(emphasis added)

 

  1. In the Amended Plaint and in her testimony, the Plaintiff states that an amendment is required to the Will of the late Julien Kaven Parcou. The Defendants have submitted that the Court does not have the power to amend a will in the manner sought by Plaintiff and the Court can only interfere if it is shown that the said will is invalid.

 

  1. Article 920 of Cap 33 refers to the “reduction” and not to amendment of dispositions inter vivos or by will. Nonetheless, I find that the averment of the Plaint, and the Plaintiff’s testimony, that the Will should be amended is not inconsistent with the term “reduction” in Article 920. In fact, by her second prayer the Plaintiff specifically seeks the reduction of the dispositions of the Will to ensure that as a reserved heir, she receives the reserved portion of the Deceased’s estate to which she is entitled. It leaves no ambiguity as to what is sought. It also leaves no doubt that the Court has the power, deriving from Article 920 et al., to read down or reduce the dispositions of a will where they contravene the provisions of Cap 33 in respect of reserved heirs and their entitlement. Courts in Seychelles have numerously been called upon to reduce dispositions inter vivos or by will because they exceeded the allowable portion: (see for examble Desaubin and others vs Sedwick,3Hall v Parcou4; Racombo v Sinon5)

 

  1. The Defendants have also submitted that the failure to produce a valuation or the inventory of the estate of the Deceased at the opening of the succession is fatal to the Plaintiff’s case.

 

  1. Article 922 of Cap 33 provides for the manner in which reduction of dispositions inter vivos or by will is to be made. It stipulates that –

 

“1. The reduction shall be made by taking into account the total asset value of all the property existing at the death of the donor or the testator.

 

2. After a deduction of the debts, the assets given by way of a gift inter vivos according to their condition when the gift was made and their value at the opening of the succession are added together. If the property has been alienated, its value at the time of the alienation and, if there is subrogation, the value of the converted property is taken into account when the succession opens.

 

3. The disposable portion of which the deceased was entitled to dispose shall be calculated on the basis of all these assets having regard to the class of heirs whom the deceased has left.

(Emphasis added)

 

  1. In the case of Bibi & Others v. The Estate of late Joseph S. Bibi6 the Court of Appeal, per Andre JA, endorsed the Supreme Court’s finding in Hall v. Parcou & Anor 7 that the failure to adduce evidence of the value of the estate and gifts inter vivos at the opening of the succession is not always fatal. The Court of Appeal held as follows –

 

36. In Hall v Parcou the deceased transferred all the property owned.

The Court held the following:

[31] The transfers of property to the Defendant should therefore not have exceeded one quarter of the Deceased's estate. The evidence before the court is that outside of the three properties transferred to the Defendant there is no other property left to distribute among the heirs. Hence, the entire estate has been transferred unlawfully to the Defendant. The three quarters share of the estate transferred in excess has to be brought back into the hotchpot for redistribution into four equal shares. It must be emphasised that Article 918 refers to the value of the property and not the property itself being returned to the hotchpot.”

………..

43. Therefore, the conclusion that can be made is that not providing evidence of the value of estate and gift is not always fatal to the case; what is fatal is failure to establish that the value of the alienated property exceeds the disposable portion. In cases where the plaintiff proved this element, even though valuation was not provided, the court ordered the excess to be returned to the estate. In other cases, this element was clear as there was nothing else left for the reserved heirs, unlike the present case. Therefore, it was crucial for the Appellants to show that the properties transferred to the Respondent exceeded the disposable value of the estate as it came to light during evidence that the estate had other properties. Since they have not done so, it was fatal to their case in circumstances where estate comprises not just the alienated property.

 

  1. The Court in Bibi (supra) also referred to the Supreme Court’s case of Racombo v Sinon (supra) wherein the Court, per Pillay J, ordered the reduction of dispositions by will despite the Plaintiff’s failure to produce the valuation of the estate of the deceased. The court ordered the reduction so that the reserved heirs – the two minor children of the deceased who had been excluded from his will - receive their entitled portion of the inheritance.

 

  1. In the present case, Plaintiff neither pleaded the value of the dispositions in the Will nor produced any valuation or inventory of the estate of the Deceased at the opening of his succession. She produced the Will of the Deceased wherein the following properties were bequeathed to the 2nd Defendant: (a) land parcels situated at Beau-vallon, Mahe, Seychelles, (b) Monies in banks accounts held with the Mauritius Commercial Bank in the name of Norman Car Hire and Travel Services Company Ltd, (c) Monies in bank accounts held with the Barclays bank Limited, (d) Monies held in personal accounts held with the Barclays Bank Limited, (e) all of the Deceased’ shares in Norman’s car Hire and Travel Services Company Ltd, (f) all of Deceased shares in the Seychelles Breweries, SACOS, Seychelles Commercial Bank and (g) his share in the dwelling house situated at ERF Morehill Township, Johannesburg, South Africa.


 

  1. There are also no indications in the Statement of Defence nor any evidence to suggest that the estate of the Deceased comprised of other properties. His entire estate as known to the Plaintiff is as per the Will produced. Plaintiff’s attempt to engage with the executrix amicably were stifled by the 2nd Defendant’s letter of 26th August 2022 produced in evidence. In the said letter, the 2nd Defendant informed that she was in the process of filing proceedings to set aside the Judgment of the Court of Appeal and would prefer to wait until such time a decision is made. There are no indications in the Statement of Defence nor any evidence that set aside proceedings were actually filed or are pending. According to the Plaintiff, to her knowledge no such proceedings have ever been filed. Plaintiff’s evidence is uncontroverted.

 

  1. I consider the Defendants’ insistence (relying on the case of Reddy v Ramkalawan (supra) that Plaintiff’s failure to adduce evidence of an inventory and valuation of all the properties that comprise the estate of the Deceased is fatal) to be misleading. Had the executrix engaged with the Plaintiff, then she would be in her right to insist upon production of the inventory and/or the valuation report of all properties of the Deceased at the opening of the succession. Where the representative of the estate fails or refuses to engage with the heirs entitled to a succession and thereby withholds information relating to the extent of the estate and the heirs’ entitlement therein, it would be unfair to expect the Plaintiff to produce evidence of the total asset value of the estate less the debts and the value of the alienated inheritance. I am satisfied that the last will and testament of the late Julien Kaven Parcou reveal the extent of the entire estate of the Deceased as bequeathed to the 2nd Defendant.

 

  1. I am also satisfied that the entire estate of the Deceased is comprised of only the properties set out in the Will. The entire estate was bequeathed to the 2nd Defendant. Two thirds of the estate should have been reserved for the reserved heirs of the Deceased. In the circumstances, I find that the dispositions of the Will in favour of the 2nd Defendant should be reduced to one third only after deductions of all debts of the succession.

 

c) Is the Plaintiff entitled to one quarter share of, or at all to, the estate of the late Julien Kaven Parcou?

 

  1. In the Amended Plaint, the Plaintiff avers that she is entitled to one quarter share in the succession of her late father. However, in her second prayer, Plaintiff seeks a reduction of the dispositions of the Will so that as a reserved heir, she receives the reserved portion to which she is entitled. The Defendants have submitted that Plaintiff is not entitled to any share in the estate of the Deceased as pleaded or in law.

 

  1. It is well established thatthe Will of the testator can only be given effect within the confines of the law and that “the disposition in the Will is subject to ‘la reserve’ provided for under Article 913 of the Seychelles Civil Code. The Will should be read down to the allowable portion only of the quotité disponible’”: Desaubin v Sedwick (supra).


 

  1. Thus, this Court is bound to award the Plaintiff the share that she is entitled to under the law and as prayed for in the Amended Plaint. In terms of Article 913 of Cap 33, where the deceased leaves behind two children, two thirds of the estate of the deceased go to the reserved heirs and no distinction is to be made between the legitimate and natural children of the deceased except as provided by Article 915-1.8 The said Article 915-1 finds no application in this case. The only child of the marriage was adopted in 2005. The Plaintiff was born in 1973. The Plaintiff’s birth affected neither the marriage of the Deceased and the 2nd Defendant nor the adoption of the child.


 

  1. Therefore, in applying Article 913 of Cap 33, two thirds of the estate of the Deceased go to the reserved heirs. His children, the Plaintiff and the adopted child. Since, the Plaintiff was born before the marriage of Deceased and 2nd Defendant and before the adoption of the child of the marriage, her share in Deceased’s estate is equal to that of the adopted child, namely one third.

 

Conclusion

 

  1. I therefore make the following orders –

 

  1. The dispositions of the last will and testament of the late Julien Kaven Parcou contravene the laws of Seychelles exiting at the time of opening of his succession on 20th October 2017 in that it bequeathed the entire estate to his surviving spouse to the exclusion of the reserved heirs.

 

  1. In terms of Article 920 of Cap 33, I reduce the dispositions of the last will and testament of the late Kaven Julien Parcou to the 2nd Defendant to the allowable portion stipulated under Article 913 of the same Cap 33, namely one third after deduction of all debts of the estates at the time of opening of the succession. The remainder two thirds of the estate go to the two children of the deceased who are his reserved heirs, namely the Plaintiff and the adopted child. The Plaintiff is therefore entitled to one third share in the estate of her late father Julien Kaven Parcou.

 

  1. I award costs of this suit to the Plaintiff.

 

Signed dated and delivered at Ile Du Port, Mahe this 4th day of June 2024.

 

 

 

_____________

A. Madeleine, J

1 Laporte v Estate of Parcou (CS128/2018[2019] (11 November 2019)

2 Parcou v Laporte (SCA63/2019) [2022] SCCA 13 (Arising in CA128/2018) (29 April 2022)

3 (SCA 12 of 2012) [2014] SCCA 20 (14 August 2014)

4 (CS/353/2009) [2017] SCSC 92 (7 February 2017)

5 (CS 124/2018) [2020] SCSC 155 (26 February 2020)

6 Civil Appeal SCA 73/2019) [2022] SCCA 76 (16th December 2022) (Appeal from CS 26/2017 SCSC 1052

7 (CS 353/2009) [2017] SCSC 92 (06 February 2017)

8 “Article 915-1When a natural child whose father or mother was married at the time of conception to another person, becomes entitled to the succession of his parent along with the legitimate children of that marriage, he shall be taken into account in the calculation of the disposable portion; but his part of the reserve shall only be equal to one half of what he would have receive if all the children, including the natural child, had been legitimate. The fraction of his part of the reserve, which represents the reduction, shall accrue exclusively to the children of the marriage which has been affected by the adultery; it shall be divided in equal shares.”

 

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