Ex Parte Jumaye (MA 127/2020 (Arising in XP 132/2014)) [2021] SCSC 222 (17 May 2021);

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Testate and Intestate Succession – Validity and fate of testamentary dispositions when legatee predeceases testator

CAROLUS J

Background

  1. The applicant Iqbal Hanif Jumaye has filed an exparte application by way of Notice of Motion supported by affidavit and relevant documents, seeking directions of this court pursuant to Article 825 read with Article 1028 of the Civil Code of Seychelles Act (“the Civil Code”).
  2. The applicant is the son and testamentary executor of the late Salima Said Jumaye born Ally (“the deceased”) who died testate on 17th June 2014. His testamentary appointment as her executor was confirmed by a Court Order of 5th November 2014 in Ex Parte No. 132/2014.
  3. In terms of her will made before Gerard Maurel, Notary Public, on 28th September 2005 and transcribed and registered on 1st August 2014, the deceased bequeathed her immovable properties to her five children Abbas Jumaye, Iqbal Jumaye (the applicant), Ibrahim Jumaye, Joera Thornton and Dahud Jumaye.
  4. She bequeathed to Ibrahim Jumaye:
  1. one quarter of her undivided half share in the land comprised in title no. V5340  (Clause 2(i)(a)); and
  2. an equal share (1/5th share) in her interest in the land comprised in title nos. V6015 and V5477 together with her five other children (Clause 3(c)).
  1. The applicant avers in his affidavit, although this is unsupported by any documentary evidence, that Ibrahim Jumaye passed away on 29th August 2011, prior to the death of the Deceased. He died intestate and is survived by his wife Mary Starline Jumaye and three children Rukaiya Ibrahim Tirant, Faizah Jumaye and Rasheeda Ibrahim Jumaye, his legal heirs. I note that this is not disputed by the heirs of Ibrahim Jumaye.
  2. The applicant expresses his belief that since Ibrahim Jumaye’s death (on 29th August 2011) preceded that of the deceased (on 17th June 2014), in terms of Article 1039 of the Civil Code the dispositions made by the deceased in her will (dated 28th September 2005) in favour of Ibrahim Jumaye are null. Further that the Civil Code does not clearly state whether the heirs of the late Ibrahim Jumaye become entitled by representation to the testamentary dispositions made to Ibrahim Jumaye.
  3. He avers that he requires guidance from the Court as to whether or not representation is applicable in the present case in order to properly and completely fulfil his duties as executor to the estate of the deceased, and that as a fiduciary he may seek directions from the court as to how to manage or administer the property of the deceased under Articles 1028 and 825 of the Civil Code.
  4. The applicant therefore seeks directions from this court as to whether the heirs of the late Ibrahim Jumaye become entitled by representation to the dispositions made in his favour in the deceased’s will.
  5. Although this is an exparte matter, given that any directions given by the Court would affect the interests of the heirs of the late Ibrahim Jumaye, they were given notice of the proceedings and were represented by counsel. It was agreed that the matter would proceed by way of written submissions which were duly filed by the parties’ counsels.

Analysis

  1. The first questions for determination of this Court is whether Ibrahim Jumaye’s death having preceded that of his mother, the testamentary dispositions made by her in favour of Ibrahim Jumaye are valid. Article 1039 of the Civil Code provides that:

Every testamentary disposition shall be null if the person in whose favour it was made does not survive the testator.

 

  1. Ibrahim Jumaye died on 29th August 2011. He predeceased his mother who died on 17th June 2014. In terms of Article 1039 therefore given that Ibrahim Jumaye did not survive his mother, the dispositions made in his favour in her will dated 28th September 2005 are null.
  2. Further in Dalloz, Encyclopedie Juridique, 2ᵉ Édition, Répertoire de Droit Civil, Tome III, Vo. Legs at paragraph 399, it is stated that “Le legs est caduc lorsque le legataire meurt avant le testateur (c.civ., article 1039)”.
  3. This gives rise to a second question namely whether the heirs of Ibrahim Jumaye are entitled to a share of the succession of the deceased by representation.
  4. Representation is defined by Article 718 as follows:

Representation is a legal fiction the effect of which is to put the representatives in the place, degree and rights of the person represented.

 

  1. If the effect of representation is to put the representatives in the place, degree and rights of the person represented” it stands to reason that they could only have the same rights that he did. If the effect of Article 1039 was to render null rights that he had under the will, then those same rights cannot be transferred to his heirs.
  2. In that respect Dalloz at paragraph 399 (supra)  goes on to state that:

Les libéralités testamentaires sont personnelles, c’est-à-dire faites en vue de gratifier une personne déterminée et elles ne peuvent être recueillies par d’autres. Il est donc nécessaire que le légataire soit vivant au jour du décès du testateur pour que son droit au legs s’ouvre en personne (C. civil., art. 1036). Une fois ouvert, son droit devient au contraire transmissible à ses propres héritiers ou autres ayants cause.

 

  1. In the same vein Jurisclasseur Civil, Articles 1039-1043, Legs at paragraph 15, states as follows:

Lorsque le légataire prédécédé laisse lui-même des enfants, cette circonstance ne fait pas, en principe, obstacle à la caducité du legs, celui-ci étant a priori considéré come exclusivement personnel … Il n’y a pas de représentation en matière testamentaire …

 

  1. It is clear therefore that testamentary dispositions being personal to the legatee cannot be passed on to the legatee’s heirs. For this to happen the legatee must be alive at the time of the testator’s death so that “son droit au legs s’ouvre en personne” meaning that the legatee himself becomes entitled to the legacy, and can then pass it on to his heirs. Since Ibrahim Jumaye was not alive at the time of the testator’s death, he never became entitled to the legacy and could not pass it on to his heirs
  2. However there is an exception to the nullity of testamentary dispositions provided for in Article 1039 of the Civil Code. In that respect Jurisclasseur (supra)  at paragraph 16 states:

Cependant, le legs ne sera pas caduc s’il apparait que le testateur a eu l’intention, en cas de prédécès de son légataire, d’appeler par substitution vulgaire les descendants de celui-ci. Et, d’après la jurisprudence, une telle intention n’as pas besoin d’être formulée expressément; elle peut se déduire soit des termes de la disposition, soit de l’ensemble des clauses du testament, soit même, d’après certains arrêts, des circonstances de la cause.

 

  1. The same is reiterated in Dalloz (supra) at paragraph 400:

Le legs toutefois ne serait pas caduc si l’intention du testateur de comprendre les héritiers de ce légataire et de les gratifier résultait clairement de l’ensemble du testament.”

 

  1. It appears from the above that although testamentary dispositions are personal to a legatee and cannot be passed on to his heirs, where the intention of the testator was for such testamentary dispositions to be passed on to the legatee’s heirs, such testamentary dispositions remain valid. In such a case the heirs of the legatee become entitled to the testamentary dispositions by the will (volonté) of the testator and not by representation (“Il n’y a pas de représentation en matière testamentaire”). Such intention of the testator does not have to be expressly stated in the will but may be deduced from the terms of the will or from “les circonstances de la cause”. Having examined the will of the deceased, I find nothing to show that this was her intention. Further there is no other evidence to show the same.
  2. But the matter does not end here. Succession includes both testate and intestate succession. This is made clear in Dalloz, Encyclopedie Juridique, 2ᵉ Édition, Répertoire de Droit Civil, Tome V, Vo. Succession which states:
        1. La succession est la transmission du patrimoine laissé par une personne décédé: c’est donc un mode d’acquérir par décès et a titre universel …

 

        1.  Il y a deux sortes de successions. Les unes sont dévolues par la loi: ce sont les successions ab intestat ou successions legales. Les autres sont dévolues par un acte volontaire du defunt, le testament …

 

  1. It is also explained at paragraph 4 that although the successions ab intestat and the successions testamentaires have much in common a distinction is made between the two in the Civil Code because of customary traditions. Hence they are dealt with separately: successions ab intestat under Title I of Book III under the title “Succession” and successions testamentaires under Title II of the same Book under the title “Gifts Inter Vivos and Wills”. We therefore have two types of successions operating side by side. The rules relating to intestate successions apply to situations where the de cujus does not leave a will, but even if he does leave a will if he does not dispose of all his property in that will, the remainder will be dealt with in accordance with the rules of intestate succession. With that in mind, it is my view that the property subject matter of the testamentary disposition to Ibrahim Jumaye which is null in terms of Article 1039, should be returned to the succession of the deceased and dealt with under the rules of intestate succession.  I note, in that respect that there is no statutory provision expressly stating what happens to a testamentary disposition which is found to be null as in certain jurisdictions.
  2. In such a case in terms of Article 731 the property returned to the succession of the deceased should devolve on her descendants, namely her surviving children (Abbas Jumaye, Iqbal Jumaye, Joera Thornton and Dahud Jumaye) and grandchildren (children of the late Ibrahim Jumaye) by representation. In terms of Article 745, the surviving four children of the deceased are entitled to ⅕ of such property. The heirs of the late Ibrahim Jumaye (excluding his surviving spouse to whom representation does not apply) are entitled to equal shares of the remaining ⅕ \.
  3. It is to be noted that unlike the case of testamentary dispositions to which representation does not apply when a legatee dies before the testator, in intestate succession if a child of the de cujus predeceases the de cujus, representation takes place in regards to the descendants of that child putting them “in the place, degree and rights of the person represented” (Article 739). Dalloz, Vo. Succession (supra) explains the following in that regard:

§1ᵉ. – Représentation successorale

 

83. En principe, la loi n’appelle à la succession dans un ordre d’héritiers donné, que les successibles du degré le plus proche (C. civ., art. 731 et 734). Mais cette règle aurait parfois des résultats choquant: ainsi lorsqu’une personne a plusieurs enfants qui ont eux-mêmes des descendants, il serait regrettable en cas de prédécés de l’un des enfants à son auteur, les descendants de cet enfant prédécédé fussent exclus par les autres enfants et ne pussent avoir aucune part a la succession de leur aïeul. La representation tend à empêcher ce résultat fâcheux.

 

84. … on peut définir la représentation un bénéfice  en vertu duquel un successible, qui n’est pas du degré le plus proche, est admis, en concours, au besoin, avec les successibles les plus proches, à recueillir la part qu’eût obtenu son auteur prédécédé. On appelle représentant le successible qui monte au degré le plus proche pour recueillir la part de son auteur. Cet auteur est le représenté.

 

  1. It also states at paragraph 87 that one of the conditions which must exist in regards to the représenté in order for representation to take place is that “Le représenté doit être mort avant l’ouverture de la succession: “On ne représente pas les personnes vivantes, mais seulement celles qui sont mortes naturellement ou civilement”…
  2. In the present case account must also be taken of Article 913 of the Civil Code which provides for the disposable portion of the succession which a donor may dispose of by gift inter vivos and by will. It provides as follows:

Article 913

 

Gift 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.

 

Nothing in this Article shall be construed as preventing a person from making a gift inter vivos or by will in the terms of article 1048 of this Code.

 

  1. Article 914 further provides that:

Article 914

 

In the preceding article the term 'children' shall include descendants of all degrees; nevertheless they shall only be taken into account in the place of the child whom they represent in the succession of the donor.

 

  1. In addition Articles 920 and 921 provide for the reduction of gifts and legacies a s follows:

Article 920

 

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.

 

Article 921

 

The reduction of dispositions inter vivos shall only be demanded by those in whose favour the law has provided the reserve, by their heirs or assigns; donees, legatees and creditors of the deceased shall not demand it nor shall they benefit from it.

 

  1. In the present case the disposable portion of Salima Said Jumaye’s property would amount to ¼ of the total value of her property at the time of her death, the remaining ¾ constituting the reserved portion which must go to her reserved heirs.  In terms of Article 913, Ibrahim Jumaye if he were alive at the time of his mother’s death would have been entitled, as a reserved heir, to a ⅕ share of such reserved portion. Because of his death his children are now entitled to the same by representation.
  2. Therefore if the value of the property which was bequeathed to Ibrahim Jumaye under his mother’s will and returned to the deceased’s succession, and to which the children of Ibrahim Jumaye are entitled to a ⅕ share as stated at paragraph 24 above, is less than the value of the share to which he would have been entitled as a reserved heir, then his children are entitled to file an action for reduction of the  testamentary dispositions made by Salima Said Jumaye on the ground that they exceed the disposable portion of her property.

Decision

  1. To conclude the children of the late Ibrahim Jumaye, namely Rukaiya Ibrahim Tirant, Faizah Jumaye and Rasheeda Ibrahim Jumaye are entitled by representation to equal shares of 1/5 of the reserved portion of Salima Said Jumaye’s property existing at the time of her death. The reserved portion amounts to ¾ of the total value of Salima Said Jumaye’s property at the time of her death. The share to which the children of the late Ibrahim Jumaye are entitled represents the share of the reserve that the said Ibrahim Jumaye would have been entitled to as a reserved heir had he not predeceased his mother, the said Salima Said Jumaye.

 Signed, dated and delivered at Ile du Port on 17 May 2021

 

 

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E. Carolus J