In the matter of A (Curatorship) [2013] JRC 026 (01 February 2013)

judgment the COMMISSIONER: 1. A, who was born in 1934, and is therefore aged 78, requires a curator to be appointed, but an issue has arisen as to whom should be appointed to that role. We will refer to her as "the mother". Her family comprises her husband, B who is aged 78, and four children, two by her first marriage to C, who is now deceased, namely D, who is 56, and E, who is 55, and two by her second marriage to B, namely F who is 48, and G, who is 45.

2. Her assets comprise, firstly the life enjoyment of a substantial 11-bedroomed property formerly, we were told, run as a guesthouse, left to her by her mother. The reversion of that vests in the four children. B lives alone in the property. He is keeping it, he has informed us, wind and watertight but clearly it is in need of some repair. Secondly she has cash of approximately £130,000 and thirdly, a pension of approximately £450 per month. She lives at The Limes where the fees are £2,000 per month, or some £24,000 per year. Her financial affairs have been managed for some time by her eldest daughter, D, through the use of a joint account. This was set up, not by way of gift of any of the monies to D, but as a mechanism to enable D to pay her bills and generally discharge her liabilities. It is clear to us that all of the monies in that account belong, beneficially, to the mother.

3. Tensions have arisen within the family. B is aggrieved at the way he feels he has been side-lined from looking after his wife's affairs. When she had a stroke in April 2011, and he accompanied her to the hospital, he found that another member of the family, we presume D, had put her name down as next of kin. He says that the next day D took over his wife's affairs because, she said, she had been named as her executor in the Will. She apparently changed the locks and began to remove the mother's personal effects, chequebook, credit cards, and other financial documentation, to which he says she had no right. She then instructed the bank to send all documentation and correspondence to her. It was D, he says, who instructed the doctors to assess the mother as being of unsound mind and to commence the curatorship process without involving him in any way. In his view he should be appointed as her curator.

4. In her affidavit of 8 th January, 2013, D deposed that in early 2011, before her mother had a stroke, B had tried to persuade her to distribute the cash in the joint account to the mother's four children. She refused to do this and subsequently, she says, he has refused to make any financial contribution to or to assist with the mother's affairs in any way.

5. G, who has come over to the hearing today from Dublin, complains that his sister, D, has not kept the family informed or consulted with them over their mother's affairs and points out that her relationship with B is strained. He is therefore concerned as to the arrangements that would be made in relation to B, whether he should stay in the property or move elsewhere so that it can be let. He recommends his brother, E, as curator who, he says, will be more level-headed. The tensions in the family are such that G has suggested mediation, all of which has indicated to the Solicitor-General that an independent curator be appointed, notwithstanding the costs that will incur, and he has approached Mr Del Amo who is willing to undertake that role.

6. At the hearing today we have heard from B, D and G, not on oath, and we are very grateful to them all for their assistance and for the helpful information that they have given us. In our view the Court should always look first, if possible, to appointing members of the family who live in the Island, who are willing and capable of undertaking the role of curator and only if that is not possible or practicable or if any conflicts would be unmanageable, should an independent professional curator be appointed. This is for two reasons; firstly because members of the family will, we think, out of natural affection, be likely to devote more time and attention to the affairs and welfare of the interdict than a professional curator would be able to do; and secondly because of the cost of the appointment of a professional curator. It is of course only right that professional curators receive reasonable remuneration for their work as permitted by law but where the liquid funds are limited, as here, the effect upon the estate can be disproportionate.

7. Of the family members who would be available to be appointed and that would exclude G as he does not reside in the Island, we do not think that B should act as curator. We have some considerable sympathy for him in the way he appears to have been side-lined from his wife's affairs, but he is not in good health and the conflict he would have as curator between his own interests and those of his wife would, we feel, be too difficult for him to manage. D has looked after her mother's affairs for some time out of love and affection for her and she is to be commended for that. However it is clear that the relationship between her and B is now too strained to enable her properly to manage the quite difficult discussions over the terms upon which he should leave the property, which he accepts in principle that he may have to do, and the extent to which the curatorship should support him in the future, if at all. He himself has very limited funds.

8. It is also clear from what we have been told that F would not want to undertake this role but E has indicated that in principle he would be willing to do so. D and G would be supportive of his appointment and B has a good relationship with him as we understand it. Unfortunately E was not asked to attend the hearing today but if he is willing to undertake the role and feels that any conflicts would be manageable, then we would be minded to put him forward for appointment, failing which we agree with the Solicitor-General that Mr Del Amo should take on that role, which he has confirmed he is willing to do. E should therefore make an appointment as soon as possible to see Mrs Michele Laurent, the Registrar of Probate, in order to have the role of curator fully explained to him, both generally and in this case. Having seen Mrs Laurent he should then attend upon the Court on a date to which this application will now be adjourned, and of which the Solicitor General will notify him. We invite the Solicitor-General to fix that date and to inform E of the Court's decision today. No Authorities Page Last Updated: 16 Aug 2015 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII