Will or not to Will
Nobody likes to think about death, particularly their own. However, making preparations for your death has many advantages. The primary benefit is that you get to decide (within certain parameters set out by Jersey law) who you wish to inherit your assets. If you do not make a Will, this will not happen, and the law dictates who will inherit from you and this will create a situation called an intestacy.
Another significant difficulty is that the law does not permit unmarried couples to inherit from each other without having a Will, therefore the death of a partner is likely to cause considerable hardship and uncertainty. In addition, if the unmarried couple has children they will need to make a Will to protect their interests. This is because illegitimate children currently only have the right to claim in their mother’s estate, but not their father’s (unless he made provision for them in his Will).
In order to avoid an intestacy in Jersey it is necessary to make two Wills, one for dealing with immovable estate and one for dealing with movable estate. A Will of Jersey immovable property deals with land and everything built on it, leases for over 9 years, flying freehold property and the benefit of certain mortgages. A Will of movable property deals with all other assets such as jewellery, furniture, bank accounts, shares (including those that relate to share transfer properties) and investments.
If you are domiciled in Jersey (a person’s domicile is in the place which they regard as home) and you die without a Will (intestate) leaving a surviving husband or wife and descendants the surviving spouse is entitled to the household effects, the first £30,000 of movable estate and half of the remainder. The descendants (children firstly) take the other half.
If there are no children, Jersey immovable property passes on intestacy to your spouse. If you do have children your spouse is entitled to an equal share to the property with each surviving child. If the property is shared amongst your spouse and children, your spouse is however also entitled to the life enjoyment of the whole of the matrimonial home (usufruit). If your spouse has pre-deceased you, your immovable property will be inherited by your children in equal shares.
If you are domiciled in Jersey, making a Will of movable estate differs from how this is done under English law as certain forced heirship rights (’légitime’) are given to your spouse and your children which cannot be removed even if you make a Will that ignores them. The surviving spouse and issue can claim against an estate if they have not been given their "one third share" (where there is spouse and issue) or their "two thirds share" (where there is either spouse or issue). The remaining third is freely disposable by will. Claims have to be made within a year and a day of the issue of the Grant of Probate.
A Will dealing with your movable property should appoint someone to be your executor. An executor is responsible for administering the estate, i.e. collecting assets, paying debts and expenses and distributing legacies and bequests to the beneficiaries. If you do not do this, the Court will appoint someone to deal with the task. You may appoint a family member or a close friend, or a professional executor (i.e. a company dealing with the administration of estates).
Wills are not effective until they have been registered in the case of immovable Wills or a Grant of Probate has been obtained in the case of a Will of movable estate.
Unlike movable property, you may leave your immovable property to whom ever you like, and this whether or not you are married. However, if you are married, your spouse would acquire some form of life enjoyment in your property. If a wife survived a husband, she would receive a life enjoyment of one third of her husband’s immovable property. This is known as a right of Dower. If a husband survived a wife, he would receive a life enjoyment of all his wife’s immovable property so long as there has been at least one child born of the marriage. This is known as the right of Viduité.
If your house is held in joint names for you and the survivor, then upon your death it will pass automatically to the other joint owner without any need for a Will. There is however another form of joint ownership, in equal undivided shares, in which case ordinarily 50% of the property belongs to one and 50% to the other and in the event of the death of one joint owner, the 50% passes by Will or on intestacy.
If you are domiciled outside Jersey the laws of your domicile will apply to movable property. If you own immovable property outside Jersey the laws of the country where that property is situated will apply.
As it is essential that Wills are in correct form and properly witnessed (in order to be valid), you should always consult a lawyer to advise on and prepare your Wills. There are no pre-printed Will forms suitable for use in Jersey. Whilst the above is intended to be an accurate guide to the basic law of succession in Jersey, it is no substitute for seeking proper legal advice.
Once you have made a Will you may change it as often as you wish. You can even cancel the entire document if you so decide.
A cautionary note must however be applied to the above, which is that the Jersey law which deals with the forced heirship rights (légitime) which apply to testate succession (where there is a Will) may shortly be changed.
The proposed amendments, if they are voted into law, will abolish the fixed shares of légitime where there is a challenge to a Will, and will substitute for them the ability of dependents of the deceased to claim that provision should be made for them by order of the Royal Court if the provision in the Will is not adequate. The rules of succession on intestacy will not be affected where your only dependents are a spouse and children, however it seems likely that any other dependents could apply to the Court for provision to be made for them.
Furthermore, the proposed new law will, if brought into force, abolish the present distinction between the rights of legitimate and illegitimate children in succession matters.
If the law is changed, publicity will no doubt be given to the changes in the local media.
Zoe Blomfield
Jersey Solicitor
April 2007