Where there’s a will, there’s a way
January is an important time of year. Many people take stock of their lives, roll up their sleeves and confront nagging problems. Resolutions are made both big and small: maybe to lose weight and go to the gym, or to make bigger decisions about the future of a personal relationship. Family lawyers are at their busiest at this time of the year.
It is also a time when people consider making a will. It’s an issue many of us prefer to avoid except in the context of a relationship change, or when we buy a home; but it is simple and stark. What will happen to my property on my death? The answer is simple too. If you die without a will (the technical term is intestate) there are rules under Jersey law that will determine who shall inherit your property. They may not operate in favour of the people you really want to benefit.
Another point to appreciate is that Jersey law differs from the laws that apply in the countries that make up the UK. Since the 1960s society’s attitudes towards domestic arrangements and matters such as illegitimacy or same sex unions have changed markedly, but in Jersey the legislation has not kept pace with the speed of change. As a result Jersey law is perhaps not as subtle or sophisticated as the law of other European countries, particularly in the realm of family matters.
Today, as we all know, families where mum and dad aren’t married are very common. Many people are also surprised to discover that in Jersey the law treats the property of men and of women differently. "Surely human rights exist to prevent discrimination on the grounds of gender?" they ask. That may well be so, and a thorough review is clearly over due, but to be fair to the States these are very sensitive issues and there is no clear consensus that a further erosion of the special status of the institution of marriage will be beneficial to society as a whole.
As if that weren’t enough Jersey law also distinguishes between a person’s immovable property (eg land, houses and flying freehold flats) and their movable property (just about everything else). So far as movable property is concerned it sits, somewhat uncomfortably, astride the continental and the British approach to dealing with such matters. On the continent fixed rights to a given share of a parent’s property are the rule. In Britain no such rights exist and instead a dependant who feels that the deceased’s will should have provided more generously for him has to make application to the Courts. Currently Jersey follows the continental approach and, although consideration has been given to doing things the British way, many argue that scrapping the simple certainties of the current system and compelling children to take court action to secure their share of their parent’s movable property is hardly a step in the right direction.
So what should you do? The answer is clear. If you have strong views on this matter and want to save your loved ones the anxiety of wondering what to so for the best you should make a will. If you don’t Jersey’s rules of intestacy will step in but this is a highly politicised area of the law and they may not now, or once reformed, reflect what you want to do for the best.
A simple example will help. At present if a woman dies intestate her children will have the right under Jersey law to share in her estate whether or not she was married to their father. All of her children will have equal rights. The same is not true for their father. If he has not married their mother then, unless he makes a will in their favour, his children will have no right to make a claim on his estate when he dies. The people who benefit from it will instead be his closest blood relatives, such as his brothers or sisters. Many are surprised to learn that, although illegitimacy no longer carries any social stigma, it can still result in such a practical disadvantage. After all, the uncles and aunts who receive a windfall from the death of their brother cannot be relied upon to forego their inheritance in favour of their nephews and nieces. A report was lodged with the States in 2003 considering alterations to this aspect of the law but the changes proposed have yet to materialise. In Guernsey, where such changes have recently been implemented, the new rules have left many unsure where they stand.
The only way to be sure that after his death, an unmarried father’s children will benefit from his estate is for him to make a will to direct what will happen to his property on his death.
This should be straightforward but will be complicated where the man has other children, possibly from a marriage. In this case he will only have rights to give a third of his property (other than immovable property, which he is free to leave as he chooses) to the children born outside of marriage. Legal advice is particularly important where a person’s circumstances are complicated in this way so as to establish what can and cannot be achieved.
There are, of course, other areas where Jersey law makes it important to proceed with caution. Unmarried partners have no right to inherit from their partner unless a will has been made. There’s no such thing in Jersey law as a "common law wife" Moreover for same sex partners, unlike the position in England, Jersey has not introduced the concept of the civil partnership which, once registered, gives the surviving partner rights over the deceased’s partner’s estate.
If you decide to bite the bullet and make a will it is vital that it be prepared and executed properly. This is one area where DIY is not to be recommended, especially because the do it yourself will forms sometimes seen in stationery shops come with explanatory notes for UK residents, not applicable to people whose home is in Jersey. It takes experience to ensure that your wishes are expressed clearly and without ambiguity and to make sure that all necessary contingencies, such as someone dying before you, have been catered for. Otherwise your plans could be misinterpreted or, worse still, lead to the very arguments within the family you had wanted to avoid.