1. The Laws Of Inheritance
The law of inheritance in Guernsey is Norman in origin. There is little or no relationship or similarity to the English law on the subject. No area of Guernsey law is more firmly grounded in our native soil. The essential element of the law of inheritance is the preservation of family property, whether personalty or realty.
When considering the law of inheritance one must distinguish between realty (immoveables) and personalty (moveables) as the law relating to inheritance of realty is quite different from the law relating to inheritance of personalty. Realty consists basically of land and structures built on the land. Personalty consists of money, stocks and shares, insurance policies, motor-cars, etc.
The Applicable Law
When a person dies the question must be asked whether Guernsey law or another law should be applied to the winding up of his estate. Even in this respect the considerations to be given to personalty are different from those to be given to realty. In the case of personalty the question of succession is governed by the law of the deceased's domicile. Domicile is the place where a person has his permanent home. If a person leaves a place and settles in another with the intention of making that second place his permanent settled home then the law of that place becomes his `personal law'. So if someone leaves England and settles in Guernsey with the intention of making Guernsey his permanent settled home, the law of Guernsey will govern the succession to his personal estate on his death (but he may be deemed under the law of another jurisdiction to be domiciled there for tax reasons).
As far as realty is concerned, it is the law of the place where the realty is situated that governs succession to such realty on death. So if a person dies domiciled in Guernsey leaving a house in Jersey then it will be the law of Jersey which will apply to the rights of succession to that house.
Methods Of Inheritance
A person can inherit from another person either (1) by operation of law or (2) under the will of the deceased. A person may take possession by operation of law because either (1) the deceased left no will, (2) the will was invalid or (3) the will exceeded the deceased's testamentary powers. This last point is particularly important in Guernsey where a person does not have free disposition of his estate (whereas in England a person can dispose of all his property by will subject to the Family Provision- Acts).
Two Sorts Of Wills
If a person in Guernsey wishes to dispose of both Guernsey realty and personalty it is necessary to make two wills, one relating to the realty and one relating to the personalty. If a will purports to dispose of both Guernsey realty and personalty in the same will then it is invalid to the extent that it disposes of realty if such a will is executed in the Bailiwick of Guernsey.
Wills Of Guernsey Realty
Wills of realty executed in the Bailiwick of Guernsey have to be executed in the presence of two Jurats of the Royal Court (or their equivalent in the islands of Alderney or Sark). Such wills have no executor. The devises contained in the will devolve by operation of law immediately on death, subject to registration of the will. When a person dies leaving a will of realty an application is made to the Royal Court for the will to be registered on the Greffe records and the will becomes a title deed to the property mentioned in it. Where wills of Guernsey realty are executed outside Guernsey, Alderney or Sark the above restrictions do not apply, namely, realty and personalty can be I disposed of in the same will and, obviously, Jurats need not attest the signatures.
Wills Of Personalty
These are executed in the same way as wills in England, that is, in the presence of two witnesses both present at the same time. However, in Guernsey there is the additional advantage that in the case of a "holographic will" no witnesses are needed but the will must be signed and dated. A holographic will is a will which is written in its entirety in the handwriting of the testator. Printed will forms available from stationers cannot therefore become the basis of holographic will.
Succession To Realty
Where a deceased has left no will (that is, he dies intestate) the realty will pass to the deceased's children, if more than one in equal shares between them, with representation if a child has died leaving grandchildren. If there are no children or grandchildren the brothers and sisters take, then nephews and nieces and lastly parents and grandparents. On intestacy a surviving spouse never takes the property (it stays on the deceased's side of the family) but he or she takes a life interest in (at least) one half.
The purpose of a will of realty is either to make a testator's wishes explicit or to change the devolution which would take place according to law if the deceased had made no will. Guernsey has always been very strict regarding disposition of realty on death and the principle still remains that a person cannot leave his real property outside the family. The Law of Inheritance, 1954, provides that if a person leaves children then he can only leave his realty to his spouse, descendants, illegitimate children and stepchildren and their descendants or any one or more of such persons. A spouse must get a life interest in (at least) one-half of the realty, the colloquial term "life interest" meaning enjoyment until death or re-marriage.
Succession To Personalty
If a person dies intestate and if he leaves:
- a spouse but no children, the spouse will take one-half of the personalty and the remaining one-half will pass to his family (brothers and sisters, nephews and nieces, and parents),
- children but no spouse, the children take the whole of the personalty (in equal shares between them), and
- both a spouse and children, the spouse will take one-third of the personalty and the children two-thirds.
As in the case of realty, Guernsey law imposes severe restrictions on the disposition of personalty by will in order to ensure that the greater proportion of the estate stays within the family. Even if a person domiciled in Guernsey wishes to leave all his estate outside the family he is subject to the following restrictions. If he dies:
- leaving both a spouse and children, the spouse must take one third of the personalty and the children must take one-third and he can dispose of the remaining one-third by will as he wishes;
- leaving either a spouse or children (but not both classes) then such spouse or children (between them) must take at least one-half of the personalty and he can dispose of the remaining one half as he wishes;
- leaving neither a spouse nor descendants, he can dispose of his entire personalty by will as he wishes. A spouse's entitlement may be varied by a marriage settlement made before marriage. A spouse can waive his or her right to entitlement if such waiver is made before marriage, but not afterwards.
2. The Administration Of The Estates Of Deceased Persons
Grants of probate are made to persons named as executors in a Will. Grants of administration, on the other hand, are made to persons, who are not named as executors, to authorise them to administer the estate of a person who has either died intestate (that is, without leaving a will) or else where the executor named in the will is unable or unwilling to be sworn. Grants of probate and administration are issued by the Ecclesiastical Court of the Bailiwick of Guernsey, the jurisdiction of which includes Alderney, Sark and the smaller islands of the Bailiwick.
Grants Of Administration - Intestacy
Grants of Administration are normally granted to one or more persons who are entitled to share in the estate of a deceased person who has died without leaving a will or to a person (individual or company) acting as Attorney for such person or persons.
The requirements of the Registrar are:
- A death certificate.
- A declaration of the total value of the assets (excluding realty).
- The name, address and occupation of the proposed Administrator.
- A bond in an amount equal to twice the value of the assets, given by the proposed Administrator in favour of the Court, guaranteed by two Sureties, or if the guarantor is an Insurance Company, by the proposed Administrator and the Insurance Company.
The proposed Administrator swears on oath before the Court that the deceased person has died without leaving a will and that he (the Administrator) will administer the estate according to law.
Occasionally in small estates a bank or insurance company holding assets will be willing to transfer the assets to members of the family against a simple indemnity without taking out a grant of probate or of administration.
Grants of Administration of estates of persons living outside the Bailiwick of Guernsey may be granted to persons outside the Bailiwick who have received a Grant of Administration from, say, the UK. or some other country. In the case of the U.K., production of a copy of the UK. Grant of Administration certified and sealed by the U.K. Probate Registry is accepted. In the case of other countries the Registrar will also require a certificate from a practising lawyer of that country, further certified by the British Consul as to the laws of inheritance of that country.
Assets situate in Guernsey owned by overseas residents are usually held by local finance companies or trust companies. In such cases the finance company or trust company will apply for Grants of Administration as Attorney Administrator for the foreign administrator or executor to enable him to deal with the Guernsey assets. The Registrar will prepare a Power of Attorney to be forwarded to the beneficial owner for completion before a Notary and certified by a British Consul.
Grants Of Probate - Wills
Where the deceased person has left a Will the procedure is for the most part simpler than in the case of intestacy. The testator has usually named an executor to administer his estate and carry out his wishes. The person named as executor, if he accepts the executorship, also accepts the responsibility to administer the estate according to law in accordance with the terms of the will. He can in certain circumstances renounce his executorship but to do so he must on no account have previously intermeddled, tacitly or otherwise, in the estate. Before the executor is sworn the Registrar examines the Will to ensure that it has been properly executed, dated and witnessed.
Where a Will has been proved outside the UK, the Registrar may accept the foreign grant if it is accompanied by a certificate from a practising lawyer of the foreign country to the effect that it is in accordance with the laws of that country, such certificate to be countersigned by a British Consul. If the Will is in a foreign language the foreign probate must be accompanied by a true and accurate translation also certified as such by a British Consul.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.