WHAT IS A WILL?
A Will is a legal document in which you set out how you would like your estate to be dealt with after your death. It contains the names of the individuals or institutions whom you want to receive your assets. Your property and personal possessions are collectively referred to as your estate.
As Jersey law treats movable and immovable estate differently for succession purposes we need to consider them separately. Your movable estate includes bank accounts, jewellery, furniture, cars, life insurance proceeds and shares (including shares in a property holding company entitling the owner to occupy a share transfer apartment). Your immovable estate comprises freehold property in Jersey. However, it also includes commercial premises, farms and fields, contract leases for more than nine years and flying freehold apartments. Different rules apply to movable and immovable estates so it is therefore possible and advisable to make separate Wills.
WHY MAKE A WILL?
Even if the value of your estate is small, there are several important reasons why you should make a Will. On a practical level, a Will provides certainty for your family and friends at a time of emotional distress as it tells them how you wish your estate to be dealt with. On a legal level, it ensures that your estate is distributed in accordance with your wishes after your death.
Previously, the term 'descendants' under Jersey law excluded illegitimate children of a man. The law changed on 29th January 2011 giving all legitimate and illegitimate children equal rights in respect of inheritance. However, this change does not apply retrospectively. It will only apply (1) in cases where the deceased did not leave a Will – if the death occurred after the change in the law; or (2) in cases where the deceased did leave a Will – if the Will was made on or after the change in the law (or if a Codicil was made on or after this date confirming an earlier Will). Therefore, if there are illegitimate children in your family you may wish to consider updating your Will if it was made before the change in the law.
If you die without having made a valid Will, you are said to have died intestate and in such cases statutory law is applied and your estate will be distributed in accordance with the terms of the Jersey law of intestacy which may differ from what you want. It is recommended therefore that you seek legal advice and write a Will to avoid this.
CAN ANYONE MAKE A WILL?
To make a Will a person, known as the testator, must be of full age (18 years old or over) and of sound mind. However, an exception to this rule is a married minor, who is able to make a valid Will.
WHAT CAN MY WILL DEAL WITH?
Most people want to keep their Will as simple as possible and often give the whole of their estate (known as the residue) to one or more persons such as a spouse/civil partner or children. You can also make gifts of specific items such as jewellery or sums of money in your Will.
You can choose whom you want to be your executor, you can name a guardian to care for your children and you can give directions for your funeral. The role of executor is explained in more detail below.
WHAT IF I WANT TO ALTER MY WILL?
It is possible to make straightforward changes to a Will by signing a document known as a Codicil. However, if you require more substantial changes it may be simpler to prepare a fresh Will. The formalities for executing a Codicil are the same as for a Will and you should therefore seek legal advice to ensure that everything is done correctly.
WHAT ARE THE LEGAL REQUIREMENTS?
If you own immovable estate you should make two Wills, one covering your Jersey immovable estate and the other covering all of your other assets. After your death the Will of Jersey immovable estate is registered in the Public Registry while your executors obtain a Grant of Probate to your general Will which authorises them to administer your estate.
Jersey law stipulates certain legal requirements in relation to making a Will and if these are not complied with, it may mean that the Will is invalid. It is recommended therefore that you seek legal advice and have a Will drafted professionally by a lawyer.
A Will covering estate other than Jersey immovable property should be signed or acknowledged by the testator in the presence of two witnesses who are both present at the same time. These witnesses should not be beneficiaries under the Will or be close relatives of the testator and should be persons of full age and of sound mind.
A Will of immovable estate must be read out loud to the testator by a Jersey Advocate (or other suitably qualified witness) in the presence of one other witness who must be of full age and of sound mind.
HOW MUCH DOES IT COST?
The cost of instructing a lawyer to prepare a Will really depends on how complicated the Will is. We would be happy to provide you with an estimate for drafting your Will.
WHAT IS AN EXECUTOR?
An executor is a person, persons or company that is appointed in a Will to carry out the personal wishes of the testator as expressed in the Will. You can have more than one executor. Every Will of movable estate should appoint an executor whose duties will be set out in that Will. An executor obtains probate of the Will and is obliged to collect in your assets and to distribute them in accordance with the terms of your Will. Anyone can be appointed as an executor if of full age and of sound mind, however, it is advisable to check that your intended executor is happy to carry out the role before appointing them. Your lawyer will generally be prepared to act as your executor if you wish. There is no executor of a Will of Jersey immovable estate.
DO I HAVE TO LEAVE MY ASSETS TO MY FAMILY?
No, you do not. However, it is important to be aware that if you make a Will of movable estate excluding your spouse/civil partner and/or child/children or you choose to leave them less than their legal entitlement, then a claim can be made against your executor by the aggrieved spouse/civil partner and/or child/children. This is known as légitime and the extent of the claim is as follows:
- A spouse/civil partner can claim household effects and two-thirds of the net movable estate if there are no children.
- If there are children then the spouse/civil partner's share is restricted to one-third of the net movable estate and the children can claim another one-third share of the net movable estate.
- If there is a child or children but no spouse/civil partner, then the child or children are entitled to claim two-thirds of the net movable estate.
- In each of the above cases the remaining third of the estate passes in accordance with the terms of the Will.
- If you have neither spouse/civil partner nor descendants, you have full testamentary freedom to leave your movable estate assets to whomever you wish.
Légitime must be claimed formally through the Royal Court within a year and a day of the Grant of Representation having being issued. Usually a Will is only subject to légitime challenges if a degree of acrimony exists, perhaps where there is a family feud or a second marriage.
The phrase "household effects" is defined by the Wills and Succession (Jersey) Law 1993 (as amended) and means articles of household or personal use or ornaments normally located in or around the matrimonial home, but this is subject to some exceptions such as motor cars; money; items; sets of items over £10,000 and items used wholly for business purposes.
A person will usually die leaving at least some debts such as outstanding bills or an income tax liability. The estate is liable for these debts and also for funeral expenses which are deducted from the assets to calculate the value of the net movable estate for probate purposes.
The general rule is that by making a Will you can leave your immovable estate to whoever you choose. However, in respect of your immovable estate, if you are a married man and make a Will and leave a widow then she is entitled to her dower right of a life enjoyment of one-third of the immovable property that you own. This contrasts with a surviving husband's right to life enjoyment of all of his late wife's immovable property provided that there had been a child born of the marriage, known as his viduité.
Under the Civil Partnership (Jersey) Law 2012 which came into force on the 2nd April 2012 a surviving civil partner of either sex was given the rights to claim dower as opposed to viduité.
WHAT HAPPENS IF I DO NOT MAKE A WILL?
If you die without leaving a Will you are said to be intestate. The following is an outline of the statutory provisions that will apply in an intestate estate.
In respect of your immovable estate:
- If you leave a spouse/civil partner with no children then your surviving spouse/civil partner is entitled to inherit all of your immovable estate.
- If you leave a spouse/civil partner and children then your surviving spouse/civil partner is entitled to life enjoyment of the matrimonial home and your spouse/civil partner and each of your children share the ownership equally.
- If you leave children but no surviving spouse/civil partner then your children will share the whole of your immovable estate equally.
- In respect of your movable estate:
- If you leave a spouse/civil partner but no children then your surviving spouse/civil partner is entitled to receive the whole of the movable estate.
- If you leave a spouse/civil partner and children then your surviving spouse/civil partner is entitled to receive the household effects, the first £30,000 and a half share of the remainder. Your children receive the remaining half share equally between them.
- If you leave children but no surviving spouse/civil partner then your children will receive the whole of your movable estate equally.
DOES SEPARATION OR DIVORCE MATTER?
Yes it does. If you are divorced or have obtain a decree of judicial separation against your spouse/civil partner or if he or she has deserted you without good cause then the surviving spouse/civil partner loses their entitlement to your estate unless you make express provision in your Will to the contrary.
WHAT HAPPENS TO MY WILL OF JERSEY IMMOVABLE ESTATE WHEN I DIE?
As soon as your Will of Jersey immovable estate is registered in the Public Registry, title to your immovable property passes to those persons you have named in your Will of Jersey immovable estate, who are known as devisees.
If you leave your matrimonial home to your spouse/civil partner or all of your immovable property to your closest relatives in the way that they would inherit your estate had you died intestate, then there is no stamp duty payable. Otherwise stamp duty is payable on registration of the Will on sliding scale of up to 3% of the value of the property.
WHAT IF MY PARTNER AND I ARE NOT MARRIED?
Jersey law does not recognise common law spouses so they will have no right to your estate is you die intestate. You can provide for your partner in your Will.
WHAT IS A GRANT OF PROBATE?
A Will of movable estate does not take effect until it has been proved in Court and a Grant of Probate issued. Probate is the order of the Court which confirms that the Will is valid and confirms the authority of the executor to administer the estate of the deceased. The executor will be required to swear an oath in Court to confirm that he will administer the estate both properly and honestly and in accordance with the terms of the Will.
CAN I APPOINT GUARDIANS?
In the event that your children may be under the age of 18 years at your death, you can state in your Will of movable estate whom you would like to act as their guardian. Jersey law also provides for a tutelle to be set up to manage the funds and any property left to minor children. You can express a wish in your Will that certain persons be appointed to any tutelle that needs to be established.Wills For Jersey Residents
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.