Making a will in Jersey

Introduction
Preliminary questions and steps
What happens to your estate when you die?


Introduction

Often, the only contact that an individual will have with a lawyer is when giving instructions for making a will. This update provides a short guide to making a will in Jersey; it applies only to individuals who are domiciled in Jersey.

Domicile is not the same as either residence or ordinary residence. In Jersey, a person takes the domicile of his or her father at birth or, if illegitimate, of his or her mother. Upon marriage, women adopt the domicile of their spouse. It is possible subsequently to adopt a domicile of choice. A domicile of choice is adopted by taking up ordinary residence in a new country and doing so with the intention of remaining in that country indefinitely, even if you do not actually do so.

In Jersey, property is divided into immovable estate (referred to in this update as 'real estate') and movable estate (referred to in this update as 'personal estate'). Real estate consists of land and buildings on land (including fixtures and fittings, but excluding movable contents), including freehold property, and also leases for more than nine years and certain mortgages known as 'hypothèques conventionelles'.

All other property in Jersey is personal estate, which includes, for instance, moneys, chattels and all types of share, even those entitling the holder to occupation of a 'share transfer' flat or house. Different rules apply to wills of real and personal estate and, accordingly, it is the practice of most Jersey lawyers to prepare separate wills for real and personal estate.

Preliminary questions and steps

Should I make a will, and if so, do I need to consult a lawyer?
This question is looked at specifically later in relation to personal estate. However, it is important in any event to consider the benefits of making a will. When you die without a will, you die 'intestate' and your estate may be dealt with quite differently from what would have been the case if you had made a will. If you choose to make a will, it is essential that it is in correct form and properly witnessed to ensure its validity. As such, it is strongly advisable to instruct a lawyer to draw up your will.

Who can make a will and who should witness it?
To make a will, you must be of full age (ie, 18 years old or more) and of sound mind. You can make a will if you are under 18 years of age only if you are married, but even then you must be a minimum of 16 years of age. A will must be signed or acknowledged in the presence of two witnesses who must be present at the same time to attest (witness) the will. Witnesses can benefit under the will that they witness, or even be a close relative of either the person making the will or someone taking a benefit under the will; this may make the will invalid.

As regards real estate, one of the two witnesses must be either an advocate or solicitor of the Royal Court, a crown officer or a member of the States (Parliament) if the will is executed in Jersey, or a notary public if the will is executed outside of Jersey. Also, a will of real estate needs to be read aloud in the presence of the person making the will and the two witnesses.

Can I change my will?
A will can be amended as often as you wish. Wills should be revised as your personal circumstances change (eg, when you get married or divorced or have children).

Revoking a will
Revocation (cancellation) may take place at any time before the death of the person making the will. Revocation can be carried out by destroying the will, by executing a further will or codicil, or by the testator evidencing an intention to revoke (eg, by writing "This will is revoked" on the document). It is advisable to seek legal advice before revoking a will or part of it, so that the consequences of doing so are known to you before the act of revocation is carried out.

Appointment of an executor
You appoint an executor in respect of your personal estate, but not your real estate. The executor is the person who will administer your personal estate (ie, call in the assets and pay off the debts and distribute your property in accordance with your will). You may appoint anyone as your executor provided that he or she is of full age and sound mind. It would be preferable to appoint an executor resident in Jersey. You should check with the individual concerned that he or she is happy to act as your executor.

'Household effects'
This term means articles of household or personal use or ornaments normally situated in or around the matrimonial home, excluding:

• any motor vehicle;
• any articles used wholly or principally for business purposes;
• money or securities for money (eg, premium bonds);
• any single article or any single group of similar or related articles forming a set, having in either case a value of more than £10,000; and
• any article of personal use or ornament which is the subject of a specific bequest under the will of the deceased.

What if my spouse and I die together?
The Wills and Succession (Jersey) Law 1993 addresses inheritance questions in situations where two or more individuals die in circumstances in which it is impossible to determine which of them died first (eg, where a husband and wife have made wills leaving everything to each other and die in an accident together). Where both parties have made identical wills leaving their estates to the same person in the event of the death of their spouse, there is no problem. However, where each party has named a different person to benefit in these circumstances, the question arises as to which person will benefit.

Under the old law, there were rules to establish which party would be deemed to have died last in the event that there was no evidence as to which party had survived the other. Only the person named by the surviving party would therefore benefit (eg, Mrs Smith makes a will leaving her entire estate to Mr Smith, but should he pre-decease her, to charity A. Mr Smith makes a will leaving his entire estate to Mrs Smith, but should she predecease him, to charity B).

Under the old law, if Mrs Smith were deemed to survive Mr Smith, the estate of both Mr and Mrs Smith would go to charity A, and if Mr Smith were deemed to survive Mrs Smith, the estates of both Mr and Mrs Smith would go to charity B.

Under the 1993 law, if there is no evidence as to who died last, it will be deemed that they died simultaneously. The effect of this is that both parties' wills will take effect, and therefore that both parties named will benefit (ie, in the previous example Mrs Smith's estate will go to charity A and Mr Smith's to charity B). Jointly owned assets will be deemed to have been owned in equal shares. It is still possible to include a provision in your will as to who should be deemed to have died last in the event that there is no evidence to establish the point.

Children's rights to inherit
Under the Adoption (Jersey) Law 1965, adopted children have the same rights as natural children for the purposes of succession. However, stepchildren have no rights in the estate of their step-parent. Since January 2011 illegitimate children have had rights of inheritance from both their father and their mother. Previously, they had only rights of inheritance from their mother under the Legitimacy (Jersey) Law 1965.

What provisions can I put in my will in respect of my children?
In the event that both parents were to die leaving their minor children orphaned, it is not possible to provide absolutely in one's will for the appointment of a guardian, known in Jersey as a 'tuteur'. This power of appointment rests with the Royal Court, which will usually appoint the person chosen in court by a majority of seven electeurs.

However, it is possible to express a wish as to who you would like the tuteur to be. While the tuteur has legal responsibility for managing the property and affairs of the infant, he or she does not necessarily have day-to-day care and control of the child. You can express a further wish in your will or in a side letter as to who should have the day-to-day care and control of your children.

What happens to your estate when you die?

As to how you may leave your personal estate and real estate and as to what happens on intestacy, this update divides individuals into the follow categories:

• unmarried people without children;
• unmarried people with children;
• divorced people with children;
• married couples without children;
• married couples with children;
• couples living apart; and
• divorced couples.

Unmarried people without children
Real estate
You can make a will leaving your real estate to whomsoever you wish. If you do not make a will, your partner will not inherit your real estate as your spouse would if you were married. Your heirs, normally your brothers and sisters, will receive your real estate in equal shares. If there are no brothers and sisters, it can become complicated and the heirs will vary according to whether you acquired property by intestate inheritance or by other means, such as a contract of purchase or as devisee under a will.

Personal estate
You can make a will leaving your personal estate to whomsoever you wish. If you do not make a will, your partner will not inherit your personal estate as your spouse would if you were married. As with your real estate, your heirs - normally your brothers and sisters - will receive your personal estate in equal shares.

Unmarried people with children
Real estate
You can make a will leaving your real estate to whomsoever you wish. If you do not make a will, your children will inherit in equal shares.

Personal estate
If you make a will, but do not leave at least two-thirds of your personal estate to your children, they will be able to challenge that will so as to receive two-thirds as their minimum entitlement. If you die without a will, your children will inherit the whole estate in equal shares.

Married couples without children
Real estate
You can make a will leaving your real estate in Jersey to whomsoever you wish. However, if a husband makes a will but does not leave his real estate to his wife, she is entitled to the life enjoyment of one-third of her husband's real estate in any event (referred to as 'the right of dower').

Further, if a wife makes a will and does not leave her real estate to her husband, the husband in entitled to life enjoyment of all of his wife's real estate (referred to as 'the right of viduité'). This entitlement ends upon the husband's remarriage. In the event that you do not make a will, all of your real estate will go to your spouse.

Personal estate
If you do not make a will, all of your personal estate will go to your spouse. If you do make a will but do not leave your personal estate to your spouse, your spouse will be able to challenge that will and would receive the household effects (as defined earlier) and two-thirds of your personal estate.

Married couples with children
Real estate
You can make a will leaving your real estate to whomsoever you wish. In the event that you make a will but do not leave your real estate to your spouse, on your death your spouse will have a right of dower or viduité as the case may be.

If you do not make a will, your spouse and your children will inherit your real estate in equal shares. Furthermore, your spouse will also have the right to the life enjoyment of your matrimonial home.

Personal estate
If you do not make a will, your personal estate will be divided as follows:

You can dispose of the remaining one-third of your estate as you wish.

If on your death your personal estate, excluding household effects, amounts to less than £30,000 and you have not made a will, your spouse would be entitled to the full £30,000. If, however, you made a will leaving all of your personal estate to your spouse, your children can challenge that will and receive their entitlement of one-third of the estate.

Therefore, if your personal estate, excluding household effects, will inevitably amount to less than £30,000 and you desire to benefit your spouse to the exclusion of your children and there is a risk that your children may challenge your will, you should consider the advisability of making a will of personal estate at all or, if you have made such a will, of revoking the same. In fact, in an estate valued at up to £90,000, if your children were to challenge your will which left everything to your spouse, your spouse would be better off if no will had been made.

When considering whether you should make a will of personal estate, two very difficult considerations need to be addressed. The first is the likely value and extent of your personal estate as of the date of your death, and the second is the likelihood of your children challenging your will of personal estate.

These are clearly questions on which you will need to take personal legal advice, so that matters can be considered in light of your particular circumstances.

Claims
Wills of personalty are not invalid simply because the testator has not bequeathed his or her spouse or children their full entitlement as set out above. The spouse or children must bring an action in the Royal Court within a year and a day following the grant of probate to claim their entitlement. In practice, many spouses leave the whole of their personal estate to each other and to their children only if the other spouse has died first. Very few such wills are challenged by the children, although the likelihood of this happening increases if the surviving spouse is the children's step-parent.

Couples living apart
Where, on the death of one spouse, the surviving spouse and the deceased spouse were not living together and the surviving spouse had deserted the deceased spouse without cause or there had been a decree of judicial separation granted to the deceased spouse, the surviving spouse will not benefit from the estate of the deceased unless a will specifically leaves real or personal estate to that spouse.

Divorced couples
On divorce, any provision in a will which appoints the former spouse as executor/trix or leaves real or personal estate to that spouse in their capacity as spouse will be of no effect. However, notwithstanding the divorce, if one spouse wants to benefit his or her former spouse specifically in his or her will, this is permitted.

For further information on this topic please contact Michael H Clapham at Ogier by telephone (+44 1534 504 000), fax (+44 1534 504 444) or email ([email protected]).