Society and culture have changed dramatically, so that nowadays - even in the midst of a credit crunch - on the whole people are better off. Gone are the days when only those who were rich and wealthy left a will. Whatever background you come from, the opportunity is there to better yourself and the majority of people do so. It is becoming the norm for people to own their own houses and businesses. Society strives for a better future, to live more comfortably and to have nice possessions. Therefore why do so many choose to let the law decide what is to be done with their hard-earned cash, property and possessions?

Gill v Woodall and Others  

The recent UK case of Gill v Woodall and Othersi highlights the need not only to make a valid will but also the necessity to make clear your intentions of what you wish to leave and to whom after your death. The case concerned the will of Mr and Mrs Gill who left their estate worth well over a million pounds to the RSPCA, and nothing to their only daughter, Dr Christine Gill. Dr Gill challenged the validity of the will and the RSPCA defended the claim.  

Dr Gill alleged that Mrs Gill had executed her will having been subjected to undue influence from Dr Gill’s father. Dr Gill’s concerns reflected her understanding that Mrs Gill did not approve of the RSPCA, an organisation which she had said was “a waste of time”, run by “a bunch of townies”. Dr Gill had enjoyed a good relationship with her mother and relied on the fact that her mother had never mentioned the RSPCA in any of their conversations regarding her mother’s will.  

After a long and costly court battle, the Court of Appeal found that Mrs Gill did not know and approve of the contents of the will, so that the will was invalid. The consequence of this was a finding that Mrs Gill’s estate should be treated as if no will had been left, so that her daughter inherited the estate after all.  

Intestacy  

When a person dies without leaving a valid will, they are said to have died “intestate” and their estate will be distributed under intestacy rules. However, it is important to note that these rules are subject to certain important limitations in Guernsey. For example, the rules do not protect unmarried couples who cohabit, whether heterosexual, gay or lesbian, and if a partner of a childless couple dies, the surviving partner is at risk of losing their home if the title isn’t in joint names. Contrary to popular belief, Guernsey’s intestacy rules do not protect people in what is often called a “common law” marriage, regardless of how long a couple have been cohabiting, with the result that a deceased partner’s possessions are likely to go directly to their partner’s children, siblings, parents or other close blood relatives. If there are no relatives to be found, then it is likely that the estate will go to the Crown (as what is termed ‘bona vacantia’).

The Position in the United Kingdom  

In the United Kingdom, the surviving partner may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which makes provision for cohabitating partners who have lived together for more than two years.

Position in Guernsey on Intestacy

The relevant legislation in Guernsey is The Law Reform (Inheritance and Miscellaneous Provisions) (Guernsey) Law, 2006. The key difference between the United Kingdom and Guernsey is that Guernsey still operates a forced heirship regime. Unlike the United Kingdom, Guernsey distinguishes between personalty (in essence, personal property) and realty (broadly, land and buildings), with different rules of succession applying to the two types of property.

Guernsey rules of succession regarding personalty only apply where a person is domiciled in Guernsey; otherwise, Guernsey applies the law of the person’s last domicile in order to determine succession to personalty. However, Guernsey’s rules on realty apply to property in the Island, regardless of where the owner resides or is domiciled. The extent to which a person can dispose of his property by will, depends on whether or not the person has a spouse and/or children.

As regards realty, Guernsey’s current intestacy rules provide a surviving spouse with an interest in, but no ownership of, real property owned by the deceased in his sole name. Jointly held property automatically passes on to the survivor. This situation is likely to change in the near future, however, as a result of the States of Guernsey approving proposals from the Inheritance Law Review Committeeii to enact legislation to replace the current system of forced heirship in Guernsey and introduce complete testamentary freedom. The proposed legislation will also be accompanied by family provision similar to that which applies in England and Wales under the Inheritance (Provision for Family and Dependants) Act 1975. We shall now consider the proposed reforms.

Testamentary Freedom  

The introduction of testamentary freedom into Guernsey law will enable an individual to leave, by will, the whole of his realty and personalty property which is in his sole name to such person(s), and in such proportions, as he chooses. As a result, no part of the deceased’s estate would be reserved automatically for either the surviving spouse or children. Any wills which have been executed before the proposed legislation comes into effect will not be affected by the new legislation, to protect people who are unable or unwilling to make a new will after the new law comes into force.

As regards cohabiting couples, provision will be made reflecting the position in England and Wales. In particular, it is proposed that a person who has lived with a deceased for two years as a spouse or any other person who was being wholly or partly maintained by the deceased prior to his death will be able to ask the court to make an order for a lump sum payment, periodical payments, a transfer of property or a variation of a marriage settlement.

When considering whether or not to grant an application for such an order, it is likely that the court will be required to take into account the ages of the applicant, the length of the marriage or relationship, the size of the estate, the financial circumstances of the applicant and the beneficiary, the conduct of any person before and after the deceased’s death and any known reasons for the deceased not making provision by will for the applicant.

Conclusion

Family inheritance disputes have always arisen and will almost certainly continue to arise in the future, with families fighting over a loved one’s estate. However, the risk of such issues arising can easily be minimised by ensuring that you have a will drawn up which clearly sets out how you wish your estate to be passed on. A will may help to avoid any unnecessary conflict or misunderstanding which may arise between your loved ones after your death, and you may also draw solace in the fact that your possessions and hard earned cash will be passed on into the hands of your chosen recipients.