2. Wills and Succession – Making a Valid Will of Movables
What is a will?
The term “Will” denotes the testamentary wishes of the Testator upon death and refers to the document in writing that records those wishes.
The characteristics of a Will are:
– It must be in writing.
– It is a declaration of the Testator’s intention. However, the Testator remains free to dispose of all and any of his property during life time to persons of his choice.
– It must be in a prescribed form that complies with the law and rules. Referred to as “Formal Validity”.
– It is freely revocable at any time up to the time of death.
– It takes effect on the date of death of the Testator. Up to this moment the named beneficiaries in the Will have no right of claim or interest in the Testator’s property. Equally a named Executor in the Will has no claim or interest.
– The Will can contain other information such as the Testator’s wishes as to funeral arrangements, donation of body parts, and so on. These are of course only wishes. They do not bind the Executor or others.
It is important to note that the making of a Will of movable property setting out the intention to make gifts on death to specified persons named in the Will does not in any way restrict or limit the Testator during life time to dispose of the property, change it or to deal with it in any other way of his choosing. In fact the Testator can revoke his Will at any time up to the time of death. In that eventuality, there being no valid will, the property would be distributed under Intestate law and rules.
Seeking advice when making a Will
This information gives basic general advice about making a Will and may help you decide what to do if problems arise. You can get general advice from Citizens Advice Jersey about making a Will or about problems in relation to a Will. You should go to a lawyer for detailed advice on matters about Wills. Legal aid is not available in connection with advice on Wills or probate (except in connection with specific legal claims that might qualify for Legal Aid).
Is it necessary to use a lawyer?
Although it is not a legal requirement, it is recommended that a lawyer is used to prepare your Will(s). There are several good reasons why that is so.
A ‘home-made’ Will is usually not clear enough. A lack of clarity can lead to uncertainty, which can give people the chance to challenge the contents of the Will. Lawyers may then need to get involved to resolve the dispute or to establish the Testator’s intentions and this can be costly. Delays may result, not to mention the emotional upset, and/or ill-feeling that can be generated between those involved.
There are also legal rules that you may not be aware of which may make your ‘home-made’ Will formally invalid. Moreover, has the Will been executed correctly?
Seeing a lawyer has the added benefit of an independent person recording your wishes and preparing the document. If the Will was later challenged for say, alleged lack of capacity, there is an independent person confirming that in their opinion, the person had capacity to give instructions and there will be an attendance note in support.
Lawyers can also advise on the position regarding that part of the movable estate that must be left to your spouse and children
There are also complex rules concerning the different types of gifts (legacies) in a Will, and what happens if there is insufficient funds to meet all the legacies.
The lawyer will also confidentially store the original Will(s), free of charge. The Will(s) cannot then be mislaid, damaged or interfered with and will remain private. Lawyers’ fees for preparing a Will(s) vary from firm to firm and also depend on how complex they are. You should obtain quotes in advance from law firms to help you decide which law firm to use.
Why is it important to make a Will
With no Will in place, a person assets pass in accordance with the intestacy law and rules. Without a will, a person’s estate may end up passing to relatives that the person does not know or does not like. A partner, cohabitee, godchild, friend or a charity, etc will not inherit under the intestacy provisions. The only way a person can be certain that their wishes are known and carried out is to have a Will in place. Knowing that loved ones have been provided for can give peace of mind.
Points to consider when making a Will
You should consider what you want to happen before you meet your lawyer. Some of the points to consider include:
– Check what your finances are including bank accounts, shares, investments and pensions. Obtain their details, sort code and account numbers.
– What are your total assets. Check that you have sufficient funds to honour those legacies.
– Decide who you want to be your Executor.
– Decide who you want to bequest the gift of cash or the gift of an item of jewellery/personal effects) to. Maybe it is to a charity or organisation?
– If anyone you name dies, what do you want to happen to that legacy. Do you want their children or family to have it?
– Who do you want to look after any minors (children). Will you name a Guardian? (someone to look after them). It is possible to name a guardian in the event of both you and your partner being killed at the same time, or in the case of a single parent (when no other party has guardianship, or care and control) This should be discussed with the person you are going to name before seeing the lawyer.
– What are your funeral wishes?
The contents of a Will
The contents of a Will will set out the intention of the Testator concerning the disposal of his property upon death:
– a gift by Will of movables – “legacy” (sometimes referred to as a bequest);
– a gift by Will of immovables – “devise”. See Part 4.
If the wording in the Will is unclear, or for some other reason does not identify sufficiently either the beneficiary and / or the subject matter, then the gift may fail (or require Court proceedings to interpret the Will). For example, “I leave £100 to each of my friends”.
The named people in the Will are to those people who full fill that description at the date of the preparation of the Will.
This is a gift by Will that is specific. The Testator will set out in writing what part of the property is to be left to the named person. He may use the word “my” to show ownership. For example, “I leave my Ford Mustang J100 to my friend John Banks”. Both the intended beneficiary and the subject matter are clearly identifiable as being a specific part of the Testator’s property.
If it does not exist at death then it does not from part of the Testator’s property. If it does exist but fails as a gift to say “X”, then it continues to form part of the Testator’s property. But as the Testator never intended for it to form part of his general property, it is likely that it falls in to residue (and possibly intestacy)
If it is a general legacy but to come from a specific part of the Testator’s estate (such as a specific bank account), this is a “Demonstrative legacy”. Like a specific legacy, the Testator expresses a clear intention that the legacy will be paid out of a specific fund.
This is a gift of identified property, not owned by the testator, to be paid for out of the general estate. The gift is said to come out of the Testator’s general property. For example, “I leave £10,000 to my friend John Banks”. This will be paid out of the bank accounts held by the Testator (not a specific account). If property is left in this way (e.g. I leave a lawnmower, Swift Ref 020 to John Banks) the estate will purchase this item out of general funds.
A Will may make provision for property, that falls in to residue for whatever reason, to be distributed to named person(s).
However, if all legacies under the Will have been distributed. The funeral costs and and debts have been paid in full. If property remains then it has no where to go. It falls in to intestacy, and is distributed under the Law and rules of intestacy.
Debts / Funeral expenses
A15, Wills and Succession (Jersey) Law 1993 provides:
“The cost of administration of the movable estate of a deceased person shall be paid out of the gross movable estate unless the decease person’s Will provides otherwise”.
Failure of legacy
A specific legacy (not general legacy) may fail for several reasons to include:
– Between the date of the Will and death, it ceases to be part of the Testator’s property (e.g. been destroyed);
– Ceases to conform to the description that it has been given;
– The Testator ceases to have a right of ownership over the property.
The specific legacy is said to have failed by reason of “ademption” (failure of a gift).
Death of the beneficiary
Unless the Will provides otherwise, if a named beneficiary pre-deceases the Testator, then the gift fails. The gift is said to have “lapsed”.
In the will the Testator can make provision for such an outcome. For example, “I leave ￡10,000 to john Banks. If he should predecease me, I leave this sum to his wife, Jane Banks”.
What happens if there are insufficient funds to meet all of the gifts under the Will? In that eventuality the property abates according to the Law and rules:
– Residuary abates first in time.
– General legacies abate next. They abate proportionally between the general legacies.
-Demonstrative legacies only abate after general bequest are exhausted.
But note, provided there is some part of the fund left to be paid out to the beneficiary, that part is paid. (e.g. ￡10,000 to be paid from my Lloyds Gold account. There is only ￡3000 in that account. Beneficiary takes ￡3000)
– Once the demonstrative legacies are exhausted, Specific legacies then abate. Again they abate proportionally
A beneficiary is not bound to accept a gift from the Testator. The beneficiary may refuse to take it, that is his right.
What is needed for a Will to be valid?
In order for a Will to be valid, it must:
– be in accordance with the law where the property is situated;
– be in writing, either typed or written;
– made in Jersey. If made outside Jersey, other formalities must be complied with;
– be dated (if the date can be shown by other evidence, it may not fail for this reason);
– be made by a person who is 18 years or over (unless the person is married or in a civil partnership);
– be made voluntarily and without pressure from any other person;
– be made by a person of “sound mind” at the time of the making of the will. Where there is the possibility of doubt about the mental capacity, it would be advisable to have a doctor examine the person and confirm capacity;
– be signed and acknowledged by the Testator in the presence of two independent witnesses (“Independent” means must not be a relative of the Testator or the beneficiary or a beneficiary under the Will). Immediately thereafter and in both their presence and the presence of the Testator the Will is signed and dated by the two witnesses.
The actual wording at the end of the document in a Will of movable property will be similar to:
“Signed and acknowledged by the said [name of Testator] as and for his last Will and Testament in respect of his Jersey movable property in the presence of us both present at the same time who at his request and in the presence of each other and the [name of Testator] have hereto subscribed our names as witnesses:- “; and
– meet the other required legal formality of a valid will.
If the person making the Will is blind, cannot read or write or is not familiar with or fluent in English they can still make a valid Will. It must be clear that they understood and approved the contents of the Will – for example, there should be evidence that the Will was read over to them so that it was fully understood.
A will of movables is valid from the moment it has been completed and signed.
If a Will is not dated it may still be valid in limited circumstances, provided it meets the specific requirements laid down by the 1993 Law, A17A (and A17B now added to deal with Covid 19 segregation).
A holograph Will must be:
– entirely at the hand of the Testator. That can be by hand or by typewriter or similar;
– signed by him at the bottom of the Will;
– dated (or evidence of the date can be shown),
– require two affidavits to say that is the hand writing of the Testator;
– and must show / contain testamentary elements so it is possible to identify the intention of the Testator. For example, a handwritten suicide note may meet this requirement.
How to keep a Will
Once a Will has been made it should be kept carefully and in a safe place, and nothing attached to it. Do not remove any staples or clips. If a Will or codicil is presented to the Judicial Greffe with pinholes, staples, staple holes or paper clip marks on it, an Affidavit of Plight and Condition will be required. This is to ensure that a testamentary document that may have been attached has not been removed. The Affidavit is a sworn statement of what was attached, and the circumstances in which the item was removed or why the holes were made.
There are a number of places that a Will can be kept:
– At home. If you want to keep the Will at home, it is advisable to keep it together with other valuable documents such as a marriage/birth certificates, share certificates, etc.
– At a lawyer’s office. Lawyers will watch the death announcements in the local papers to see whether one of their clients has died in order to make sure the family/executor(s) have the Will. A copy may be provided by the lawyer to be kept at home.
– At a bank or trust company. All banks should agree to hold Wills on behalf of individuals. One advantage is that the Will is completely safe, but next of kin or executors should know where the Will is being kept.
Dealing with problems with Wills
Problems arising from Wills will nearly always need expert legal advice. Legal aid may be available concerning specific problems with Wills.
If a Will cannot be found
If you believe a Will has been left, but cannot find any trace of it, you could get in touch with the following to see if they know where it is;
– lawyers who the dead person may have used.
– the Legal Aid Office in case legal aid was used.
– request to the Law Society to circulate their members to ask if they hold such a will.
– the banks the dead person used.
– close friends, or relatives.
– if the dead person lived in a residential home or hospital, the administrators of the home or hospital, in case they had care of a Will.
If the Will cannot be found, they will be treated as dying intestate.
If the original Will cannot be found but there is evidence that a Will was made, then it may be possible for a copy to be accepted for Probate. This will depend on the evidence available. An application should be made to the Royal Court seeking a direction that the copy be accepted for Probate.
A Will is found after the estate is settled
If a Will is found after letters of administration have been granted (Intestacy) and the Will is valid, the letters of administration will be revoked and probate granted instead.
If a later Will is found this will usually take effect, depending on its validity.
In both of these circumstances it would be necessary to make an application to the Royal Court.
Changes to a Will / Codicils
It is important when a Will is made to keep it up to date to take account of changes of circumstance. The most common changes which affect a Will are:
– getting married, remarried or entering a civil partnership.
When a person marries, an existing Will should be rewritten to include for the new spouse to receive a share in the property.
– getting divorced or separated.
If a person has been divorced since making a Will, they should have their Will amended because any bequests to the spouse, or their appointment as executor, will be nullified by the divorce. The rest of the Will remains valid.
Similarly, the legal provisions in the Will to the surviving spouse (or civil partner) do not operate if at the time of death the surviving spouse and deceased were not residing together and either a decree of Judicial Separation has been granted to the deceased spouse or the surviving spouse has deserted the deceased spouse without cause and such desertion was continuing.
-the birth or adoption of children.
– the death of a spouse.
– the death of a named beneficiary.
Making a new Will
Changes to a Will must not be made by writing onto an existing Will. A Will can be changed at any time. This can be done by:
– making a new Will to replace the existing Will(s).
A new Will automatically revokes or cancels all earlier Wills, however the wording will normally include a clause stating that all previous Wills and codicils are revoked.
– by Codicil.
The Will is usually the primary testamentary documents. Amendments or modifications to the primary Will are usually made by Codicil. Codicils must comply fully with the legal requirements for that of a Will.
Revoking a Will
Revocation (or cancellation) of a Will can take place at any time before the testator’s death. The revocation may be of the whole Will or just part of it. Revocation may be effected by the physical destruction of the Will (e.g. by setting fire to it), execution of a further primary Will or Codicil, or by showing the intention to revoke (e.g. writing “this Will is revoked” on it).
It is advisable to seek legal advice before revoking a Will, or part of a Will because unforeseen circumstances can follow from revocation.
Destroying a Will
Accidental destruction does not automatically revoke a Will, and a copy may be available (for example, at the lawyer’s office). The copy would need to be proved by order of the Court.
Destroying a Will in order to revoke it must be carried out by the testator, or in their presence. It should be burnt, torn up or otherwise completely destroyed so that it cannot be reassembled. If a copy exists, that too must be destroyed or it may be thought that the destruction of the Will was accidental.
A beneficiary dies before the Testator
If a beneficiary of a Will dies before the Testator, the gift goes back into the estate and becomes part of the residue. It is said to have “lapsed”.
If the beneficiary who dies is a child of the Testator and there is a clear intention in the Will, then their surviving children or grandchildren of that child will inherit.
If the beneficiary dies after the Testator but before they receive the gift, the gift will become part of the beneficiary’s estate.
If part or all of the residue of the estate is left to a beneficiary, who dies before the Testator, the rules of intestacy will apply to that property. This would also apply if no residue clause was included in the Will.
Testator commits suicide
If the Testator commits suicide, the Will is still valid. Nothing changes.
Challenging a Will
A person may challenge a Will for multiple reasons to include:
– Testator not legally able to make a Will. That challenger would have to produce evidence to show that the person was not capable of making a Will.
– The making of the Will was not a free and voluntary Act. The challenger would have to produce evidence to show that the person who made the Will was unduly influenced.
– The Will is defective in some way not complying with the law or rules.
– A person not receiving all or part of the estate to which the person is legally entitled under the law and rules. A Summons would be issued against the Executor and the matter brought before the Royal Court seeking an order that the Will be reduced ‘ad legitmum modem’.
Time to make a challenge
A Will should be challenged within a year and a day from the date of the Grant of Probate. The reason for the time period is to bring finality to probate and permits the executor to distribute the estate to the beneficiaries. However it is likely that in certain circumstances the Court may permit a challenge to be made out of time. This would depend on all the circumstances and the knowledge of the person seeking to make the challenge. Should a person wish to challenge a Will then they should seek legal advice and bring the application as soon as possible.
Receiving a gift in advancement of death
At customary law, where a gift (only applies to movables) is made by the deceased during his lifetime to his children or to a spouse during the course of the marriage, this is known as “avancement de succession”. The person receiving the avancement could be called upon by the heirs to bring the avancement back into the movable estate, at its value when the gift was made. This challenge is called “rapport a la masse”.
The purpose behind this principle was to, as far as possible, ensure even handiness between the children of the Testator. For example, should one of several children be given a lump sum. This provides a forum for any of the other children to have this advancement brought back in for distribution.
The heir may elect to keep the advancement and renounce their right to participate in the succession provided the advance does not exceed what the heir was entitled to under succession.
Obtaining a copy of the Will
Wills of movable Estate. Once Probate has been granted then the Will is a public document. A copy may be obtained from the Judicial Greffe.
Wills of immovable Estate. After the death of the testator, the Will is registered in the Public Registry as a contract. It is a public document and obtainable from the Public Registry.
The Beneficiary must wait a year and a day from the date of probate before they can make use of the inheritance in case the Will is contested. This period may be waived by agreement between all parties, and this is the norm. The Executor may require a simple indemnity to be signed by the beneficiary if a distribution is made before the year and a day has expired.
It may also be possible to take out insurance policy to facilitate an early distribution.