3. Wills and Succession – Disposal of Movables

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Introduction

The purpose of this page is to set out the law and rules concerning the gifting of movable property:

– movables bequeath under a valid Will

– movables bequeath under intestacy. There is either no Will or the Will has failed for some reason.

When we refer to “Spouse” below, this now includes a “civil partner”.

A Testator upon death has testamentary freedom to leave his movable property to persons of his choice by Will, provide the Will is not challenged under “legitime”.

The Law makes specific provision for a spouse and children of the deceased to claim by right of ownership movables belonging to the Testator. It is called “Legitime”. It is now set out in the Wills and Succession (Jersey) Law 1993, as amended. Those provisions provide for a spouse and children to take as set out below.

Movables – By will

Movables – Leaving Will
Surviving spouse and children

 

Spouse Household effects.  (A7(4) see below)

1/3rd of rest of  net movable estate

Children   2/3rd of rest of  net movable estate in equal shares (A7(3)).
No surviving spouse but children

 

 2/3rd of  net movable estate in equal shares (A7(3))
Surviving spouse, no children  Household effects.  (A7(4) see below)

2/3rd of rest of net movables estate

 

In the event that the spouse predeceases the deceased spouse, that person’s estate has no claim through “legitime” or as a named beneficiary under the Will (unless the wording expressly intends for that person to take).

In the event that one or more of the decease’s children predecease the deceased, but leaving children of their own, they stand in place of their dead father, or grandfather, and take what that deceased person would have been entitled to. They come to the succession “a la representation”. This gives rise to a complex area of Law and is set out under Intestacy below.

In summary, movable by Will:

– Surviving spouse – see table above. 1/3rd distributed as set out in Will.
– Surviving spouse and issue (or surviving issue of deceased issue ) – see table above
– Surviving issue (or surviving issue of deceased issue ) – see table above. 1/3rd distributed as set out in Will.
– No surviving spouse or issue (or surviving issue of deceased issue ) Distributed as set out in Will.

Therefore “legitime” may represents an overriding provision to what the Testator intended in the Will. As can be seen from above, once the spouse and / or children have taken their “legitime” very little is left to fund the legacies in the Will.

The spouse and / or children would seek to enforce their right to “legitime” under Probate of the estate. In the event of a dispute, they would proceed by summons in the Royal court to enforce their right, namely that the Will be reduced “ad legitimum modum”.

“Household effects” is defined under the law A7(4):

“For the purposes of this Article “household effects” means articles of household or personal use or ornament normally situate in or around the matrimonial home or civil partnership home, but excludes –
(a) any motor vehicle;
(b) any article used wholly or principally for business purposes;
(c) money or securities for money;
(d) any single article or any single group of similar or related articles forming a set having in either case a value over£10,000; and
(e) any article of personal use or ornament which is the subject of a specific bequest under the will of the deceased spouse or deceased civil partner.”

What is meant by the “rest of the net movable estate”

It does not include a payment out under a policy of Insurance taken out by the deceased spouse against his or her life in order to pay off or reduce a debt secured against the immovable home of the deceased or owning jointly with another, provided it is used for that purpose.

By being a net sum, it would in the first instance be necessary to pay off the debts of the estate and to pay all reasonable charges such as lawyer, executor and funeral expenses. What is left is the net sum.

The 1/3rd net sum left over after paying out the “legitime” to the spouse and/or children, would be available to meet the gifts to those named in the Will.

Movables – No Will (Intestacy)

Where no Will is made or made but fails, under intestacy the spouse and / or children take as follows:

Movables – Leaving no Will

 

Surviving Spouse and children
Spouse

 

Household effects.

Movable estate to the value of £30,000.

1/2 of rest of net movable estate.

 

Children

 

1/2 of rest of net movable estate in equal shares (A7(3)).

No surviving Spouse, but children Take the whole of the movable estate in equal shares (A7(3)) as heirs of the deceased.  That is explained below.
Surviving spouse, no children Whole of the movable estate.

 

In the event that the spouse predeceases the deceased spouse, that person’s estate has no claim through “legitime” or on intestacy.

In the event that one or more of the decease’s children predecease the deceased, but leaving children of their own, they stand in place of their dead father, or grandfather, and take what that deceased person would have been entitled to They come to the succession “a la representation”. This gives rise to a complex area of Law.

In summary, movable on intestacy:

– Surviving spouse – see table above.
– Surviving spouse and issue (or surviving issue of deceased issue ) – see table above
– Surviving issue (or surviving issue of deceased issue ) – see table above.
– No surviving spouse or issue (or surviving issue of deceased issue ). Rules and principles of customary law and statute law apply

Where there is no surviving spouse or children then the customary law, and more recently Statute law, sets out the test to be satisfied in order to inherit. Who amongst the heirs is entitled first in time to inherit? This is a complex area of law and you may wish to seek legal advice in these circumstances

If there is no surviving spouse or children (or surviving issue of deceased issue ), and no claimants claiming a direct line succession (no direct line descendant or ascendant of the deceased), then the matter is considered under a “collateral succession” (upon relatives who are not a descendant or an ascendant) to identify the closest blood relative of the family, and whether falling on the paternal or maternal side of the family. There is now no discrimination between the paternal and maternal sides of the family (Wills and Succession Law A3).

On a collateral succession of movables, it is the “civil method” that is used to identify the number of steps between the claimant and the deceased, and whether that person is the closet relative. Part 4 sets out in detail these rules. We repeat what we say there, that it is a complex area of Law and should you believe that you are entitled to claim as an heir in the movable estate of a deceased on intestacy, you may wish to seek legal advice.

Who is a “Spouse”?

Civil Partners

Civil partners now have the same rights and responsibilities as married couples under the terms of the Civil Partnership (Jersey) Law 2012.

Unmarried Couples

Unmarried couples who live together have no inheritance rights in law when their partner dies,
other than through their joint ownership of property or being named in the Will.

Divorce

Following divorce, they become unmarried. They are not a “Spouse” and lose the right to claim by “legitime” under intestate or under a Will. They may claim in the Will of the Testator provided they are expressly include as a beneficiary.

Married but residing apart.

A surviving spouse who at the date of death is residing separately from the deceased spouse and either:

– has deserted the the deceased spouse without cause and such desertion was continuing; or
– a decree of Judicial separation has been granted;

shall lose their right to inherit under the “Legitime” provisions set out above.

Who is a “child”?

Step-children

The Law does not recognise step-children as descendants.

Illegitimacy

Jersey law previously made no allowances for illegitimate children to inherit under a Will or on Intestate (unless specifically named in the Will). Illegitimate children were excluded from benefiting. The new law in 2010 provided that, illegitimate children of a man who dies, shall have the same rights of succession regardless of whether the father was married or not.

There remains no distinction between a woman’s legitimate or illegitimate children. They are her children and inherit upon her death.

Legitimated children

Legitimated children are treated as if they were always legitimate.

Adopted children

Adopted children are treated in all respects as natural children.

Movable Joint assets

Where property is owned by more that one person, it can be held jointly or as owners in common. In the absence of words to the contrary the presumption in Jersey is that the property is held as owners in common.

Where property is held as owners in common, each have a common interest. Importantly, that ownership passes to your estate upon death.

Where assets are expressed to be held jointly, each joint owner has the same ownership of the whole. In the event of one joint owner becoming deceased then the right of survivorship prevails and the surviving owner takes the whole property outside of Probate or Intestacy. The property does NOT form part of the deceases’ estate.

You should consider carefully the document setting out joint ownership. It may by its terms qualify or set out ownership in common.

To obtain ownership of Joint property after a death, all that is usually required is for the survivor to produce a copy of the death certificate to the asset holders, e.g. Banks, etc. In the case of share transfer property, a copy of the death certificate should be lodged with the Company Secretary who will then issue a new certificate in the survivor’s name.