Wills and Intestacy

8.45.4 Updated on:

Wills in Jersey

You must go to a lawyer for detailed advice on matters about Wills as Jersey Law on the drafting of Wills is covered by legal rules.

You can’t get legal advice on your own circumstances on drafting a Will from Citizens Advice Jersey or ask for a will to be witnessed.

Why is it important to make a Will

With no Will in place, a person’s assets pass in accordance with the intestacy rules contained in the Wills and Succession (Jersey) Law 1993 (the ‘1993 Law’) and the Wills and Succession (Amendment) (Jersey) Law 2010 (the ‘2010 Law’).  There are different rules for personal estate and real estate, see Table A and Table B below.

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, co-habitee, godchild, friend or a charity etc. will not inherit under the intestacy rules and so will only inherit if a person has a Will in place providing for them.

The intestacy rules do not say what will happen regarding who looks after and cares for minor children or funeral wishes.  Friends and family may be left having to make the difficult decisions and make an educated guess as to what a person’s wishes were.

If a married person has children, the surviving spouse has the usufruct or life enjoyment of the matrimonial home.

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.

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.

A homemade Will is often not clear enough.  A lack of clarity can lead to uncertainty which can give people the chance to dispute what a person wanted.  Lawyers may need to get involved to resolve the dispute or to establish the person’s intentions and this can be costly.  Delays may result, not to mention the emotional upset that can be generated between those involved.

There are also legal rules that you may not be aware of which may make your Will invalid.

Seeing a lawyer has the added benefit of an independent person taking your wishes and preparing the document.  If the Will was later challenged, there is an independent person confirming that in their opinion, the person had capacity to give instructions and there will be attendance notes in support.

The lawyer will also confidentially store the original Will free of charge.  The Will cannot be mislaid, damaged or interfered with and will remain private.

Lawyers’ fees for preparing a Will vary from firm to firm and also depend on how complex they are.  It is possible to get quotes from law firms to help you decide which law firm to use.

Jurisdiction

A will made in Jersey can include assets held in other countries.  The Executor needs to have the will registered in the country where assets are held to obtain grant of probate in that jurisdiction.  The wills and intestacy law of the jurisdiction the person was living in at the time of their death apply.

Who can I leave my property to?

There are rules about how much you can leave to who.  You are free to leave as much as like to whoever you like in your Will and your Executor is obliged to follow it, however your spouse or children would have grounds to challenge the Will if it does not leave at least the below to them –

TABLE A: Power of Disposition over Immovable Estate
Situation of Testator Power of Disposition subject to certain conditions
Unmarried The whole except to a trust
Leaving no surviving spouse or descendants The whole except to a trust
Leaving no surviving spouse but leaving descendants The whole except to a trust
Leaving a surviving spouse but no descendants The whole except to a trust and subject to right of dower or viduité
Leaving a surviving spouse and descendants The whole except to a trust and subject to right of dower or viduité

 

TABLE B: Power of Disposition over Moveable Estate  
Situation of Testator Power of Disposition subject to certain conditions
Unmarried The whole
Leaving no surviving spouse or descendants The whole
Leaving no surviving spouse but descendants 1/3rd net movable estate with 2/3rd to the légitime descendants
Leaving a surviving spouse but no descendants 1/3rd net movable estate. Surviving spouse’s légitime comprises household effects and 2/3rd net movable estate
Leaving a surviving spouse and descendants 1/3rd net movable estate. Surviving spouse’s légitime comprises household effects and 1/3rd net movable estate. Descendants légitime comprises 1/3rd net movable estate

Adopted children and children born outside of marriage

Children born during a marriage, children born outside of marriage and adopted children all have equal rights to inherit.

Joint assets

On the death of one of the owners of an asset owned jointly, including bank accounts, the surviving joint owner becomes the sole owner.  A bank will require a copy of the death certificate.

Executors

Executors are people named in a Will of movable estate responsible for carrying out the wishes of the person who has died. They will have to collect together all the assets, deal with all paperwork, pay any debts, taxes, funeral and other costs out of the estate.

A will of immovable property needs no executor because from the date of death to the date the will is registered, the property vests in the heirs of the deceased. On registration of the will, the property title passes to the beneficiary automatically.

Anyone can be appointed executor, including named beneficiaries of the Will. It is not necessary to appoint more than one executor although it may be advisable. The most commonly used executors are:

  • relatives and friends
  • lawyers or accountants
  • trust companies

It is important to choose executors with considerable care since their job can involve a great deal of work and responsibility. You should always approach anyone you are thinking of appointing as an executor to see if they will agree to take on the responsibility.

It is often convenient to appoint a beneficiary of the Will as an executor as they will have a direct interest in getting the job done quickly. If someone is appointed who is not willing to be an executor, they have the right to refuse to act but not after they have started to deal with the estate.

If there is more than one executor it is useful that each knows of the other executor, and how to contact them in the event of the death. The wording of the Will regarding executors is important. If more than one executor is appointed jointly all executors must apply for probate, unless they opt to renounce. If the appointment is joint or severally, one or all can apply for probate.

Relatives and friends

A married partner is often made executor of a person’s Will particularly if there are no adult children. This is useful, since the partner is likely to have an interest in the Will. It is advisable to appoint one or more co-executors, since the partner will have many other matters to deal with. In this case, an adult child, close friend or relative could also be appointed. A gift can be left in the Will as compensation for their effort as they are otherwise entitled only to claim for expenses.

The advantage of choosing friends or relatives as executors is to avoid the costs which professional executors charge.

In all cases it is helpful to appoint more than one executor or an alternative executor in case one of them dies.

Lawyers or accountants

It is possible to appoint a lawyer or accountant to be an executor and a clause will be included in the Will so that the professional fees for the administration can be charged to the estate. You should ask the lawyer or accountant what the fees are likely to be for acting as executor.

Trust Companies

It is possible to appoint a trust company as an executor of a Will, but only if authorised under the Probate (Jersey) Law 1998. This could be helpful if the family is likely to be in dispute, or if the Will is particularly complex. A trust company is impartial, experienced in investment and trust management and is certain to survive the person making the Will. The disadvantages of using a trust company are the impersonal nature of the relationship and the often very high costs.

The basic charge for acting as an executor is usually a percentage of the gross value of the estate. The different trust companies operate different scales and one may be better than another depending on the size of the estate. The trust companies also have different minimum charges. It is advisable to get estimates and scales of charges from the trust companies concerned before appointing a trust company as an executor.

What is needed for a Will to be valid?

In order for a Will to be valid, it must:

  • be made by a person who is 18 years or over
  • be made voluntarily and without pressure from any other person
  • be made by a person who has capacity. Where there is the possibility of doubt about the mental capacity, it would be advisable to have a doctor as one of the witnesses
  • be signed or acknowledged in the presence of two independent witnesses at the same time that the Will is signed and dated.  A Will of Immovable Property must be read out aloud to the testator and one of the witnesses must include either a member of the States of Jersey, one of the Law Officers of the Crown, an Advocate or Solicitor.
  • 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.

How to keep a Will

Once a Will has been made, it should be kept carefully, in a safe place and with nothing attached to it. Do not remove any staples or clips

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 a birth certificates etc.
  • At a lawyer’s office. Lawyers will monitor the death announcements in the local papers to see whether one of their clients has died in order to make sure the family have the Will. A copy may be provided by the lawyer to be kept at home.
  • At a bank or trust company. One advantage is that the Will is completely safe, but next of kin or executors should know where the Will is being kept.

Leaving information in addition to a Will

You might wish to leave other information as well as making a Will, but this should not be attached to the Will itself. It can be helpful to leave some guidance on practical arrangements to be made, for example, details of funeral arrangements or organ donation.

Dealing with problems with Wills

Problems arising from Wills will nearly always need expert legal advice.

If a Will cannot be found

If you believe a Will has been left but cannot find it, you can contact The Law Society, who will write to all law firms asking them to check their records.

A Will is found after the estate is settled

If a Will is found after letters of administration have been granted and the Will is valid, the letters of administration will be revoked and probate granted instead. If a later Will is found, it will usually take effect, depending on its validity. In both circumstances you would have to refer to the 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
  • getting divorced or separated
  • the birth or adoption of children
  • the death of a spouse
  • the death of a named beneficiary

Purchase of property

When a person marries, an existing Will should be rewritten because the law entitles the spouse to a certain share of the estate and a Will is normally written to take this into account.

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 but the rest of your Will remains valid. Similarly, the legal provisions to the spouse do not operate if a couple have been living apart at the time of one of their deaths or there is a judicial separation.

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 by adding on codicils, which are legally binding amendments signed and witnessed in the same way as a Will. If the changes required are more major, a new Will should be considered.

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.

Revoking a Will

Revocation can take place at any time before the testator’s death. The revocation may be of the whole Will or just part of it or may be demonstrated by the destruction of the Will, execution of a further Will or codicil, or by showing the intention to revoke by, for example, 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 due to Jersey’s laws on the disposition of assets.

Destroying a Will

Accidental destruction does not 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. An instruction to an executor to destroy a Will has no effect.

An executor dies

If an executor dies and there are other surviving executors then these executors can deal with the estate. If an executor dies after the person who made the Will and there are no other executors, the position is more complicated. In this case an executor dative will usually be appointed to deal with the estate. There are special rules about who can be an administrator in these circumstances. If this affects you, you should always go to a lawyer. The executor dative would be appointed by the Registrar of Probate subject to certain conditions.

A beneficiary dies

If a beneficiary of a Will dies before the person making the Will, the gift goes back into the estate and becomes part of the residue. However, if the beneficiary who dies is a child of the person who made the Will then the children or grandchildren of that child will inherit.

If the person dies to whom the residue of the estate is left, the rules of intestacy will apply to the property in the residue. This would also apply if no residue clause was included in the Will.

If the beneficiary dies after the person making the Will but before they receive the gift, the gift will become part of the beneficiary’s estate.

If the person who made a Will commits suicide

If the person who made the Will commits suicide, the Will is still valid.

Challenging a Will

A person may want to challenge a Will because the person who died was either:

  • Not legally able to make a Will. That person would have to produce evidence to show that the person was not capable of making a Will;
  • Under pressure to make the Will and provide for people in a certain way.  That person would have to produce evidence to show that the person who made the Will was unduly influenced;
  • The person feels that they have not received the bequest to which they are entitled under the Wills and Successions (Jersey) Law 1993. A Summons would be issued to the Executor and the matter brought before the Royal Court which would then issue an Order reducing the Will ad legitmum modem.

A Will must be challenged within a year and a day from the date of the Grant of Probate and they should seek legal advice.

At customary law, an heir who has received, during the lifetime of the deceased, a gift known as advancement de succession, could, after the death of the testator, be called upon by the co-heirs to bring the advancement back into the movable estate, at its value when the gift was made, before it was divided. This is called “rapport a la masse”. The heir can nevertheless participate in the division of the movable estate if the gift they received was expressly made from the donor’s disposable third. The heir may elect to keep the advancement and renounce their right to participate in the succession provided the advance does not exceed the testator’s disposable third.

Who can see the Will

  • Wills of Personal Estate.  Once Probate has been granted, the Will is a public document.  A copy may be obtained from the Judicial Greffe for a charge. Notice is required for a Wills search to be carried out.
  • Wills of Real Estate. As the Will is registered in the Public Registry as a contract, it is a public document after the death of the testator.

Intestacy

When a person dies without having made a Will, they have died intestate. The person’s estate has to be dispensed according to the Wills and Successions (Jersey) Law 1993 as amended by the Wills and Succession (Amendment) (Jersey) Law 2010. Instead of property passing intact to the eldest male heir, it is now divided evenly among all the heirs at law.

The estate can only be distributed after Letters of Administration have been granted by the Judicial Greffier. The Application must be made by the eldest child, spouse, or parent according to the circumstances of the deceased. Advice will be given by the Judicial Greffe.

Distribution of Immovable Estate (where there is no Will)
Situation of Deceased Beneficiaries
Unmarried Heirs at Law
Leaving no surviving spouse or descendants Heirs at Law
Leaving no surviving spouse but leaving descendants Heirs at Law
Leaving a surviving spouse but no descendants Surviving spouse takes all
Leaving a surviving spouse and descendants Surviving spouse has life enjoyment of the matrimonial home and interest in the reversion with the descendants. Surviving spouse and descendants take equal shares in any other remaining property

 

Distribution of Movable Estate (where there is no Will)
Situation of Deceased Beneficiaries
Unmarried Heirs at Law
Leaving no surviving spouse or descendants Heirs at Law
Leaving no surviving spouse but descendants Descendants
Leaving a surviving spouse but no descendants Surviving spouse takes all net movable estate
Leaving a surviving spouse and descendants Surviving spouse takes household effects, other movable estate to the value of £30,000 and half the rest of the net movable estate. Descendants take remaining half of net movable estate

Heirs at Law

The terms heirs at law and descendants are defined as follows:

  • In law, heirs and descendants include relations to the seventh degree, which could in practice mean many possible heirs. It is therefore necessary to seek advice on your likelihood of being an heir. If you would like to know who might inherit, you should contact the Administrator of the estate or take legal advice.
  • If the deceased is single person with neither siblings nor children, parents would inherit the estate.

Divorce and Separation

Following a divorce, one partner has no rights to inherit from the other. Separated spouses may inherit from an intestate partner, but the right may be challenged by other parties, e.g. children if desertion without cause is involved. The onus of proof is on the challenger and if you are in such a situation you must seek legal advice.

Step-children

The Law does not recognise step-children as descendants unless they have been formally adopted.

Executor’s rights to interest on estates

The executor is no longer entitled to the income arising on the movable estate during the year that follows the testator’s death, but they can make reasonable charges to cover the expenses.

Unmarried Couples

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

Civil Partners

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

Use of an inheritance within a year

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, but 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.

Caveats

Beneficiaries who feel an estate has been wrongly or badly administered should seek guidance from the Registrar of Probate at the Judicial Greffe or get legal advice. A Caveat may be placed on the estate to prevent the administration going ahead. To lift a Caveat, an action must be heard before the Royal Court unless an agreement between the parties can be reached. Complaints against an executor who is a lawyer should be directed to the Registrar of Probate at the Judicial Greffe, as they have sworn an oath in the Royal Court.

Are Wills effective immediately?

Yes, both of movable and immovable estate provided that the Will of Immovable Estate has been correctly executed in accordance with Jersey Law.

For practical purposes a year and a day is taken from the date of the Jersey Grant of Probate.

An executor does not wish to act

A named executor cannot just refuse to act. They would have to renounce the duty formally through the Courts and if no alternative executor had been named in the Will, the Registrar of Probate would appoint an executor dative. The process to renounce executorship will be explained by the Judicial Greffier.

Marks on a Will

If a Will or codicil is presented to the Judicial Greffe with pinholes, staples, staple holes or paper clip marks, 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.

Joint assets

Where assets are held jointly, they will pass to the survivor upon the death of the other party. The survivor is then considered to have received a gift of one-half of the assets from the deceased party as at the date of death. Such gift is legally classed as an advance.

Where the deceased leaves children who are entitled to a share of the estate, the division of the estate will be affected by whether all the assets of the couple are in joint names, or whether the deceased had some other assets in their own name:

  • If all the assets are held in joint names, the survivor can keep everything from the joint assets by way of survivorship, because they lay no claim to any part of the deceased’s estate which was in their name alone.
  • If some of the deceased’s assets were in their own name and the surviving partner decided to claim a share of those assets in addition to the joint assets they would receive as a survivor, the children could legally claim their share of the deceased’s estate in sole name, plus their share of the half the joint assets.

To obtain assets 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.

Blood relatives in a set order of priority are entitled to benefit in an intestacy. These start with the descendants, siblings, or if they predeceased, their children, grandchildren, and so on. Then the parents.

Replacement bequests

If an item bequeathed to an individual is no longer available, legal advice should be taken.