"It is important to get to the bottom of what is really important to you when preparing a will with your legal adviser. They should take the time to properly get to know your situation and understand your needs"
Having assisted clients from a wide range of backgrounds on the process of preparing a will, I often hear the same questions. As preparing a will is something that everyone should address at some point in their lives, I felt it worth sharing the answers to the most regularly asked questions with you:
Why do I need to make a will?
Making a will in Jersey in not compulsory, but if you die intestate, your assets will devolve in accordance with the Wills and Successions (Jersey) Law 1993 (the Law).
Who can make a will?
Any adult over the age of 18 who has full mental capacity can make a will. Difficulties do arise where mental capacity is in doubt, particularly for older people, and there are accepted procedures for ensuring that a testator has capacity.
How many wills do I need?
In Jersey it is customary to make two wills. One deals with your immovable property (houses and land, and flying freehold flats) and another to deal with your movable property (everything else – including money, cars, shares and share transfer flats).
Different rules apply to immovable and movable property on intestacy, and there are different formalities for registration after the death. Although it is possible to make a mixed will, most people prefer to make two wills.
Who are the people I need to consider?
The States of Jersey has made some significant legislative changes in the last few years, with the aim of bringing Jersey’s succession law up to date and to reflect the changing shape of modern families. Some of the most important are:
What is the law governing intestate (not outlined in a will) successions?
The 1993 Law sets out how the estate devolves (is allocated) in an intestacy.
Immovable Property is covered by Articles 5 and 6 of the 1993 Law, and is defined by the family situation of the deceased:
If you are unmarried and do not have any children, Jersey customary law would regulate the devolution of your estate; this would often mean that your brothers and sisters may inherit in preference to your parents.
Movable Property is covered by Article 7 of the 1993 Law:
Again, if you are unmarried without any children it is likely that your brothers and sisters would inherit your estate.
Household effects are all those items found in and about the matrimonial home, excluding cars, business assets (such as computers etc), cash and securities for cash, and items or collections of items worth more than £10,000. Items that have been specifically given to someone under a will are also excluded.
Who can I leave my assets to? Can I exclude my family?
You can leave your immovable property to whomever you choose, whether that is a family member, a friend or a charity. If you are married but do not leave the matrimonial home to your spouse, they will have a life-enjoyment of that home by operation of Article 5 of the Law.
Your family home is usually part of your immovable property and is often the most significant part of your estate so it is important to ensure that the right person or people inherit it.
You can also leave your movable property to whomever you want, but if you do not leave your estate in certain proportions, your surviving spouse or children can claim their légitime:
Légitime must be formally claimed by an application to the Royal Court, but will always succeed if the surviving spouse or child can prove their relationship to the deceased. The remaining one third of the estate would follow the terms of the will, excluding any gift to the person claiming their légitime.
Divorce, separation and subsequent marriages?
The 1993 law provides that on divorce, the former spouse loses all entitlement to the estate of the other. A decree of judicial separation or desertion without cause has the same effect.
The rights of a surviving spouse apply to the spouse at the date of death, however long or short the marriage may have been, and regardless of the existence of children of any previous relationship.
Unmarried partners in Jersey have no succession rights whatsoever, regardless of the duration of the relationship and there is no concept of common law marriage in Jersey. If you want your partner to inherit your property, but do not wish to marry or enter in to a civil partnership, you should make a will in their favour. This is the only way to ensure they inherit your estate.
What else should my will cover?
Your will of movable estate would also usually appoint an executor, who is responsible for gathering in your assets, settling your liabilities and finally distributing your assets.
You may also wish to specify funeral arrangements, set out preferences for the care of minor children and to make gifts of particular items of jewellery, vehicles or other personal possessions.
You may also wish to consider how your online assets are treated. Although there is currently little law on the subject, many people will feel that they have substantial information online; social media accounts, photograph collections, and intellectual property. You may wish to consider who should take control of these assets.
In addition, you may wish to compile a list of your assets, particularly where these assets could not be found by going through your personal paperwork; bank accounts that do not provide hard copy statements, online share accounts and accounts with shopping sites in particular.
Can I write my will at home?
Jersey law has quite specific requirements as to the manner of preparation and execution of wills, and they differ between immovable and movable property. It is best to seek legal advice to ensure that your will is valid and not open to challenge.
What if circumstances change and I want to change my will?
You can change your will as often as you want to, and for any reason. It is possible to record simple changes by executing a codicil, but for the sake of clarity it is usually better to execute a new will if the changes are substantial. The formalities for executing a codicil are the same as those of a will, so there is no time or cost advantage in choosing a codicil.
It is important to get to the bottom of what is really important to you when preparing a will with your legal adviser. They should take the time to properly get to know your situation and understand your needs, and assist you in the process accordingly.