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THE CHANNEL ISLANDS LAW FIRM
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Wills and Probate
Wills for Jersey residents
October 2009
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Introduction Can anyone make a Will?
What is a Will? No, not everyone. To make a Will a person must have what is known
as testamentary capacity. In general terms this means that the
A Will is a document which expresses how you would like your Estate person making the Will, known as the testator, must be of full age (18
to be dealt with after your death. Generally, it refers only to your years old) and sound mind.
assets, but it can say other things too. For example, it can express
your wishes as to where you wish to be buried or whether you wish Immovables
to be cremated.
Immovables essentially comprise houses and land.
Why make a Will? What are the formalities required of a Will?
There are several important reasons why you should make a Will. On
There are a number of these. For example, a Will of Movables must
a practical level, a Will provides certainty for your family and friends
be signed or acknowledged by the testator in the presence of two
at a time of emotional distress. It tells them how you wish to deal
witnesses who are both present at the same time. These witnesses
with your estate. On a legal level, it ensures that your property is
must not be beneficiaries under the Will. A Will of Immovables
passed on to persons or institutions of your choice.
executed in Jersey needs to be read to the testator by an Advocate
in the presence of one other witness. Your lawyer will advise you.
As we shall see, in the absence of a Will the law of Jersey steps in
and makes certain decisions as to the disposition of a deceased
person’s property. These decisions may not accord with your wishes.
What if I change my mind?
No problem. It is possible to change the terms of your Will at any time
How can I make a Will? or even revoke the whole thing. Again, however, formalities have to
be complied with and you should seek legal advice.
Well, you can always make one yourself. However the law stipulates
certain requirements in relation to making a Will and if these are not
complied with it may mean that the Will is ineffective. It is thus
Intestacy
prudent to seek a lawyer’s advice. If you die without having made a Will, you are said to have died
intestate. At this point statutory law steps in and determines what
How much does it cost? happens to your estate. The law can be quite complicated and not
what you expect. You should seek legal advice for a more detailed
This of course depends on how complicated the Will is, but generally
explanation.
speaking the making of a Will is relatively inexpensive.
Ask your lawyer for an idea of the cost involved.
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Types of property
Dower and Viduité
Jersey law treats property in a different way depending on whether it
is immovable or movable. We will now consider the differences and Dower entitles a surviving wife to life enjoyment of one third of the
explain the powers of disposition over such property. immovable property owned by her deceased husband at the date of
his death. Viduité entitles a surviving husband, providing there has
Descendants been a child born of the marriage, to life enjoyment of all of the
immovables of which his wife died possessed. The latter right is lost
Legitimate descendants are defined in the 1973 Legitimacy Law in the event that the husband remarries.
however stepchildren or illegitimate children can be named as
beneficiaries of a Will. Does it make any difference if I am divorced?
To whom may I Will my immovable property? Yes it does. If you are divorced, have obtained a judicial separation
against your spouse or your spouse deserted you without cause he
Subject to certain rights of a surviving spouse, you may leave your or she loses his or her entitlement to a part of your immovable estate
immovable estate to whoever you choose. unless you make express provision in your will to the contrary.
Husbands and Wives What is the effect of my Will of immovables when I
The rights of a surviving spouse die?
Immediately upon your death, Jersey law provides for your
If you die leaving a surviving spouse, with or without descendants,
immovable property to vest in what are known as your heirs at law,
you are entitled to dispose of the whole of your immovable estate by
effectively those who would inherit it on an intestacy. But this is only
will as you wish, but this is subject to your spouse’s right of dower (if
an interim measure. As soon as your will of immovables is registered
a wife) or viduité (if a husband).
in the Royal Court, title to your immovable property vests in those
persons you have designated in your will, known as devisees.
If you die without making a will and leaving a surviving spouse, the
position depends on whether you leave any descendants. If there are
no descendants, your surviving spouse takes all of your immovable
estate.
If you leave descendants, your surviving spouse has life enjoyment of
the matrimonial home and shares equally with each of the
descendants in any other immovable property.
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Personal Property
The Powers of disposition over immovable
property Personal property comprises a variety of things including money,
furniture, jewellery, motor vehicles, stocks and shares.
The following table details how you can dispose of immovable
property under Jersey law.
What is an executor?
An executor is appointed to carry out the personal wishes of the
Position of Testator Power of Disposition Intestacy testator as expressed in the Will. Every Will of movable estate should
appoint an Executor and his duties will be defined in that Will. An
executor obtains probate of the Will. Generally, anyone can be an
Unmarried The whole Heirs at law executor provided that person is of age and sound mind. It is
advisable to check with your intended executor that he is happy to
Married leaving spouse
carry out the role. Your lawyer will generally be prepared to act as
The whole subject to Surviving spouse
and no descendants surviving spouse’s right your executor.
to dower or viduité
What is a grant of probate?
Married leaving spouse The whole subject to Surviving spouse takes A will of movables does not take effect until it has been proved and
and legitimate surviving spouse’s right life enjoyment of
probate granted. Probate is an order of the court which confirms the
descendants to dower or viduité matrimonial home.
authority of the executor to administer the estate of the deceased.
Real ownership shared The executor swears an oath that he will administer the estate both
equally between surviving properly and honestly.
spouse and each
descendant.
Guardians?
It is advisable to appoint guardians of your minor children in the
Widowed leaving no The whole Heirs at law
event of both parents’ death.
surviving spouse but
leaving descendants
To whom may I will my movable estate?
You should consider leaving a portion of your movable estate to your
descendants. This is known as the ‘legitime’. A spouse is also
entitled to a portion. If you have neither spouse nor descendants
then you have full freedom of disposition.
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Personal Property
Position of Testator Power of Disposition Intestacy
What is meant by “household effects”?
This phrase is defined by the Wills and Successions (Jersey) Law Unmarried The whole Heirs at law
1993 and means, subject to some exceptions, articles of household
or personal use or ornament normally located in or around the
matrimonial home. Married leaving spouse 1/3 net movable estate Surviving spouse
and no descendants (Surviving spouse
receives household
What is meant by “Net Movable Estate”? effects and 2/3 net
movable estate)
A person will usually die leaving at least some debts. The estate is
liable for these debts, as it is for funeral expenses and probate
stamps. It is only after these debts have been paid that the full Married leaving spouse 1/3 net movable estate. Surviving spouse receives
extent of the estate becomes known. and legitimate (Surviving spouse the household effects other
descendants receives the household movable estate to a value
effects and 1/3 net of £30,000 and half the
The Powers of disposition over movable property
movable estate) rest of the net movable
The following table details how you can dispose of imovable (Descendants receive estate.
property under Jersey law. 1/3 net movable estate) The descendants take the
other half of the rest of the
net movable estate.
Widowed leaving no 1/3 net movable estate. Descendants
surviving spouse but (Descendants receive 2/3
leaving descendants net movable estate)
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The use of a Jersey Trust private arrangement there is no requirement for public reporting or
the filing of accounts.
What is a Jersey Trust?
A Trust can also be utilised during a Settlor’s lifetime to similar
A trust is a private arrangement between one person (known as a
advantage.
“Settlor”) and another person (known as a “Trustee”), based on
confidence, by which the Settlor’s property is held by the Trustee
upon terms and conditions which allow the benefit of the property
How safe is a Trust?
to be enjoyed by others (known as “Beneficiaries”), sometimes A trust is based on confidence; the relationship between Settlor,
including the Settlor. Trustee and Beneficiaries is protected by law. Once a trust is
established, a Settlor normally divests himself of ownership of the
Trusts in Jersey Trust funds. In practical terms, however, he can still have a say.
The origins of the trust concept are to be found in Anglo-Saxon law,
He may provide a Letter of Wishes, an informal document which is
but its use in Jersey has long been sanctioned by local customary
not part of the Trust, but which nonetheless indicates to the
law. Today, the position is governed by the Trusts (Jersey) Law,
Trustees how he would like the Trust to be administered both during
1984, a modern piece of legislation containing rules as to the
and after his life.
formation of trusts, the appointment, duties and powers of trustees
and providing power for the Royal Court to become interested in
He can also appoint a Protector, a third person who can exercise
trusts to protect the parties involved. Alongside this legislative
control of Trustees in the exercise of their discretion.
framework, Jersey as an international offshore finance centre, has
built up a vast experience in the use of Trusts.
A Will or a Trust?
Why a Trust? The choice of a Will or a Trust is one best made with the benefit of
professional advice. We are happy to assist you in this choice.
In the context of succession, a Trust has certain advantages over a
Will. By placing ones assets in trust, a Settlor can usually avoid the
strictures of the law relating to inheritance and ensure that his
property devolves upon the beneficiaries of his choice.
Please note that this briefing is only intended to provide a very general overview of
Furthermore, in certain circumstances it can allow for flexible the matters to which it relates. It is not intended as legal advice and should not be
protection of assets and reduction of tax liability. It also has the relied on as such.
advantage of confidentiality. As the existence of a Trust is a purely c Carey Olsen 2009
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For further information or professional advice
please contact our lawyers below.
Contact us 47 Esplanade St Helier Jersey JE1 0BD
Tel: +44 (0)1534 888900 Fax: +44 (0)1534 887744
Tony Fulton, Probate Manager
Elizabeth Le Guillou, Advocate
Email: tony.fulton@careyolsen.com
Email: elizabeth.leguillou@careyolsen.com
Email: willsandprobatejsy@careyolsen.com
Telephone: +44 (0)1534 822410
Telephone: +44 (0)1534 822280
