En Voyage_Issue#14_Flickbook

Business
‘THE LAW OR THY
WILL BE DONE…’
BY JAEL CRYSTAL-AZAH TEP, ASSOCIATE AT BABBÉ LLP
WHAT HAPPENED
IN THE PAST?
The principles of the laws of
succession in Guernsey originate
from Norman French customary
law. Over time legislation
has made changes but some
Norman features remain.
One particular feature was
‘Forced Heirship’. This imposed
various restrictions on an
individual’s ability to dispose
of his property. A surviving
spouse and legitimate children
had automatic rights to inherit
a part of the deceased’s estate.
These rights overrode any will.
Consequently, many people did
not make wills, especially wills of
Realty, when they had children.
We often encounter individuals
who believe they have a will
which covers all their assets only
to learn that the will just covers
their personal estate (Personalty).
It is worth stating here that
Realty comprises land and
structures built or fixed on the
land, whilst Personalty includes
money, investments such
as stocks and shares, motor
vehicles and insurance policies.
WHAT THE LAW
PRESCRIBES TODAY
Two significant legal changes
have occurred in recent times.
The Law Reform (Inheritance
and Miscellaneous Provisions)
(Guernsey) Law 2006, abolished
the discrimination against
illegitimate children. Nowadays any
surviving illegitimate heir(s) would
rank equally with legitimate heirs.
This leads to various issues if
there is no will, particularly with
regard to Realty. How do you
show that you have no illegitimate
heirs? Sales of property can
be delayed as a result. A Court
application may be required,
which can incur significant costs.
Sale proceeds of Realty are then
held on trust for the heirs and
distributed six years after the sale
unless the Court directs otherwise.
The Inheritance (Guernsey)
Law, 2011, abolished ‘Forced
Heirship’ going forwards, giving
people the freedom to dispose
of their estate as they wish.
This freedom is not absolute, in
the sense that provisions exist to
protect the interests of a spouse,
children and other financial
dependants. For example, if a
person dies leaving a spouse
and children and excludes them
wholly from his will, the spouse
and/or children could bring a
claim through the Courts for
‘reasonable financial provision’.
These changes in the law
were not retrospective therefore
one should check any existing
wills to ensure that they
achieve what is intended.
It is debatable in some cases
whether the provisions of the law
today provide more freedom than
the Norman customary laws, but
one thing is certain: it is better to
make a will clearly stating your
wishes than not to make one.
WHAT HAPPENS IF I DIE
WITHOUT MAKING A WILL?
The Law determines what
happens to an individual’s
estate should he or she die
without leaving a valid will. The
consequences may not necessarily
be in line with the individual’s
wishes. For example, if there are
surviving children and spouse,
the surviving spouse inherits
one-half share of the deceased’s
Personalty and the children
inherit the remaining one-half
share equally between them.
Jael Crystal-Azag TEP,
Associate at Babbé LLP
Common law marriage is a myth
- there are no automatic rights of
inheritance for unmarried persons.
In an age where cohabitation
or second and third marriages
are becoming increasingly
common, it is even more
pertinent to ensure that one
makes provision for loved ones.
In making a will, if one intends
to exclude a child, spouse, or
other financial dependant, it is
advisable to take legal advice,
and perhaps consider:
leaving a small legacy which
would be forfeited if such
beneficiary challenges the will;
writing a detailed letter of wishes,
or including a clause within the
will, explaining why they wish
for such individual(s) to receive
a smaller sum or be omitted
altogether from inheriting
from their estate; and/or
what the Court may consider
is “reasonable financial
provision” if the terms of the
will were to be contested
If you or someone you know
are affected by any of the above
matters, then please contact us
as we will be happy to discuss
and advise you further.
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