26 May 2015
Making a Will in Guernsey
On 2 April 2012 The Inheritance (Guernsey) Law 2011 came into force which has replaced Guernsey’s forced heirship regime with a system of full testamentary freedom (accompanied by family and dependent provisions).
Any individual who currently has a will executed before 2 April 2012 should be aware that any forced heirship provisions will be preserved unless they execute a new will or codicil incorporating the new provisions or unless their will stipulated that the new provisions should apply.
It is now, more than ever, important for those who do not have wills to record their wishes to ensure that assets are left to the correct beneficiaries.
This note highlights the key issues that any individual domiciled in Guernsey and/ or owning Guernsey real estate should consider when drawing up a will. It also highlights foreign wills for non-resident/ non-domiciled individuals holding assets in Guernsey.
What is a will?
Why make a will?
How can I make a will?
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 and invalid. There are a number of formalities associated with making a will. For example, a will of personal estate and real estate must be signed or acknowledged by the testator (the person making the will) in the presence of two witnesses who are both present at the same time. These witnesses must be over 14 years of age and not be beneficiaries or spouses of beneficiaries under the will.
What information should be included in a will?
Not only can a will refer to the disposal of a person’s estate, it can also include additional information. For example, it can express a person’s wishes as to whom they would like to administer their estate or care for minor children. It might also include wishes relating to trust provisions and deferment clauses, specific legacies and burial/cremation wishes.
How much does it cost?
This of course depends on how complicated the will is, however, we would be very pleased to provide a fee estimate for you at the outset.
Can anyone make a will?
To make a will a person must have what is known as testamentary capacity. In general terms this means that the person making the will, must be of full age (18 years old) and sound mind. It is usual to have the testator’s capacity confirmed by a medical opinion when dealing with elderly or infirm testators.
Can a will be changed?
A will can be amended as often as a person might chose, within the appropriate legal framework, provided they retain the necessary testamentary capacity. It is possible to change the terms of a will at any time or even revoke the whole thing. It is always advisable for a will to be reviewed if personal circumstances have changed, particularly in light of the new inheritance laws.
What happens if a person dies without having made a will?
In this case, a person is said to have died intestate. At this point the law sets out clear rules as to who will inherit upon the death of a Guernsey domiciled or realty owning individual.
The following table sets out the basic rules for if you die intestate (without a will in place). For more detailed explanation please contact one of our team.
|REAL ESTATE INTESTACY||PERSONAL ESTATE INTESTACY|
No spouse / civil partner
|Heirs at law||Heirs at law|
|Spouse / civil partner but no descendants||Whole to spouse / civil partner||Whole to spouse / civil partner|
|Descendants but no spouse / civil partner||Whole to descendants||Whole to descendants|
|Spouse / civil partner & descendents||
Spouse / civil partner will receive:
1. an undivided 1/2 share of the matrimonial home;
2. an undivided 1/2 share of any other realty; and
3. life enjoyment until death or remarriage of the remaining 1/2 share of the matrimonial home.
The descendants will receive the rest.
1/2 to spouse / civil partner
1/2 to descendants
The rules regarding who inherits (heirs at law) if a person dies without a spouse, civil partner or descendants are more complex and can be explained upon request.
Types of property
To whom may I leave my realty?
An individual has full testamentary freedom as to whom they may leave realty. However, the law provides that certain family members or dependants who have not received “reasonable financial provision” under the terms of the deceased’s will may apply to the court for provision to be made for them. The court has power to make various orders as it thinks fit. Legal advice should be sought as to the relevant merits of any claim.
Does it make any difference if I am divorced?
What happens to my realty when I die?
Immediately upon your death, Guernsey law provides for your realty to vest in either your heirs at law or your named beneficiary. Registration of your will of realty evidences the fact of your heirs inheriting the property. After registration of the will dealing with realty it will become a public document. This should be borne in mind when deciding whether to have one will dealing with both personal and real estate or to keep them separate.
To whom may I leave my personalty?
As with realty an individual has full testamentary freedom as to whom they leave their personalty, subject to provisions for family and dependants.
Appointing an executor
An executor is appointed to carry out the personal wishes of the testator as expressed in the will of personalty. Every will of personalty should appoint an executor whose duties will be defined in that will. An executor obtains probate of the will. Generally, anyone can be an executor provided that person is of age and sound mind. It is advisable to check with your intended executor that they are happy to carry out the role. Your lawyer will generally be prepared to act as your executor. An executor is not required for a will of realty.
What is a Grant of Probate?
Probate is an order of the Ecclesiastical Court which confirms the authority of the executor to administer the personal estate of the deceased. The executor swears an oath that they will administer the estate in accordance with law and render an account when called upon to do so. Some institutions may not release funds/ assets without a grant of probate so it is important to ascertain where one is required.