Writing and updating your Will

Why make a Will?

Often people don’t like thinking about making a Will, and it’s surprising how many of us die without making one.

Making a Will is relatively straightforward and is the easiest way to ensure that ones wishes are carried out after ones death.

In particular, one can ensure that ones family and loves ones are taken care of.  If you don’t leave a Will, your estate will devolve in accordance with the laws of intestate succession, which can mean that unintended beneficiaries end up inheriting.

Writing a Will also gives you the last possible chance to leave a bequest to a charity (such as Hospice).  You may feel that you haven’t been as generous as you might have been giving to charity during your lifetime so this is your opportunity to make up for past parsimoniousness.

Two types of property in Jersey

The practice, in Jersey, is to have separate Wills for realty (ie freehold or flying freehold land or buildings) and personalty (everything else) – partly because different rules apply to each and partly because different parts of the Court deal with each.

Contents of a Will of Personalty

The main things that it’s helpful to include in your Will of Personalty are the following:-

  1. who you’d like to be your executor (e.g. a close friend or relative or your lawyer);
  2. whether you want to be buried or cremated and where (eg buried in a church graveyard or your ashes scattered in the sea);
  3. to whom you want to leave any specific items (eg an item of jewellery to a niece or some shares to a nephew);
  4. to whom you’d like to leave your main (“the rest and residue”) of your estate (eg spouses or partners might like to leave everything to each other and then equally to any children and thereafter (if they die first) to any grandchildren).

Contents of a Will of Realty

Wills of Realty are usually a bit more straightforward because there is no executor to appoint, no estate to administer and generally only one property to worry about.

The main consideration therefore is simply:  to whom do you want to leave your realty – either to one person or to a number of people?  If you’re leaving it to more than one person, you have a choice between leaving it to them jointly (in which case, if one of them dies, the survivor(s) automatically become sole owner(s) or as tenants in common, which means that the beneficiaries take in individual shares thereby enabling each of those beneficiaries to leave their respective share to whoever they choose (in their Wills).

Forced heirship rules

Anyone who owns Jersey realty is free to leave it to whomever they want but, for people domiciled in Jersey (ie people who regard Jersey as their permanent home), the position is different with regard to personalty.

As Jersey law stands at the moment (there is a draft law in the pipeline making it possible to more or less leave anything to anyone) a spouse or civil partner is entitled to a third of ones net personal assets (plus the household effects); one’s children are entitled to a third (between them); and one can do whatever one likes with the remaining third.

If those rules are contravened, it doesn’t make the Will invalid but whoever hasn’t been left what they are entitled to can challenge the Will (to get that entitlement).  Some spouses/partners or children who have been left out respect their spouse’s/partner’s/parent’s wishes; others pursue a claim.

DIY Wills

If you want to be sure that it will be valid and effective to dispose of your property as you intend, it’s not advisable to write your own Will.  The wording of Wills is absolutely critical and even the use or non-use, or positioning, of punctuation can dramatically change the whole meaning of a clause.

The casebooks are full of examples of law suits in which the parties have spent thousands of pounds in costs arguing over the interpretation of Wills:  money which should properly have gone to the beneficiaries.

It’s better to spend a few hundred pounds paying a lawyer to get a Will right in the first place than to bring about a situation whereby a court-full of lawyers are paid thousands of pounds after your demise arguing about what you intended to say!

Proper witnesses

Not only is it important to ensure that the wording and punctuation and contents of a Will are correct: it’s also important to ensure that it’s signed and witnessed correctly.  Once again, there is no point going to the trouble of making a Will only to fall at final hurdle by signing it/having it witnessed incorrectly – or not signing it at all!

Don’t alter your Will!

It’s very important not to write on a Will once it has been signed and witnessed.  If you want to make any amendments, you should either make a new Will or (if the amendments are straightforward) a Codicil – which needs to be signed and witnessed with the same care and formality as a Will.

Further advice

If you would like to make a Will or would like some advice about doing so, contact a Jersey Advocate or Solicitor.  They are listed in the telephone directory and on the Jersey Legal Information Board website www.go.je.

The above summary was kindly provided by Advocate Andrew Begg of Andrew Begg & Co who may be contacted on 734234, by emailing absec@begg-law.com or visiting his website at abcjersey.co.uk