Inheritance
• Background information • Types of Estate, Spouse/Civil Partners, Children (slides 3 to 6)
• Immovable Estate • Intestacy , testacy, periods of enjoyment of property (slides 7 to 11)
• Movable Estate • Jointly held assets, Intestacy and testacy (slides 12 to 14)
• Reducing a Will (slide 15)
• Contents of a Jersey Will (slides 16 & 17)
Law Made Simple
Inheritance
Presentation by
Michelle Leverington
Jersey Estates
Movable Estate
Bank Accounts
Shares (including share transfer property)
Jewellery
Cars
Boats
Jersey Immovable Estate
Only covers land in Jersey
Bricks and mortar
Land
Charges registered over land in favour
of the deceased
Spouse/Civil Partnership
Art 8 - Wills & Succession (Jersey) Law 1993
• In order to inherit a spouse/civil
partner must:
– be residing with the deceased – living as a
couple not merely sharing a property
– if they are not then there must be no judicial
separation and the surviving spouse must not
have deserted the deceased without just
cause
Children and Remoter Issue
• Since January 2011 illegitimate children
treated in the same way as legitimate
• If child has died leaving children or
grandchildren then their issue can claim
their deceased parent’s share ‘a la
representation’. They must bring their
claim within a year and a day
Minor Children
• Jersey Courts provide for Tutelles to manage finances
• Committee of 6 Electors plus Tuteur to manage finances
and make decisions
• Property can only be sold with authorisation of the Court
• Accounts to child on 18th birthday – 6 months to object to
way Tutelle has been run
• Can name Tuteur and/or Electors but Court’s discretion
whether to appoint them
• Can name a suggested guardian for the children but again
in Court’s discretion – children’s services likely to be
involved in decision making
Immovable Property: Intestacy The Deceased was:
Married with Children:
Spouse and children in equal shares
Unmarried, Widowed or divorced leaving children :
children in equal shares
Unmarried person leaving children, who died after
29 Jan 2011 : children will share equally
as illegitimate children have same rights
as legitimate children so share equally
Immovable Estate : Intestacy
• The Immovable Estate is held automatically by the
heirs at law and they need take no further action :
they are already the legal owners
• If Immovable Property is owned jointly it may pass
to the survivor : check terms of purchase contract
to verify terms of ownership
• If heirs at law are distant relatives then property
may pass to one side of the family rather than the
other depending upon how land acquired by the
deceased
Immovable Estate : Testate
• Will must be registered in the Public Registry for those named to own the property
• Stamp Duty depends on who inherits – if it is heirs at law then a significant discount
• Spouses must leave life enjoyment of the matrimonial home to their surviving spouse, but children have no claim to Immovable Estate
• Spouse can nominate to take cash alternative – franc dower
Period of Enjoyment –
Rights and Obligations • ‘Tenant’ must :
– Up keep property - excluding grosses
réparations
– Pay buildings insurance
– Permit annual inspection
– Draw the benefit (ie rental, crops)
• ‘Tenant’ may not:
– Change nature of land or damage it
Reversionary Owner –
Rights and Obligations
• Pay for structural or major exterior works
• May sell but subject to life enjoyment
• Annual inspection but not in person
• Receive property at end of enjoyment in
same condition as start
• Seek termination if ‘tenant’ not maintaining
the property
Movable Estate Jointly Held Assets
Usually pass automatically to survivor :
May depend on terms of bank mandate
May be open to attack by heirs claiming
half of the balance - treated as a gift to
Joint account holder
Movable Estate : Intestacy Art 7 Wills & Succession (Jersey) Law 1993
Married without children – all to spouse
______________
Married with children –
First £30,000 and household effects to spouse
Balance split half to spouse half between children
______________
Unmarried, widowed or divorced with children
Split equally between the children
Movable Estate – Testate
Art 7 Wills & Succession (Jersey) Law 1993
Legitime
Unmarried with no children
Free disposition
Married with no children
Spouse entitled 2/3rd
Free disposition over 1/3rd
Married with children
Spouse entitled to 1/3rd
Children (as a group) entitled to 1/3rd
Free disposition over 1/3rd
Unmarried, Divorced or widowed
with children
Children entitled to 2/3rds
Free disposition over 1/3rd
Reducing a Will
• Those disinherited by most recent Will – deceased did not have capacity – earlier Will deemed valid
• Allegation Will registered not most recent and more recent Will made
• Will does not comply with requirements to be valid (ie witnesses to Will not appropriate)
• Movable Will : claim for legitime
• Must bring a claim within a year and a day
Jersey Wills
• Recommend separate Wills for each type of asset (ie Movable/Immovable)
• Different requirements for completion
• Both types require two independent witnesses over 18 years’ old
• Immovable Will must be read aloud and witnesses by Jersey lawyer, States Member or Jurat.
• If signed overseas then a notary may witness
Contents of Jersey Will
• Testator’s name and address
• Revoke previous Wills
• Appoint an Executor
• Confirm Executor to pay debts, expenses
and own professional fees
• Leave specific legacies or gifts
• Residue Clause with provision if those
beneficiaries have predeceased
Living Wills/Advance
Directives
Alexandra Baker
What is as a Living Will/Advance
Directive?
If I don’t have an Advance Directive?
•In these situations, where a patient lacks capacity doctors must act in your best interests (GMC 1998).
If I have an Advance Directive?
•The Advance Directive lets you indicate that you want to refuse certain types of medical treatment in certain situations.
•It must be respected by medical professionals providing your care, whether or not they think it’s in your best interests.
The difference between an Advance Directive and Advance Statement
•Advance Directives let you refuse certain types of treatment, advance statements cover any other decisions about how you would like to be treated.
Advance Statement or Advance
Directive?
1 “I do not wish to go into a nursing home” - a requesting statement giving someone's individual wishes and preference.
2“I am a Christian and wish to be treated according to Christian values” – a statement of general beliefs and aspects of life which someone values.
3“Please consult my Daughter Isabelle” - a statement naming someone who should be consulted at the time a decision needs to be made
4“In the event of cardiac arrest, I do not want to be resuscitated”- a clear instruction refusing some or all medical treatments. This is known as an advance directive.
5“I would like to receive all chemotherapy possible for the cancer” A statement requesting certain types of treatment that someone would want to receive in certain circumstances; or
6“Should my dementia get so bad that I do not remember my family, I do not wish to receive CPR” - a statement setting out a degree of irreversible deterioration after which no life sustaining treatment should be given.
Limitations of the Advance
Directive
An Advance Directive cannot:
• Ask to withhold ‘basic care,’ defined by the British Medical Association (BMA) as ‘procedures essential to keep the individual comfortable, e.g. warmth, shelter, pain relief and the management of distressing symptoms’
• Authorise a doctor to do anything unlawful e.g. Euthanasia
• demand care the healthcare team considers inappropriate in your case
• refuse the offer of food and drink by mouth
• refuse basic nursing care that is essential to keep you comfortable such as washing, bathing and mouth care.
How Formal?
• Only a properly written ‘advance directive’ is legally binding.
• Oral Statement?
What details should an Advance
Directive Contain?
• Full name and Address.
• Name and address of GP.
• Whether advice has been sought from health professionals.
• Signature.
• Date drafted and reviewed.
• Witness signature. – ideally someone independent
• A clear statement of the patient's wishes, general or specific.
(Source BMA Guidance)
Also helpful to:
• Ask your doctor or another relevant professional to sign a statement on the document stating that they have carried out an assessment of you and, in their opinion; you have the mental capacity to make the decision.
• have the name, address and telephone number of any person that the patient would wish to be consulted about treatment in the event of mental incapacity. A proxy decision maker. -Their decisions will have no legal standing but views can be taken into account.
Capacity to make an Advance
Directive
• When making an Advance Directive you must have Capacity.
• Advance Directives made by people under 18 are not legally binding and can be over-ruled by a court or person with parental responsibility, but nevertheless they should be taken into account and accommodated if possible.
• You should be mentally able and not suffering any mental distress. You must understand the implications of your decisions.
Who to Consult about an
Advance Directive?
• Not necessary to involve a Advocate/Solicitor, although you may wish your legal adviser to confirm that your views are clearly presented in the document.
• It is always advisable to discuss your intentions with a medical professional, such as your GP, and your family and friends.
• If you have a terminal illness, you may wish to speak to the doctor involved in your care about making an advance directive.
Where should I keep my
Advance Directive?
Is an Advance Directive the same as a
Lasting Power of Attorney?
• No, a Lasting Power of Attorney is UK Concept
under the UK Mental Capacity Act.
• Advance Directives or Living Wills are solely
associated with end of life healthcare decisions, not
decisions about finances and general wishes.
Satisfactory?
Things to consider before making
an Advance Directive
An Advance Directive can only reflect a
person’s wishes at the time at which it was
written, things may change.
An Advance Directive cannot be used to:
• Refuse basic nursing care, i.e. basic hygiene
and pain relief
• Stop staff offering you food and drink by mouth
• Request euthanasia or unreasonable treatment