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ISLE OF MAN SUCCESSION LAW AND RELATED MATTERS

21 August 2013

STEP (Isle of Man) Limited

by

Paul Kerruish

Advocate / Director

Dougherty Quinn

www.dq.im

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Overview

• Freedom of disposition of your estate under Isle of Man Law

• Summary of Isle of Man Intestate succession

• Making a valid Will and challenges and rectification of Wills in the Isle of Man

• Summary of the process of making an Application for a Grant of Probate / Letters of Administration in the Isle of Man

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FREEDOM OF DISPOSITION OF YOUR ESTATE UNDER ISLE OF MAN LAW

• Complete freedom of testamentary disposition has for a very long time been the characteristic of English and Manx law

• There is no right to an inheritance and no rules on forced heirship, unlike many civil law and Islamic jurisdictions

• HOWEVER forced heirship still needs to be considered when both drawing up a Will or administering one, as should the testator own assets in a jurisdiction where there are rules on forced heirship then they may have an impact

• ‘Movable Property’ or what is sometime called ‘Personal Property’ generally devolves in accordance with the laws of the jurisdiction where the testator dies domiciled

whereas

• ‘Immovable Property’ or what is sometime called ‘Real Property’ generally devolves in accordance with the lex situs (being the law of the country in which the are situated)

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• Countries such as France, Spain, Portugal, Belgium, Cyprus and even Scotland all have varying degrees of forced heirship which need careful consideration when a Will is being prepared or administered, even if it is for a Manx domiciled and resident person.

• Some countries have carve outs provided strict requirements are followed

• The extent of estate covered by the forced heirship also varies but generally impacts one third to a half – sometimes only Real Property

• If a person owns foreign assets and particularly Immovable or Real Property which may be subject to forced heirship then they should generally make a Will in that jurisdiction even if Manx domiciled and resident and take local advice on the relevant position

• Great care must however be taken when making multiple Wills not to inadvertently revoke your main IOM Will - be very specific what jurisdiction to which the Will relates – commonly you will have an Manx Will but then specifically exclude the territory in which the foreign property is held

• BUT important not to then inadvertently create a partial intestacy where the person carves out a jurisdiction and then forgets to make the foreign Will

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• Having said that there is complete freedom of testamentary disposition and no forced heirship in Manx Law………….there is a caveat!

Inheritance (Provision for Family and Dependants) Act 1982 (“1982 Act”).

• This legislation was first introduced in the Isle of Man as the Inheritance (Family Provision) Act 1939 now replaced by the 1982 Act and provides for various classes of person to be able to make a claim against an estate if the disposition effected by either the deceased’s will or under the law’s of intestacy, or a combination of the same, ”is not such as to make reasonable financial provision for the applicant.”

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The 1982 Act (section 1) applies to the estate of any person who dies domiciled in the Island and is

survived by any of the following:

• Spouse or civil partner

• Former spouse or civil partner who has not yet married/former a new civil partnership

• A person who was for a period of two years prior to the deceased’s death living in the same household as the deceased and as the husband or wife of the deceased

• A person who was for a period of two years prior to the deceased’s death living in the same household as the deceased and as the civil partner of the deceased

• a child of the deceased

• any person (not being a child of the deceased) who, in the case of any marriage or civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage or civil partnership

• any person (not being a person included in the above) who immediately before the death of the deceased

was being maintained, either wholly or partly, by the deceased

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Meaning of ‘reasonable financial provision’ (Section 1(2))

• In respect of applications by the spouse or civil partner of a deceased, “this means such financial provision as it would be reasonable in all the circumstances of the case for a [husband or wife] [civil partner] to receive, whether or not that provision is required for his or her maintenance”

• In respect of any other applicant under the 1982 Act “means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”

• Spouses / civil partners have the strongest claim due the wording “whether or not that provision is required for his or her maintenance”

• Most common disputes by a spouse are over lack of capital provision i.e. only left life income and perhaps use of a property

• Some consider a rule of thumb as the entitlement being similar to that as would perhaps be awarded should they have been divorcing – clean break preferred

• Children also have a strong claim due to their obvious dependency on their parents for financial provision

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Matters to which the Court will have regard when considering possible additional provision include the

following (Section 3)

• (a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

• (b) the financial resources and financial needs which any other applicant for a family provision order has or is likely to have in the foreseeable future;

• (c) the financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

• (d) any obligations and responsibilities which the deceased had towards any applicant for a family provision order or towards any beneficiary of the estate of the deceased;

• (e) the size and nature of the net estate of the deceased;

• (f) any physical or mental disability of any applicant for a family provision order or any beneficiary of the estate of the deceased;

• (g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

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Additional Factors Involving Spouse / Civil Partner Claims: • (a) the age of the applicant and the duration of the marriage or civil partnership; • (b) the contribution made by the applicant to the welfare of the family of the

deceased, including any contribution made by looking after the home or caring for the family.

Additional factors involving claims by children: • (a) to whether the deceased had assumed any responsibility for the applicant’s

maintenance and, if so, to the extent to which and the basis upon which the deceased assumed that responsibility and to the length of time for which the deceased discharged that responsibility;

• (b) to whether in assuming and discharging that responsibility the deceased did so knowing that the applicant was not his own child;

• (c) to the liability of any other person to maintain the applicant.

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This wide range of factors for consideration make application under the 1982 Act an often expensive and time consuming matter

Wiltcher & Crellin & Wiltcher and Gill (Deceased) CP 2005/50 - www.judgements.im

This case contains a good review of the relevant English case law on interpretation of the 1982 Act, with commentary from Deemster Doyle on its application in Manx law and in which the Deemster made the comment:

“I imagine the world is full of disappointed children who feel aggrieved at what they perceive to be the lack of generosity of their parents. Disappointment on behalf of a petitioner is however not enough to justify the court’s intervention under the Act.”

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Powers of the Court

The Court has a very wide range of powers under the 1982 Act:

• to implement what it considers as reasonable financial provision, including lump sum orders, maintenance order, settlement of property for use by an applicant etc (Section 2) this will vary greatly depending on what estate is available to make the provision

• Interim Order for financial provision can be made if immediate assistance if considered necessary pending trial of the matter (Section 5)

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The Court has the power (Section 10) to make orders to essentially set aside actions by a deceased aimed at defeating entitlements under the 1982 Act : “Where on an application under subsection (1) the court is satisfied (a) that, less than 6 years before the date of the death of the deceased,

the deceased with the intention of defeating an application for financial provision under this Act made a disposition, and

(b) that full valuable consideration for that disposition was not given by

the person to whom or for the benefit of whom the disposition was made (in this section referred to as ‘the donee’) or by any other person, and

(c) that the exercise of powers conferred by this section would facilitate

the making of financial provision for the applicant under this Act,”

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General provisions • Applications must be brought within 6 months from the date upon which

representation with respect to the estate is first taken out otherwise permission of the Court is required (Section 4)

• Unless ordered otherwise by the Court an order for periodical payments made to a spouse or civil partner will cease to have effect on the applicants further marriage or entry of a new civil partnership (section 19)

• The 1982 Act contains a significant number of provisions impacting upon divorce / dissolution of civil partnership proceedings

• Claims under the 1982 Act are now increasing with the ‘’divorce generation” now reaching life expectancy and generally revolve around issues such as:

– lack of capital provision for the second wife

– all estate being left to the second wife without secured provision for children of the first marriage

– complications created by the limited entitlement of a spouse under the rules on intestacy set out in Part III of the Administration of Estates Act 1990

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SUMMARY OF THE ISLE OF MAN INTESTATE SUCCESSION

• The Isle of Man law on intestacy succession is provided for within the

Administration of Estates Act 1990 (“the 1990 Act”)

• “intestate” includes a person who leaves a will but dies intestate as to some beneficial interest in his estate (section 64)

• The headline position on intestacy is set out in section 20 of the Act that “Where a person dies without leaving a valid will, his estate vests in the Treasury.”

• However, such vesting ceases upon issue of a grant of representation whereupon the provisions of Part III of the Act then regulate the beneficial entitlement to the deceased’s estate who has died intestate

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The primary provisions are set out in section 52 of the 1990 Act:

52 Succession on intestacy (1) The residuary estate of an intestate shall be distributed in the following manner or held on

the following trusts —

(a) If the intestate leaves a spouse or civil partner but no issue, the residuary estate shall be held in trust for the surviving spouse or civil partner absolutely.

[Note: no provision for co-habitee]

(b) If the intestate leaves both a spouse or civil partner and issue, then —

(i) the surviving spouse or civil partner shall take the personal chattels absolutely, and

(ii) in addition the residuary estate (except the personal chattels) shall stand charged with the payment of a net sum of £250,000, free of duties (if any) and costs, to the surviving spouse or civil partner with interest at such rate as the Treasury may by order prescribe from the date of death until paid or appropriated, and

(iii) subject to providing for that sum and the interest thereon, the residuary estate (except the personal chattels) shall be held, as to one half, on trust for the surviving spouse or civil partner absolutely, and as to the other half, on the statutory trusts for the issue of the intestate.

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(c) If the intestate leaves issue but no spouse or civil partner, the residuary estate shall be held on the statutory trusts for the issue of the intestate.

(d) If the intestate leaves no spouse or civil partner and no issue but both parents, the residuary estate shall be held in trust for the father and mother in equal shares absolutely.

(e) If the intestate leaves no spouse or civil partner and no issue but one parent, the residuary estate shall be held in trust for the surviving father or mother absolutely.

(f) If the intestate leaves no spouse or civil partner, no issue and no parent, the residuary estate shall be held in trust for the following persons living at the death of the intestate, and in the following order and manner —

(i) on the statutory trusts for the brothers and sisters of the whole blood of the intestate; but if no person takes an absolutely vested interest under those trusts, then

(ii) on the statutory trusts for the brothers and sisters of the half blood of the intestate; but if no person takes an absolutely vested interest under those trusts, then

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(iii) for the grandparents of the intestate and, if more than one surviving the intestate, in equal shares, but if there is no member of that class, then

(iv) on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate); but if no person takes an absolutely vested interest under those trusts, then

(v) on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate); but if no person takes an absolutely vested interest under those trusts, then

(vi) on the statutory trusts for the great-uncles and great-aunts of the intestate (being brothers or sisters of the whole blood of a grandparent of the intestate); but if no person takes an absolutely vested interest under those trusts, then

(vii) on the statutory trusts for the great-uncles and great-aunts of the intestate (being brothers or sisters of the half blood of a grandparent of the intestate).

(g) If no person takes an absolute interest under paragraph (a) to (f), the residuary estate of the intestate shall belong to the Treasury as bona vacantia.

(2) – (6) misc clauses (7) Where an intestate’s spouse or civil partner survives the intestate but dies before the end of

the period of 14 days beginning with the day on which the intestate died, this section has effect as respects the intestate as if the spouse or civil partner had not survived the intestate.

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Statutory Trusts

This line of succession is then further enhanced by the provisions of section 53

which in simple summary provides that:

• where any interest devolves to a child under 18 then such interest is to be held on trust for them until they attain the age of 18; and

• where any person is stated as entitled but they have predeceased the deceased leaving issue then such issue shall take their share in equal shares subject again to the statutory trust until they attain 18 years

i.e. if a deceased dies leaving no spouse/civil partner, no issue, no parent but one brother and one previously deceased sister who had two sons before she died which survived the deceased – then the brother would get one half and the two nephews would get one quarter each held on statutory trust until the attained 18 years

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Further qualification of Spouse / Civil Partner interest on partial intestacy • A partial intestacy is where any person dies leaving a Will effectively disposing of

part only of their estate – this often occurs due to an error in the drafting of the Will and can sometimes be avoided by seeking rectification of the Will but otherwise that part of the estate not dealt with effectively by the Will then devolves in accordance with Part III of the Act.

• This is a further reason why having a Will draw up professionally is very much advisable.

• Section 56 (2) further qualifies the interest a Spouse /Civil Partner will receive in the event of a partial intestacy and essentially offsets their beneficial interest under the Will against their statutory entitlement under the partial intestacy.

For example: If a Spouse has already received £100,000 in assets under the terms of her

husband’s Will but there remains £300,000 of further assets falling into the partial intestacy to devolve to her and her only son, then in respect of the partial intestacy the Spouse will receive the first £150,000 of estate rather than £250,000 as provided for in section 52 (1) (b) as this is treated as having already received £100,000 under the Will and then the balance of £150,000 will be divided as to £75,000 to her and £75,000 to her son

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SUMMARY OF ISSUES SURROUNDING WILL VALIDITY AND RECTIFICATION OF WILLS

• Having a badly written Will is just as bad, if not worse, than having no Will at all.

• Will writing is an expert job and often not given the importance it deserves. A Will is probably

one of the most important documents you will ever sign and yet some statistics state as many as 80% of under 30s have not made a Will, over 35% of over 55s have not done so and as many as 70% of parents with children under 18 have not made a Will.

• So, if you do make a Will it is even more important it is a valid one!

The validity of Wills is governed by the Wills Act 1985 (“Wills Act”) The following are the primary criteria for a valid Manx Will:

– You must be 18 or over

– It must be in writing, signed by the testator or by some other person in his presence

– It appears the testator intended the signature to give effect to the Will

– The signature of the testator is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time

– Each witness must sign the Will in the presence of the testator

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Common law requirements for validity of a Will

In addition to the statutory requirements there are a number of fundamental common law requirements for a Will to be validly made

These can be summarised as a requirement that :

– The testator must be of sound mind, memory and understanding at the time they make the Will. This is commonly referred to as a testator being of sound disposing mind

– That the testator must have knowledge and approval of the contents of the Will

– That there must have been no undue influence on the testator when making the Will

All of these headings are very usefully commented upon by Deemster Corlett’s in his judgement in the 2010 case of the Walshaw & Otr v Scott & Otrs Ord 2010/38 - www.judgements.im

This case very helpfully sets out much of the Manx common law on the issue of validity of a

Manx Will and is a recommended read on the topic with useful summary by the Deemster of the applicable English common law history to many of the headings

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Sound Disposing Mind

• A testator must not only be able to understand that he is by his will giving his property to one or more objects of his regard, but he must also have capacity to comprehend and to recollect the extent of his property and the nature of the claims of others whom by his will he is excluding from participation in that property.

• The test in Banks v Goodfellow (1870) LR 5 QB 549 remains good law. It is essential that no disorder of the mind should poison the testator's affections, pervert his sense of right or prevent the exercise of his natural faculties, that no delusion should influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

• when a Will has been drawn in accordance with the instructions of the testator, while of sound disposing mind, a perfect understanding of all the terms at the time of execution may not be necessary.

• if there is sufficient intelligence to understand and appreciate the testamentary act in its different bearings, and sufficient memory to react when prompted, the power to make a will remains.

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Is there a presumption of capacity ?

• There is a rebuttable presumption that a person had capacity when the Will was made but is dangerous to rely on this as to capacity if there is any question as to capacity at the time the Will is made.

• If in doubt the prudent action is to seek a medical opinion on capacity at the time of the Will being made to later rely upon should it be challenged – often used for elderly clients, especially if suffering memory issues.

• Recent case law has held a patient although suffering from dementia did still have sound disposing mind at the time he gave instructions for the Will.

• The Courts are reluctant to interfere with the right of elderly persons to go about making Wills but due to infirmity and increasing geriatric conditions, great care must be taken to keep a record or obtain evidence of mental capacity at the time a Will is made.

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Knowledge and Approval

The general rule is evidence of due execution of the Will establishes prima facie presumption of knowledge and approval

• emphasises the importance of a professionally drawn Will which ensures the appropriate attestation clause is included in the Will – for example with a blind person there is a requirement of affirmative evidence of knowledge and approval which will usually be contained in the attestation clause at the end of the Will stating that the same was read over to the testator in the presence of the witnesses and he indicated her understood and approved the same

• Standard Example of an Attestation clause:

– Signed and declared by the Testator as and for his Last Will and Testament in our presence (both present at the same time) when in his presence and in the presence of each other have hereunto subscribed our names as witnesses

• There is no statutory requirement for an attestation clause but it greatly assists

establishing the prime facie presumption of knowledge and approve

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• If a person who benefits from the Will also drew up the Will or helped draw up the Will this creates a ‘suspicion’ which also rebuts the prima facie presumption of knowledge and approval and requires affirmative evidence of knowledge and approval

• It is not the law that in no circumstances can a lawyer or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and zealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may on the other hand be so grave that it can hardly be removed (Wintle v Nye [1959] 1 All ER 552 at 557.)

• As a matter of common sense and authority, the fact that a Will has been properly executed, after being prepared by a lawyer and read over to the testator, raises a very strong presumption that it represents his intentions at the relevant time namely the moment of execution

(paragraph 14 Gill v Woodall [2010] EWCA Civ 1340)

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Undue Influence • The burden of proof is on that person alleging undue influence to discharge

• Persuasion is not unlawful, but pressure of whatever character if so exerted to overpower the volition without convincing the judgment of the testator, will constitute undue influence, though no force is either used or threatened (Hall v Hall LR 1 P& D 481)

• Once again if there is a clear and concise attestation clause stating the testator knew and understood what he was doing and did so before witnesses then this will make the burden of proving undue influence and difficult one to discharge

• It is always good practice to take instructions from a testator without potential beneficiaries present to partially address subsequent allegations of undue influence. Family members with elderly relatives can sometime get over zealous in encouraging them to make a new Will to organize their affairs and when preparing a will you always need to be mindful of the many forms undue influence can take

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Things to watch out for

• Gifts in a Will to a witness or the spouse of a witness are void – (Smith (Deceased) and Smith CP 2002/79) - www.judgements.im

• A Will is revoked by the testators marriage unless on the face of the Will the testator clearly intended it not to be revoked by the marriage (section 7 of Wills Act)

• The testators divorce will effectively nullify any appointment as executor or making of a gift to the former spouse unless the contrary intention appears in the Will (section 8 of Wills Act)

• You cannot alter a Will by just making an alteration to the original unless the alteration is executed in the same manner in which a new Will would be required – always amend a Will either by making a fresh Will or a Codicil to the original Will (section 10 of Wills Act)

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Rectification of a Will

• Section 20 of the Wills Act provides for a mechanism whereby “..if the

High Court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence of a clerical error, or of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions.”

• Applications will obviously require extrinsic evidence as to the testator’s actual intent.

• May be more difficult if home made will and no ancillary record of their intent, such as notes taken when giving instructions for a Will to be drawn up professionally.

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Clerical error Very helpful Manx case on the topic and setting out the analysis of

relevant prior English case law is that of The Church of England Pensions Board and Squire CP 2006/111 - www.judgements.im

• The case highlights the danger of trying to specify the assets you own in your Will too prescriptively and then in error omitting to deal with all your assets. In this case the testatrix stated “I give the residue of my estate from the Isle of Man Bank, Barclays Bank, Lloyds TSB and this bungalow 55 Ballamaddrell Port Erin if still in my possession or the money obtained for it, to the Church of England Pensions Board…”

• The problem is she left additional investments not dealt with by the Will on its face which unless rectified would have gone to the Treasury due to a partial intestacy. The Court considered extrinsic evidence in those circumstances, including witnesses as to the testatrix intention etc and ultimately held she had intended to leave all her residuary estate to the Board and rectified the Will accordingly.

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Failure to understand his instructions

• Can sometimes lead to professional negligence claims against will draftsmen but even in such cases a claimant would be expected to seek to mitigate their loss and first try and seek rectification of the Will

• In the Manx case Penn Re Bushell (Deceased) Ord 2010/35 - www.judgements.im Deemster Doyle sets out a useful review of the law on rectification due to a failure to understand instructions given to an Advocate.

• The error was a simple failure to make a legacy unconditional when there was evidence the testator had instructed this to be so after having seen a first draft that made the gift conditional on the prior death of the testator’s husband. The residuary beneficiaries were Manx and UK charities so hence no ability to agree a variation by Deed of Family Arrangement.

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Timing

• Claims for rectification cannot be brought after six months of the grant of representation without permission of the Court.

• Penn Re Bushell (Deceased) contains a details analysis of the issue the Court’s discretion to allow applications out of time. Deemster Doyle found the following a useful summary of the position:

• “As was stated in McNulty v McNulty [2002] EWHC 123 (at paragraph 91) the

time limit should not be regarded as a disciplinary provision which should be enforced for its own sake. Its main purpose is to provide a measure of protection to personal representatives and a measure of certainty to beneficiaries by enabling the estate to be distributed once the six-month period has elapsed. The periods of delay, inexcusable as some of them were, have not caused any undue prejudice to the active Defendants or indeed to the Defendants generally.”

• Delay may harm successful rectification.

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Directions from the Court as to interpretation of a Will

• Section 61 of the Trustee Act 1961 gives power of any Executor or trustee to

apply to the Court “for the opinion, advice, or direction of the court on any question respecting the management or administration of the trust property, or the assets of any testator or intestate, such application to be served upon, or the hearing thereof to be attended by, all persons interested in such application, or such of them as the court shall think expedient”

• Can be useful remedy where wording of the Will is simply confusing but not so defective as to require rectification.

• Useful Manx case illustrating the power is Smith (Deceased) and Smith CP 2002/79 - www.judgements.im Here a testator had created a home made Will which he made in two different coloured pens but ultimately the Deemster considered the evidence adduced supported the fact the Will was complete when witnessed and there were no additions. An example where the witnesses was also a beneficiary and accordingly her legacy was declared void!

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Deed of Family Arrangement

• Alternative resolution option if clear errors in the Will’s intention or simply

agreement between the beneficiaries to a Will that the terms are not what is considered reasonable financial provision for those that were perhaps expected to benefit.

• Simply requires all those beneficiaries impacted by any change to agree and for that to be documented in a Deed of Family Arrangement.

• This cannot be used if any minority interests arise, as they are obviously unable to indicate their consent and in those circumstances either rectification or an application under the Inheritance (Provisions for Family and Dependants) Act 1982 would be required.

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Facts to consider when drafting a Will although

not pre-requisites for validity

• Full name and ensure proved identify of person giving the instructions

• Statement of Domicile – domicile of origin or domicile of choice

• Is foreign property involved and does there need to be a jurisdiction carve out

• Election of burial or cremation – executor legally responsible for disposal of the body

• Appointment of Executors and Trustee – consent sought – onerous role

• Remuneration to Executor or trustee

• Appointment of testamentary guardians for infant children

• Legacies – monetary gifts

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• Bequests – personal chattel gifts – memorandum of wishes

• Devise – gifts of property interests

• Rights to occupy property – considerations on repair, rates, insurance etc

• Age at which beneficiaries to receive gifts made – statutory age of entitlement is 18 unless otherwise provided

• Residuary estate – “less funeral and testamentary expenses, legacies and debts I shall have at the date of my death”

• Consider making provision for the event of a beneficiary pre-deceasing the testator

• Ensure in making the Will the testator fully understand what they are likely to leave – joint assets will not become part of the estate and likely devolve to the joint holder

• Give consideration to possible claims under the provisions of the Inheritance (Provision for Family and Dependants Act) 1982

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SUMMARY OF THE PROCESS OF MAKING AN APPLICATION FOR A GRANT OF PROBATE / LETTERS OF ADMINISTRATION IN THE ISLE OF MAN

• With effect from 1 July 2013 the Isle of Man Courts significantly increased the fees payable for extraction of a Grant of Probate or Letters of Administration (arguably an almost indirect introduction of a form of inheritance tax that has attracted great criticism from practitioners and now enhances even more the need to consider estate planning steps that could be taken to mitigate this potentially significant cost)

• In July 2013, the Courts have consequently issued fresh guidance notes in respect of the process of making such Application

• Rather than re-invent the wheel a copy of those Guidance Notes follow for your review

• The procedures governing a Application for Probate / Letters of Administration are governed by the Probate Rules 1988 (as amended) - www.courts.im/courtprocedures/willsandprobate/legislation

• Administration of the estate of a deceased, is then governed by the provisions of the

Will itself and those of the Administration of Estates Act 1990

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Types of Grant: • Grant of Probate – where a valid Will exists and is being first proved in the Isle of

Man

• Letters of Administration – taken out when the deceased has died intestate

• Letters of Administration with Will annexed – taken out where:

– There is a will but no executor appointed or one appointed who has died or become mentally incapable before proving the Will

– There is a will but the executor has renounced probate

– There is an appointment of Executor but it is void for uncertainty

– There is a Will which has either has already had Probate extracted in

the jurisdiction where the deceased died domiciled or there is a partial intestacy

• Grant of Probate de bonis non – taken out when a Will is only part administered

and the executors have died intestate

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Who can apply:

Probate • The appointed Executor or such person as shall be entitled to extract

probate of the Will through the chain of executorship

Administration • To any person within the Island who takes a beneficial interest under

the Will being annexed or who takes under the Intestacy rules

Where the Deceased dies domiciled outside the Island • To the person entrusted with the administration of the estate by the

court having jurisdiction at the place where the deceased died domiciled; and

• If these is no such person, to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled; or

• Such other person as the Court may direct

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Sources

Williams on Wills – Butterworths

Tristram & Coote’s Probate Practice – LexisNexis

Isle of Man Judgements online – www.judgements.im

Isle of Man Legislation online – www.legislation.gov.im

Isle of Man Courts - www.courts.im/courtprocedures/willsandprobate

www.dq.im

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DQ’s specialist Private Client Team:-

Annemarie Hughes Paul Kerruish

Director Director

annemarie@dq.im paul.kerruish@dq.im

+44 1624 632965 +44 1624 632977

Donna Matthews

Senior Associate

donna@dq.im

+44 1624 632983

Dougherty Quinn Limited is an incorporated practice in the Isle of Man, company number 119175C. Registered Office: The Chambers, 5 Mount Pleasant, Douglas, Isle of Man, IM1 2PU. Directors: Tom Maher, Walter Wannenburgh, Mark Dougherty, Giles Hill, Annemarie Hughes, Paul Kerruish.

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