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