Contentious Probate In Guernsey: Making A Will - Wills/ Intestacy/ Estate Planning

Introduction

In this introductory Briefing Note, we consider the key issues that you should have in mind when drawing up a will in Guernsey.

It is the first Briefing Note in a series in which we will go on to examine the variety of issues that may arise in connection with the drafting, execution and administration of a Guernsey will, and disputes that can arise.

Where a dispute arises, this is known as "contentious probate". Such disputes can include:

disputes over whether a will or codicil is valid such as, where the deceased person lacked legal capacity to make a will at all and even if they did, whether undue influence was brought to bear on the person making the will (the testator)
claims for financial provision from a deceased's estate whatever the will says as, under Guernsey law, certain family members or dependents may apply to the court where they consider that the testator has failed to make 'reasonable financial provision' for them
construction claims – where clarity is sought as to the meaning and effect of the provisions of a will
rectification claims - applications to amend a will to accord with the true intentions of the testator
disputes about the administration of an estate and how property has been distributed
executor/trustee disputes
when it is necessary to seek a statutory will
professional negligence claims in respect of will drafting and/or estate administration

Why make a Guernsey will?

On 2 April 2012, The Inheritance (Guernsey) Law 2011 ("the 2011 Law") came into force replacing Guernsey's forced heirship regime and, since then, individuals have been free to dispose of their property upon their death as they see fit ('free testamentary disposition'). Careful drafting is essential to ensure that a will is legally valid. However, whatever the will says, a relevant person can apply for 'reasonable financial provision' from the estate and the court will decide if they should get it (called a 'dependency claim'). In the absence of a will (i.e. where a person dies 'intestate'), then Guernsey law will step in and dictate how a deceased's persons property will pass. These 'intestacy rules' may not be in line with the deceased's wishes which is why a will is advisable.

Requirements for a valid will

Guernsey law sets out strict requirements if a will is to be valid and effective, including:

the testator must have "testamentary capacity" i.e. the person making the will must be over 18 years old and of sound mind
unless the will is written entirely in the testators own handwriting, any will must be signed by the testator in the presence of two witnesses who are both present at the same time. The witnesses must be over 18 years of age and not be beneficiaries or spouses of beneficiaries under the will

The distinction between real and personal property

In Guernsey, subject to any dependency claim, testators have complete freedom to leave realty (essentially land and buildings situate in Guernsey) and/or personalty (shares, money, possessions etc.) by will to whomsoever they please. In Guernsey, there are usually two wills, one for realty and one for personalty for the reasons explained below.

Before 2008, a person had to have two wills dealing respectively with realty and personalty. Since 2008, a person need have only one will. However, in practice many clients still prefer to have two wills because under Guernsey Law real property transfers on death by 'operation of law' without the need for probate. The Will of realty is therefore effectively a conveyance and a will dealing with realty must be registered at the Greffe on the testator's death to establish good title. There is no such requirement to register a will of personalty and it is therefore easier to keep its contents private. An Executor or Administrator is required to administer personalty.

Any person domiciled in Guernsey and/or owning Guernsey real estate should ensure that they have a Guernsey will expressing how their real estate shall be dealt with after death for a number of reasons including:

to provide certainty for family and others it is intended to benefit
to ensure that the deceased's property is passed on in accordance with their wishes
where any individual executed a will before 2 April 2012, unless they execute a new Will (or codicil) incorporating the provisions of the 2011 Law (or the existing Will stipulates that the new provisions should apply) then the old forced heirship rules will be preserved under the legislation
since 2008, in the absence of a will of real estate, certain Royal Court applications may be required to ascertain the identity of beneficiaries, which can delay the administration of an estate and add additional costs

The Guernsey will will only apply to Guernsey assets. It will not apply to real property owned in other jurisdictions, unless specifically stated. If assets are located in other jurisdictions, consideration should be given to making a separate will dealing with those assets only (taking care not to revoke the Guernsey will by so doing).

With regard to the will of personalty, in addition to dealing with the disposal of a person's personal estate, a will can include provisions such as where the testator wishes to be buried or cremated, who the testator wishes to administer their estate, look after any minor children and wishes relating to trust provisions and specific legacies.

An Executor is not required for a will of realty. However, every will of personalty should appoint an Executor (who must be 18 years and over and of sound mind) and define the Executor's duties and right to charge fees if appropriate. It is worth checking with an intended Executor that they are happy to carry out the role.

Keeping a will under review

Provided a testator retains the necessary testamentary capacity, a will can be amended on any number of occasions or may even be revoked in full. As a rule of thumb, it is good practice to review the appropriateness of a will regularly or where there has been a change in personal circumstances for example, in Guernsey (unlike England and Wales), divorce and/or remarriage will not automatically revoke a will.

Probate

When a person dies leaving personal assets in Guernsey, the Executor named in the will (subject to the requirements of individual asset holders) will need to apply to the Guernsey Probate Registry for a Grant of Probate. The Grant of Probate confirms the authority of the Executor to administer the deceased's estate in accordance with the terms of the deceased's will.

Contentious probate

In this Briefing Note, we highlight some key issues to bear in mind when considering whether to execute a Guernsey will. In later Briefing Notes, we will address the contentious probate issues that may arise (as indicated above) in relation to a deceased person's will and how their estate is handled. Disputes can prove costly and time consuming and are something to be avoided if possible. It is therefore recommended that appropriate legal advice is taken during the will drafting, execution and administration process to ensure the effectiveness of a will and so that there is an understanding of the legal effects and obligations arising.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.