Introduction
In the first Briefing Note in our Contentious Probate Series, we considered the key issues that a person should have in mind when drawing up a Will in Guernsey. In this second Briefing Note, we consider so called "dependency claims" under The Inheritance (Guernsey) Law, 2011 ("the Law").
The Law, in effect from 2 April 2012, abolishes forced heirship in Guernsey so that henceforth, a person making a Will in Guernsey can leave their Guernsey real estate and if domiciled in Guernsey, their worldwide personal estate to whomsoever they choose.
What is a "dependency claim"?
In circumstances where certain individuals (as specified under the Law), believe that as 'dependants' of the testator reasonable financial provision has not been made for them under the terms of a Guernsey Will executed under the Law (or because no Will has been made at all), such individuals may make a "dependency claim" upon the deceased's death. Such a claim is made to the Guernsey court and is in essence, a request that the Court make an order to change the way in which a deceased testator's estate be distributed.
Who is eligible to make a "dependency claim"?
Those eligible to make a claim to the Guernsey court under the Law are:
- a spouse or civil partner of the deceased;
- a former spouse or civil partner (if not re-married or in a new civil partnership) of the deceased;
- any individual living as if married to or the civil partner of the deceased for at least 2 years before the deceased's death;
- a child, or step-child (who the deceased treated as a child of the family) of the deceased; or
- any other person who, immediately before the deceased's death, was 'financially maintained' by the deceased.
When must a claim be made?
Without the leave of the Court, any "dependency claim" must be made within six months of the deceased's death.
Hearing of the "dependency claim"
Where a claim is made by a spouse or civil partner then it can be for such financial provision as it would be reasonable in all the circumstances for a spouse or civil partner to receive. The question of whether or not the applicant actually needs financial provision for maintenance purposes is irrelevant. In all other cases, an applicant is limited to applying for reasonable financial provision for maintenance. In reaching a decision as to whether or not a person has received reasonable financial provision, the court will have regard to:
- the current and future financial resources and needs of the claimant, any other claimant and any beneficiary of the estate;
- any obligations and responsibilities that the deceased had towards any person making a claim or any beneficiary of the estate
- the size and nature of the estate
- any disability of any person making a claim or any beneficiary of the estate; and
- any other matter which the court considers relevant.
Conclusion
The Law is still a relatively new addition to Guernsey law. However, as expected, the Guernsey court is seeing an increasing number of local dependency claims made under it. The Law is based upon the system which has been in place in England since 1975. Accordingly, in anticipating and advising upon the likely outcome of any local dependency claims, Guernsey practitioners have the benefit of being able to refer to relevant English authority which, it is well-established, the Guernsey court may regard as being highly persuasive.
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.
