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02 April 2020
On what grounds can a will be challenged?
What if a will is valid but does not provide for individuals?
Why are probate disputes increasing?
What can individuals do to prevent a dispute of their will?
Recent research highlights the increasing likelihood of people being willing to dispute a will and go to court if they are unhappy with the division of their relative's estate, and this is definitely an increasing area of work in Jersey.
There are a number of different grounds on which a person is able to challenge a will. The first step to take is to ensure that the person making the challenge has the legal right to do so and that the challenge is made within any legal time limits.
Reasons to challenge a will in Jersey may include:
Apart from the right of a spouse or civil partner to a life enjoyment of one-third of the matrimonial home, a person is free to dispose of their Jersey immovable estate (being freehold property and land) in any manner that they wish. A person has no automatic right to inherit the Jersey immovable estate of a relative so cannot challenge a will of immovable estate on this basis.
A will of immovable estate could be set aside if it could be shown that:
A will of immovable estate must be read aloud to the testator by a qualified witness (eg, a Jersey advocate) before it is signed and will not be valid unless this requirement is complied with.
Even if a Jersey domiciled person's will of movable estate is executed correctly and is formally valid, the surviving spouse, civil partner or child of a deceased person has the right to challenge the division of the movable estate by will under Jersey's current forced heirship provision, known as légitime. This right applies only to an estate where the deceased was domiciled in Jersey but, if this is the case, the law states that individuals have testamentary freedom over only one-third of their movable estate. From the other two thirds of their estate, they must provide for their surviving spouse, civil partner or children. If they do not, their spouse, civil partner or children are entitled to make a claim against their will of movable estate. This claim must be done in the Royal Court of Jersey and within a year and a day from the date on which a Jersey grant of probate to the will was issued.
Despite this, the majority of people choose to write their will of movable estate in the manner of their choosing. It is therefore common for spouses or civil partners to leave all of their movable estate to each other in the first instance and only to their children on the death of the second party. This is contrary to the légitime provisions but, in this situation, it is usually considered that the children will not make a challenge for their légitime and will allow their parent's movable estate to pass via the will.
If a challenge for légitime is made in the Royal Court, there is no defence to the claim that can be stated. The claim for légitime is a statutory right and the court will order that the will of movable estate be reduced, so that it has effect only over the freely disposable one-third and the remaining two-thirds are distributed in line with the légitime provisions in the law.
There are a number of factors which explain why cases of challenge to wills and estates are on the increase.
People now live for longer, which can mean that wills are regularly updated and altered later in life. A person changing their will when they are older or unwell can lead to concerns that they did not have the required mental capacity or were more easily influenced into making decisions about their beneficiaries.
Families are increasingly more diverse and complex with many people now marrying more than one time and having children from more than one relationship. Blended families are common. If a person leaves their movable assets to children from a second marriage in preference to those from a first marriage, the children from the first marriage are likely to be entitled to make a challenge on the basis of their légitime entitlement.
Property prices in Jersey have increased exponentially over the past 10 years meaning that estates are more valuable. Share transfer properties, which are classed as a movable asset, can form a large part of a person's estate. Thus, family members may be more willing to challenge a will as their potential entitlement is worth the challenge.
Do-it-yourself wills are common but play a large roll in disputes. While they can be a cheap option, there can be drafting errors and issues which can cause confusion and lead to costly applications to clarify the meaning.
Individuals should seek professional advice to ensure that their will is valid and correctly reflects their wishes. It is also important that individuals understand the risks of a challenge by unhappy family members, beneficiaries or people that may be left out of the will but who may be expecting to benefit, and what they can do to mitigate this.
Individuals should discuss their intention and wishes with their family in advance of writing their will so that there are no unpleasant surprises on their death. If individuals do not wish to do this, a letter outlining why they have drawn up their will in the terms that they have, to be held with their will, can explain this to their families.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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