Where there’s a Will, there’s a way

Have you got a Will? No? It is surprising how many people do not. In all likelihood, your

assets (or ‘Estate’) are sufficiently valuable to warrant the costs of getting a Will and as

seen below there are very strong and cogent reasons for having one. There are matters

which a Will can address which will make looking after your Estate and family after you

die much more straightforward and less stressful for your loved ones. It could also save a

lot of wasted costs.

First, it is important to know that since the Inheritance (Guernsey) Law 2011 (as

amended) if somebody can claim to be ‘maintained’ by you in life, and further that

insufficient ‘financial provision’ has been made from your Estate for them, then they

can make an application to the Court. The Court has very wide powers to order financial

provision for them from the Estate. These sorts of claims (called ‘Dependency Claims’)

can become very complex and expensive and may well end up being made at the

expense of the Estate and so at the cost of your intended beneficiaries. Those costs will

inevitably dwarf what would have been the cost of getting proper legal advice about

who might be entitled to your Estate and of having a Will drafted to mitigate against the

likelihood of a Dependency Claim ever arising.

Wills are therefore a real investment for the future and for those you truly intend to

benefit.

In Guernsey there are two types of Will. A Will of Realty (buildings and land) and a Will

of personalty (all other assets). If you own a real property in your sole name, you can

leave a Will of Realty naming your intended beneficiary. When you die, it's a simple

matter for the beneficiary to register that Will of Realty at the Greffe. That will act as the

conveyance of the property to the beneficiary. There is no probate and no tax.

If you co-own property, then it can either be on a ‘joint’ or on a ‘common ownership’

basis. If held on a ‘joint’ basis it means that on the death of the first of the joint owners,

their interest will pass automatically to their other joint owners, and importantly,

outside the Estate. If, however, you are an ‘owner in common’ then you can leave your

interest in the property by Will. These are important distinctions to understand and plan

for.

Also, the fact you can have separate Wills of Realty and personalty means that the

distribution of your personal estate can be made confidentially because the registered

Will of Realty is a public document.

The advantage of having a Will of personalty (and not just relying on the legal rules of

intestacy if no Will is left) means that you can stipulate various things.

You can state if you want to be buried or cremated and where. You can stipulate who

you want your Executor to be, which makes administering the Estate much more

straightforward.

If there are minor children, then the Will can appoint a guardian for the minor children.

In some cases, the Will can create a ‘Will trust’, very useful say in the case of children

with special or lifelong care needs. A trustee could also manage the Estate assets until

minor children reach the age of say 21 or 25. Distributions could be made before then

for accommodation and educational expenses. The Will also appoints the Trustee. If

the Estate is not particularly large then the trustee can just be a family member as the

cost of involving a professional trust company would not be warranted.

You can also make various legacies and gifts, for instance, to a chosen charity or to

specific people such as old friends or your old school, etc. These gifts can be of money

or specific items such as artwork or jewellery.

Your legal advisor will also be able to advise you about the existence of any potential

Dependency Claim and whether there’s anybody upon whom you should make some

form of gift in order to avoid such a claim being made. If you leave sufficient to

somebody in a Will, then this is a very active disincentive to them to challenge the terms

of the Will because of the possible cost consequences for them if they do so and fail.

Some people think that they can just draft a Will themselves, but they are technical and

formal documents and need to be very carefully drafted. If it is not clear what the Will

means, this can lead to very expensive litigation where the matter has to go to Court for

the Court to ‘construe’ what the wording actually means. This doesn’t look at the Will

drafter’s specific intentions but what the words mean objectively. The Will can

therefore be construed to leave your property in a way you didn’t intend. Far better to

spend some money now to make sure the Will is drafted properly. Experience shows

that the vagaries of a homemade Will can create great stress and uncertainty for the

family.

There are therefore very significant advantages to having your Will drafted

professionally.

Finally, in Guernsey, we now have what is colloquially known as a “living Will”. Under

section 35 of the Capacity (Bailiwick of Guernsey) Law 2020 you can opt to make an

‘Advance Decision to Refuse Treatment’ (“AD”) that remains binding on your health

carers even if you later lose mental capacity. This is NOT assisted dying; it is a choice

about what treatment you do and do not want to accept in future if you lose capacity.

So, for instance, you could stipulate that if you have severe dementia and get pneumonia, you would not want to have antibiotics, but to let nature take its course.

The advantage of leaving an AD means that you won’t leave those sorts of difficult care

decisions to your family, where there could be disagreement to say between a long term partner who is not a spouse and children of an earlier relationship. Again, there is a degree of expense in discussing the matter with your GP and your legal advisor, but this is far outweighed by the certainty for your family and any expenses of any court application required if there is a family dispute about what your care should be.

So where there’s a Will, there’s almost certainly a way to ensure that your intentions for your Estate and your loved ones are properly recorded and acted upon in future.