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If you're buying property - don’t leave it to chance!

The one certainty in life is death. None of us will live forever and yet despite the obvious, not all of us make preparations for the inevitable. People will often say “I am too young to think about a will” or more usually “the law says my children will inherit my assets so I need not make a will”. It may be a silly thing to say but as with most things in life, death is not so straight forward.

If a person dies without a valid will then they are said to be “intestate”. Their property will then be transferred to members of their family according to rules of law. A summary of those rules are:

If you die with children but without a surviving spouse, then the children will receive the property jointly between themselves.

If you die with a surviving spouse and children, then the surviving spouse will have a right to:

• a life interest of the matrimonial home;
• the contents in it;
• the first £30,000 of the estate; and
• a share of your assets jointly with the children.

If you die with a surviving spouse and no children then they will be entitled absolutely to your estate.

You may say that is exactly what you want so why would I bother to prepare a will. There are a few pitfalls if you do not. When we say “children” that now means all children and not simply those of the marriage. That in itself may not seem like a problem as you may be clear as to what has happened in your life.  When you are no longer here however, you cannot tell anybody and there may be a doubt.

Case study one – how many children are there?

I acted for clients recently who wanted to buy a home from a lady who had inherited it from a parent. There was no will. The lady had inherited the property by rules of intestacy being (as far as she knew) the sole surviving child. This is when the complications arose.

The lender providing the mortgage for the purchaser wanted to know for sure that the person who was selling the property had the right to do so. Could the lady have a half sister or brother tucked away somewhere? If there was another child, then they would also have a right to a share of the property and would also have to agree to the sale. Although the risk may be remote or far fetched that there was another child, lenders may not take the chance. They may insist on an insurance policy to cover the risk of another child coming out of the woodwork to claim a share of the estate.

Such insurance can be difficult to find. In the age of the internet and sites such as Facebook, it is much easier to trace people. A search of the planet can be made in seconds. To make a search all is needed is a name. Insurers are less willing to be involved and if they are, it comes at a heavy price.

A bit more detail…

There was a division between the treatment of the estates of men and women. Following a change in the law years ago, any child of a woman had a right to a share in her estate but before January last year only legitimate children had a right to a share in their father’s estate. That has now changed. Children did not choose to be born and the law has developed to allow them to participate in either their father’s or mother’s estate regardless of whether they were married.

Wills which were made before 29th January, 2011 which refer to “my children” will be assumed to be only be for legitimate children. For new wills made after that date,  “my children” could include any child and therefore, for the avoidance of doubt, each child ought to be specifically named.

Case study two – when a will has been lost

The complications could have been solved in the above case study if the parent had made a will before they died leaving the property to them. However, that is not the end of the matter.

A will dealing with Jersey land must be prepared according to certain rules which include the following:

• It must be read aloud to you in the presence of an official witness (usually a Jersey lawyer) and in the presence of another independent witness; and
• Once the testator (the person who is making the will) has signed it both witnesses must sign the will too.
• If the rules for completion of a Jersey will are not followed, the will may be open to challenge. If successfully challenged, you may die intestate with all its complications.

Even if the above rules have been followed, the will must be kept safe. I know it may seem obvious but if the original will is not around when you die then there may be problems.

If there is a photocopy of the original then it would be up to somebody to prove to the Court that the copy is the copy of the original. It is a troublesome and expensive task. In a recent case, I had to make an application to the Court to accept a photocopy of a lost will to prove that the person I was acting for had the right to sell the home she had inherited. Overtaken with grief after the death of her husband, the client had lost it when she was making photocopies. The Court application to solve the problem only rubbed salt into an emotionally sore wound.

If you go to the trouble of making a will, make sure it is kept in a safe place where it can be accessed when you are gone.