International legacy wills, probate and succession planning in Jersey

Jersey has developed a substantial international finance industry over the past 40 years, and with the passing of time, issues of cross-border probate have inevitably come to the fore. Many practitioners on the island - as well as the Probate Registry - find that work in non-Jersey domiciliary deceased estates heavily outweighs the Jersey-domicile estate work.

This briefing briefly examines international issues surrounding wills, probate and succession in Jersey, and also looks at some of the differences between succession in Jersey and in England and Wales.

Legacy wills and estate planning in Jersey

Similar to the position in England and Wales, Jersey law differentiates between immovable property and movable property. Devolution of immovable property is governed by the lex situs. This means that no choice of law is available, and a will covering Jersey situs immovable estate must conform with the legal formalities of the island. Movable property is governed by the lex domicilii, with the concept of domicile also being broadly similar to that in England and Wales. In relation to movables, a will shall be valid if execution conforms to the internal law where it was executed, where the testator was domiciled, or was habitually resident, or of which the testator was a national.

Jersey probate law goes even further, whereby even if a will is not valid in accordance with any of the requirements mentioned, it will still be valid in respect of Jersey situs movables if it is executed in accordance with Jersey law, regardless of the personal law of the deceased. This 'sweep up' provision gives enormous flexibility to testators with assets on the island, and simplifies the probate process by reducing the need for affidavit evidence about the law on formal validity in the deceased's personal law jurisdiction. This lowers costs, and shows Jersey's capability in international legal affairs. Despite the choice of law in respect of movables, a will may still be challenged in the Jersey courts on the basis of its essential validity - for example, if it does not conform to forced heirship provisions in the country of domicile. A testator with Jersey movable estate has a choice as to whether to include their Jersey assets in a multi-jurisdictional will, or to use a separate Jersey will. This should be considered on a case-by-case basis.

There is a strong case for minimising the number of wills, due to the risk of inadvertent revocation. The availability of the Jersey 'fast track' probate procedure (see further below) adds weight to the case against using many wills. But there are circumstances where it may be helpful to have a number of wills. It may expedite the probate process, depending on the various locations involved, as a Jersey will can proceed to probate without having to wait for probate in another jurisdiction.

It may also make administration more efficient, as the will is restricted to a smaller, more ascertainable group of assets. Forced heirship under a testator's personal law may be circumvented (although the estate may be open to challenge by the legal heirs). The testator may also be afforded greater privacy, as the contents of their Jersey will only become a public documents on the island, and not elsewhere, as a multijurisdictional
will would.

Jersey probate for non-domiciliaries

If a person dies domiciled outside Jersey, and owning movable assets in Jersey with a probate value exceeding £10,000, then a Jersey grant must be obtained. Where the value of the assets is less than £10,000, it is left to the asset holder's discretion as to whether they insist on a Jersey grant being obtained. To obtain a Jersey grant, the Royal Court of Jersey requires the following:

•  a court-sealed and certified copy of the original grant and will, issued by the probate court in the deceased's country of domicile;
• an original or certified copy of the death certificate;
• if any of the above documents are in a foreign language, an official translation of each document into English;
• confirmation of the net value of the movable assets in Jersey as at the date of death; and
• the probate court fee and stamp duty, both of which are calculated on the net value of the estate in Jersey.

The executor / administrator must attend the Royal Court in person to take the oath; many executors / administrators of non-domiciliary estates will give a power of attorney to an agent on the island for this reason. In addition, an affidavit of foreign law, provided by a lawyer practising in the deceased's country of domicile may, in some cases, be required. This will be the case where, for instance, a grant will not be issued in the deceased's country of domicile; or the will or foreign grant does not appoint an executor; or the deceased died intestate. Where a person dies domiciled in England and Wales, Scotland, Northern Ireland, Guernsey or the Isle of Man and a grant has been issued in the deceased's country of domicile, there is a 'fast track' system available.

In such cases, the documents required are more straightforward.

The Jersey differences

Although the matters noted above are similar to the law and process in England and Wales in respect of non-domiciliaries, there are significant differences for clients domiciled on the island. Jersey has owed allegiance to the British Crown for approximately 800 years, yet it has a body of customary law which evolved principally from the customary law of Normandy. This civil law influence is still felt today, for example with forced heirship. Some of the significant differences in wills, probate and succession in Jersey include the following.

A holograph will covering movable estate need not be witnessed. On execution, a will covering Jersey situs immovable estate must be read out loud to the testator in the presence of two witnesses, one of whom must be a Jersey lawyer.

A will of Jersey immovable estate is not probated. Instead, it is registered at the Public Registry, whereby title passes to the beneficiaries. In contrast, a will of personal estate is probated, and the estate administered in a similar way as any will in England and Wales.

There is a system of forced heirship, called legitime, in favour of spouses and children. In practice, however, most married couples leave their entire estates to the survivor, and legitime challenges by children may only occur if there is a family feud or a second marriage. Claims against an estate may be made within one year and a day of issue of the grant of probate. Jersey lags behind England and Wales in respect of equality, as there remains a significant disparity between the treatment of widows and widowers in respect of immovable property. A widow is entitled to a life interest in one-third of her late husband's immovable estate, whereas a widower is entitled to a life interest in the whole, provided that a child was born of the marriage. However, although the position is not yet equal between the sexes, Jersey has caught up with England and Wales in respect of same-sex unions, with civil partnerships gaining the same legal recognition as those in England and Wales last year. Another step forward in terms of equality occurred last year, related to the status of children.

Until then, in respect of a male deceased, the term 'descendants' referred only to descendants born within a marriage. The definition has now been expanded to include all descendants, whether born in or out of wedlock. On intestacy, the statutory legacy for a surviving spouse in Jersey is just £30,000, which is in addition to the household effects, a halfshare of the remainder of movable estate, and a life interest in the matrimonial home. A marriage in Jersey will not automatically revoke a will. Variations of estates are available in Jersey within up to two years of the death, but they must be made by application to the court. Jersey is often cited as a unique and inviting place, and this is reflected in its wills, probate and succession business. The island has established and builds upon its individual laws governing succession of Jersey assets, and it has strong capability in international estate planning and administration, adding to its appeal for those seeking a safe place to hold their wealth.