The Adviser: Where there’s a will, there should be a way

Wednesday 19 September 2018

What happens after we die is largely out of our control, but as one local lawyer argues, having a will ensures that what you own benefits the people you choose... most of the time.

Advocate Olaf Blakeley shared his thoughts in his latest column for Connect Magazine...

"I’ve written many times about the law in Jersey and how it operates to control bequeathing property on death.

"If you haven’t read those articles then, in brief, a person who has movable property has limited freedom when leaving that property under a will, if that person has a surviving spouse or children. A person without either has total freedom of disposal. Whether such control is right or not is another matter, and is something perhaps for a future article. 

"What I wanted to write about this month is why having a will is important; and also a possible change to the law.  

"Firstly, by having a will in place you do relieve quite a lot of pressure from loved ones at a time when stress and upset will be heightened. Everything is ‘sorted’ and ‘tidy’ and that’s a kind thing to do. Secondly – and importantly – you will feel satisfied that as far as you can be certain, the people you wish to benefit on your death will be benefited.   

Pictured: Having a will makes sure everything is ‘sorted’ and ‘tidy’ and "that’s a kind thing to do," says Advocate Blakeley.

"My advice is that if you are leaving everything to one person (perhaps a spouse) it is a very good idea to appoint that person as executor or executrix of the will. It simplifies everything so much. In my opinion you do not need a professional executor in such circumstances and so I would not do so. If you need a little help in administering the estate you can seek help, and the Probate Department of the Judicial Greffe are excellent at helping lay people, and very experienced in doing so.  

"But what do you wish to happen if, on your death, you have no surviving close relatives or friends who you would like to benefit? If you leave property, and under the will the gift you make ‘fails’ as a result of a person named in the will pre-deceasing you, that part of your estate may become an intestate succession, with the result that a relative (possibly far removed) may benefit.

"Ask yourself, “is that what I would like to happen?” If not, you may prefer to have a ‘catch-all’ provision inserted into your will so that any such occurrence is dealt with by leaving that part of your estate to a charity of your choice. If you haven’t got a will and you are going to have one prepared, do consider this point, and raise it with your lawyer who will be able to help.

Pictured: Advocate Olaf Blakeley recommends including a clause to direct where the property should go in case the people named in the will die before you do.

"Although it is rare, it sometimes happens that a gift under a will fails, and unfortunately no other relatives exist, or can be found. In such circumstances the property will pass ‘bona vacantia’ - which, in simple language, means the Crown nabs it. I really don’t like this part of the law. In my view Jersey should address this issue by passing a law which has the effect that any property should instead go to an institution, or charities, to be split amongst them. I know that deciding which charities should be entitled to participate would be difficult; but difficulty shouldn’t be an obstacle to doing something for the better. 

"However, I am not so naïve to believe anything like this will come about soon. So, perhaps if you are in agreement, you could always ask your lawyer to advise on inserting a clause into your will that would have this effect. I haven’t thought about the drafting of such a clause, but it could be as simple as "in the event that any of my property is to pass bona vacantia then, in such an event, I direct that all such property shall instead be bequeathed to [charity name].”  

"I realise that my opinions will not be shared by all. However, we know that on death we can’t take property with us (unless it is buried alongside us) and if those we wish to benefit will not benefit, then should it not instead be put to better cause? It’s just food for thought."

Read more from Advocate Olaf Blakeley in each month's edition of Connect here.