This article was first published in Connect magazine, issue 120, page 49.
“I must get my affairs in order!” A familiar phrase, particularly as we get older, but one whose aim is often not put into effect. It is all too easy to procrastinate about our testamentary affairs. Life gets in the way, something else always takes priority and we do not like to confront our own mortality, which drafting a will obviously does. We put things off. That can mean, unfortunately, that what we want to happen to our property – whether that be our house or our money – when we die doesn’t happen. People who we do not wish to inherit may do so and, more importantly, those we wish to benefit may not.
A recent decision in the Royal Court – In the Matter of Estate Le Brocq – underlines this all too well. The deceased had in fact made wills about a year before he died, but nearer to his death had instructed his lawyer that he wished to benefit others, particularly his housekeeper. Whilst further draft wills were prepared they were not executed before the deceased sadly died and so his intentions were never put into effect. The issue which the Court was asked to decide was whether the instructions which the deceased had given to his lawyer to prepare new wills were enough to revoke his existing wills so that he would have died intestate. Quite properly the Court determined on the evidence that if nothing else it was clear that the deceased had not wanted to die without a will and so his earlier existing wills remained in force.
The decision is not startling and on the facts was sound, but what it emphasises is a lesson to all of us to get on with it!
Dying without a will, or intestate, means that our nearest relatives will benefit and the law lays down rules about how property is to be inherited in such circumstances. For some that may be what they want. For many, however, who wish to benefit others outside of their family or their family not in the way intestacy rules suggest need to prepare a will. If we want our exact intentions to be put in effect we need to set them out in a valid will. That may be important in any number of situations. Families are of all shapes and sizes. Often people do not marry and Jersey law does not recognise “common law marriages”. If we want then to benefit an unmarried partner who the rules on intestacy will exclude from inheritance, that must be done by will.
Respecting our testamentary intentions is the principal reason for having a will but there are others. A will of movable estate also allows us to express our intention as to who should oversee and manage the distribution of our assets after death and provide peace of mind that what we want is honoured. In that way and others a will can minimize the potential for disputes. It also allows for the expression of funeral and burial arrangement wishes and importantly with assets and families now living throughout the world the possibility to arrange matters to minimise the impact of inheritance taxes for future generations.
A will is an opportunity to express our intentions and to ensure that what we want after we have gone is done and to help those left behind to manage things; we should all have one!