Inheritance Law Review Statement
Monday 20 June 2011
The Inheritance Law Review Committee has issued the following statement in relation to the draft Inheritance (Guernsey) Law, 2011 which is due to be considered by the States of Guernsey on 29th June and with particular reference to a letter signed by a number of local advocates published in the Guernsey Press on 11th June, following the publication of which a number of queries have been received from the public.
"The draft Law was prepared following several years of careful consideration by the Committee, with advice from the Law Officers and consultation with a considerable number of advocates in private practice with experience and expertise in the field of inheritance, property and family law. The two Resolutions of the States which authorised the preparation of the legislation (29th April 2009 and 27th January 2010) were made after proper debate and consideration of two comprehensive Reports to the States which set out in detail the existing law, the arguments for and against reform and the Committee's recommendations for change. Those recommendations were themselves made following extensive public consultation and with due regard to the responses received, the majority of which were in favour of adopting full testamentary freedom.
It is therefore incorrect to suggest that the reforms are being thrust upon an unsuspecting public without mandate or consultation. It is also incorrect to allege that the proposed law does not achieve what was intended. Both Reports clearly state throughout that the purpose of the reforms is to replace a system of forced heirship, which dictates to Guernsey people to whom (and in what proportions) they may leave their property when they die, with a system of full freedom of testamentary disposition coupled with the possibility, where a needy family member or other dependant of the deceased person has been left without reasonable provision for his maintenance, of an application to the Court for such provision to be made.
It should be noted that this is not carte blanche for comfortably-off children or relatives to dispute a will in order to obtain a windfall inheritance - it is merely intended to allow persons within the specified classes of possible applicants who are in need to ask the Court to consider whether, having weighed up all the circumstances including the size of the estate and the needs of other beneficiaries, they should be granted provision, or further provision, from the deceased's estate. In most cases this will not be necessary, as most people will naturally wish to benefit those closest to them.
The case cited by the signatories of the letter is a good example. In that case the daughter had left home at the age of 17. However it was, the judge found, the mother's unreasonable exclusion of her daughter despite the daughter's attempts at reconciliation which led to her excluding her daughter from her will while benefiting animal charities in which she had formerly shown no interest. The estate was worth £486,000 and the daughter who had five children was living on benefits. In those circumstances the judge awarded the daughter £50,000. If that situation occurred in Guernsey today, the daughter would have automatically received one half of the money; if the value of the estate had been in a house, the mother would have been compelled to leave it to her daughter and/or one or more of the five grandchildren, with nothing going to the charity. It is that inflexibility which the proposals aim to replace with flexibility - for the testator, in enabling him to make provision as he sees fit rather than as the law dictates, and also for the protection of those deserving individuals who have been wrongly excluded, in enabling them to ask the court to reconsider their position in the interests of justice. There is at present no possibility of challenge where the system of forced heirship produces an unjust result, as it often does due to the more complicated family relationships which result from divorce, remarriage, cohabitation, children born outside of marriage etc. The fact that wills are rarely challenged under the existing system is not due, as the signatories allege, to the success of that system: it is due simply to the fact that there are no grounds for challenge, however unfair the disposition of an estate. In order to give the court the flexibility to achieve fairness under the proposed system, it is given wide powers, but those powers must be exercised within the strict parameters set out in the legislation. Importantly, many of the powers (such as the power in limited circumstances to take into account the deceased's proportionate share of jointly-owned property) are included to prevent testators taking steps before their death to avoid their responsibilities, such as transferring their assets to a third party. Such powers are nothing new and the same types of powers exist in other civil proceedings. Further, it is fundamental in our system of law that the Court can be relied upon to reach a just decision on the merits of each case.
Although it is misleading of the signatories to suggest that no legal aid will be available in such cases (legal aid does not specifically cover such litigation at present because the proposed family provision legislation does not yet exist), it is certainly true that an applicant with little prospect of success would be penalised as to costs and this, coupled with sensible legal advice based on the UK precedents which have evolved over more than 70 years, should deter all but the most foolhardy from making spurious claims.
The Committee would also dispute the contention that the new Law will replace simplicity with complexity - on the contrary, as any aspiring advocate will agree, the present Guernsey law relating to inheritance is anything but simple, and the ability to leave your property, whether real or personal, without having to take into account the complexities of "légitime", or the categories of persons to whom you are permitted to leave your real property, will make life much easier for the average testator. It is the Committee's view, and it believes the view of the majority of the Guernsey public, that this "revolution", first mooted and favoured by a majority of the Committee examining it in 1950, which is the result of more recent careful consideration and proper consultation, is desirable and appropriate for the way people live today. Although there is naturally a reluctance to break further bonds with our Norman customary law heritage, the Committee's (and the States') primary concern and duty has to be the interests of the Guernsey public in the 21st century."
Note: quotations to be attributed to a spokesman for the Inheritance Law Review Committee