Introduction

Immovable property means for the most part the land and building fixed to it. A definition is set out in Part 1. It is not movable property. Property acquired through share transfer is not immovable property.

Up until 1851, you could not dispose of your immovable property by Will. On death, having immovable property, it would devolve upon the blood relatives of the family. That restriction no longer applies to immovable property left by Will. However, if no Will is made setting out the testamentary intention of the deceased, the law seeks to pass the property to the closest surviving blood relative, namely the surviving spouse and children. Absent surviving spouse and / or children, the immovable property would devolve on remoter relatives.

What developed under customary law and now added to by Jersey statutory law are a number of complex laws and rules identifying who should inherit the immovable property absent a Will.

Leaving a Will of immovable property

With one exception, the deceased now has testamentary freedom to leave the immovable property in his ownership to anyone of his choice. In this way the deceased is not bound to leave his immovable property to his surviving spouse, his children or grandchildren. He can exclude them from the Will. He can leave it to his favourite charity, anyone of his choice.

The exception (“Usufruit”) life interest)

The law intervenes to protect the matrimonial home for the surviving spouse to reside in for life. No such provision is made for the children of the decease. The provision has its origin in the customary law of “Jersey Dower” and “Viduite”. Both must now be read subject to A5 to A6C, Wills and Succession Law 1993.

In summary:

-If the wife dies leaving a Will of immovable property (testate), then the surviving husband may have a right to a life interest in the Matrimonial home (A6B). If the Will provides for the surviving husband to take the whole of the Matrimonial home, the Life interest does not arise. If the husband only takes a share with surviving issue, he retains that right to a life interest.

– If the husband dies leaving a will of immovable property, then the surviving wife may have a right to a life interest in the same as the husband, but through Jersey Dower as amended by the 1993 Law.

This right therefore acts as a legal barrier to the disposition of the immovable property to the person named in the Will.

This is a complex area of law. The extent of what the surviving spouse can do with and under the “usufruit”, what are the obligations, does it extent to the whole or part of the matrimonial home only or to all immovable property, and whether the Court would place a financial value on the “usufruit” and clear it off, are all ongoing issues for consideration. Should a person believe that they have a right to a “usufruit” then they should seek legal advice.

Leaving no Will of immovable property

Absent a Will, the law intervenes to secure for the spouse and issue the immovable property of the deceased. Those provisions set out in the Wills and Succession Law 1993, A6 provide for:

To take an example, if there is a surviving spouse and 3 children, they all take 1/4 each. They take as tenants in common. The spouse also has a claim to a life interest.

If a decease leaves a surviving spouse and / or children, identifying who inherits from the table above is relatively straightforward. What if there no surviving spouse and children? This is dealt with below.

The exception (“Usufruit”)

If there is a surviving spouse and no issue, that surviving spouse inherits the whole of the immovable estate on intestacy. No right to a life interest arises (A6(3)).

If there is a surviving spouse and surviving issue, then the surviving spouse has right to a life interest in the matrimonial home (A5)

Leaving no Will, and no spouse and children

The Wills and Succession law 1993 is silent on distribution when there is no Will and no surviving spouse or children (or on testate, the property falls into intestacy). It then falls to the customary law and statutory law to determine who inherits. If you believe your circumstances falls in to this area, you should seek legal advice. What we now set out is by way of illustration only and does not cover all legal points relating to this area.

The customary law and statute law applies with equal force, absent a spouse and / or children, to identify the beneficiary on Intestacy of movable property.

The application of the law and rules identifies who in the family should inherit. Will it be a father, mother, brother, sister, aunt or uncle or wider family relatives. To identify the relevant family member, it is necessary to trace the history of the immovable property up to the time of death. It is also necessary to distinguish between the different types of immovable property owned by the deceased at death:

First is it a Propres/Acquets

– inherited on intestacy from one’s own family (“Propres”); and
– Inherited in some other way (e.g. by purchase or gift) (“Acquets”)

“Propres” are further divided in to:

– inherited from the father’s side of the family (“Propres paternal”); and
– inherited from the maternal side of the family (“Propres maternal”).

When it is impossible to identify whether the immovable property is a “Propres” or an “Acquets”, it is deemed to be a “Propres”.

When it is impossible to identify whether the “Propres” is paternal or maternal, it is deemed to be paternal.

Direct Line/Collateral

Secondly, we have to ascertain whether the person entitled to immovable property claims under “direct line succession” or “collateral succession. The differences are important.

“Direct line succession”. The immovable property devolves on one or more descendant of the decease, or one or more ascendant of the deceased.

The principal heir is the oldest son (if no son, the eldest daughter).

Here, there is no distinction between paternal and maternal.

Moreover, the distinction between Propres and Acquets is not relevant.

In short, we have a direct line descendant or ascendant identified and ready to inherit. The property is kept in the family because it is passing in a direct line.

“Collateral succession”. The immovable property devolves upon relatives other than descendant or ascendant and not in a direct line.

The principal heir is the oldest male (if no male, the oldest female)

Thirdly computation rules

Propres paternal are inherited by the closest relative on the paternal side. Propres maternal are inherited by the closest relative on the maternal side.

If an “Acquets”, they are inherited by the closest relative whether paternal or maternal (A3).

On a collateral succession the computation of steps between the deceased and the claimant for Propres is the “Canonical method”; for Acquets it is the “civil method”.

There are other rules that may apply.

– Those of the whole blood (sharing the same mother and father) would take the whole inheritance. Those of the half blood (sharing the same mother or the same father) would take 1/2 the inheritance.

– The rule of “a la representation”. This permits the children of a deceased claimant to stand in the shoes of the deceased ancestor and receive that ancestor’s inheritance.

– A descendant takes priority over an ascendant.

Bringing all these matters together, they are applied to the particular circumstance of the claim to identify the claimant and the degrees between the claimant and the deceased. Examples may assist.

Example of direct succession No paternal/maternal distinction. Ascendant takes here as no descendant.
X – Grandfather.
Y – Father.
Z – Son (deceased)
Y would inherit being the closet relative being 1 step separation. X is 2 steps separation.

In the reverse case of X being the deceased, then Y as a descendant would inherit being 1 step removed.

Applying “representation” to this example. X being the deceased. X leaves 2 sons and a daughter. The daughter has predeceased X. She leaves 1 son. That surviving son can stand in the shoes of his mother and receive 1/3 share that would have gone to his Mother.

If you believe you have a claim as a blood relative of the family then you may wish to consider seeking legal advice.

A Valid Will of Immovables

For a Will of immovables to meet the test of essential validity and formal validity, in general it should follow the requirements that apply to a Will of movables and in particular the 1851 Law on Wills of immovables. Refer to Part 3. However as it involves immovable property there are extra requirements:

The attestation clause at the end of the Will. It is

– signed by the testator (or acknowledged as being his signature);
– in the presence of two independent witnesses (“Independent” means must not be a relative of the testator or the beneficiary or a beneficiary under the Will);
– Immediately thereafter and in both their presence and the presence of the testator the Will is signed and dated by the two witnesses.

At the time that the Will is signed (or acknowledged) by the testator, the Will of Immovable property must be read aloud to that person in the presence of the two witnesses. One of the witnesses must be a member of the States of Jersey, one of the Law Officers of the Crown or an Advocate or Jersey Solicitor. The two witnesses should then sign and date the Will in their presence and that of the deceased and confirm that the deceased signed it and was read aloud to him in their presence.

If a Will is not dated it may still be valid in limited circumstances, provided it meets the specific requirements laid down by the 1993 Law, A17A (and A17B now added to deal with Covid 19 segregation).

In the event that separate Wills of movable and immovable are prepared by a deceased, then each Will should comply with its own Law and rules

Holograph Will

This should follow the form as for Holograph Wills of movable property. Again there is a further requirement, as we are concerned with immovable property. An attestation clause as for movables property is required (no need to read aloud or require witnesses with specific qualifications) at the end of the Will and the Will must be dated.

Registration of the Immovable

In Jersey, all immovable property is registered at the Public Registry at the Judicial Greffe. This records the name of the person holding title, over what property and any qualification impacting upon title. In this way at any time there is a record of ownership of immovable property. This same principle applies with equal force concerning property changing ownership under a Will of Immovable or absent a Will.

During the lifetime of the person and prior to death, title in the property is registered in their name. On death they cease to hold title. Where the decease dies intestate not leaving a will, A4, Wills and succession Law 1993 provides: “the immovable estate as to which a person dies intestate shall devolve in equal undivided shares between the heirs at law and such heirs shall take as tenants in common”. The heirs at law may be the surviving spouse, children or more remote family members.
The property is deemed to be held in the name of the heirs at law pending registration by the subsequent beneficiary.

Where the decease dies testate leaving a will of immovables, the will should identify the named beneficiary. That person becomes the registered title holder upon an application being made to the Public registry and registration being granted.

Royal Court Rule 17/3(a) provides for an application being made to the Public Registry “for the registration of a Will of immovables”.

Rule 18/3 provides that “No instrument relating to the title of immovable property is valid unless registered in the Public Registry”. That application should be made enclosing the following documentation:

– the original Will of immovables (if there is no Will, it is necessary to show that title vest in the applicant applying for registration);
– copy death certificate;
– Proof of applicant identification;
– In certain circumstances two valuations of the decease’s immovable property from independent estate agents; and
– the amount of Court stamps payable upon the registered immovable property.

Paying Stamp duty on land/property

When the Will is registered, unless an exemption applies, then Stamp duty has to be paid on the value of any property or land (Immovable estate) on application for registration.

If no will is left and the immovable estate passes on intestacy, then stamp duty will also be payable on registration.

Scale for immovable property (Stamp Duties and Fees (Jersey) Law 1998, Sch 1. para 2)

The Public Registry requires two valuations of the property to be registered when the application is from a member of the public.

There is also an application fee to pay to register a Will of immovable estate.

Immovable property – Joint Ownership

If the immovable estate was bought as joint tenants, then on death of one joint owner, the interest in the property passes to the surviving spouse. This takes place out side of testate and intestacy. There is no need to register this fact at the Public registry. No stamp duty is payable.

On the next occasion when the property is transacted by a sale, transfer, etc, the Contract will record that as seller the surviving spouse has good title by virtue of the death of the other joint owner.

A year and a day

Inherited immovable property should not be sold for a ‘year and a day’ from date of registration of the Will in the Public Registry unless an insurance policy is taken out. The reason for this is that should another Will be found leaving the property to someone else, the person selling the property would not have had good title to sell it; it would not have been theirs to sell.