When intestacy may be preferable

Extent: Jersey
Updated 10 July 2019

Words you may need to know

Deceased -  dead

Spouse - husband or wife

Intestate - dying without leaving a will

Legitime - the legal right under the law for children to inherit one third of the moveable estate

Moveable  estate - all assets other than land, property or some leases

Under the Wills and Succession (Jersey) Law 1993, as amended by the Wills and Succession (Amendment) (Jersey) Law 2010, there is the possibility that a spouse may benefit from the fact that their deceased husband or wife has not made a Will of movable estate when the value of the total estate is less than £30,000.

If the deceased spouse leaves a wife or husband and children, leaving everything in the Will to the surviving spouse, then the children could legitimately challenge the Will and claim their one-third of the estate, leaving the spouse with only two-thirds.

If the deceased spouse had died intestate, as long as the movable estate is no more than £30,000, then the whole of the estate goes to the surviving spouse under the intestacy rules, and there is no right of appeal from the children.

On an intestate estate valued at £60,000, the widow would take £45,000 and the children would take £15,000. However, if there was a Will leaving everything to the wife and his Will is reduced by a legitime claim £40,000 will go to the widow and £20,000 to the children.

In fact, the surviving husband or wife would be better off under intestacy for estates up to a value of £90,000 assuming that one of the children wishes to claim legitime. This is referred to as the "£90,000 trap".

See also Wills 8.45.4 Para 4