Knowledge

Sometimes when people pass away, those who relied on them financially may not be adequately provided for in their will, if they had one. In such cases the law may be called upon to set right what might otherwise be an unfair situation and a cause of hardship. An application for reasonable financial provision from a deceased's personal estate can be made under the Inheritance (Guernsey) Law, 2011 (the "Law") in situations where a deceased, whether by virtue of testamentary disposition or intestacy, did not bequeath reasonable financial provision for certain classes of people. These people are:

• spouses and civil partners;
• former spouses and civil partners;
• a person who, during the whole of the period of two years immediately before the death of the deceased was living in the same household and as their spouse or civil partner;
• a child of the deceased;
• any person who is not the child of the deceased who, in the case of any marriage or civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage or civil partnership; and
• any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.

A person is treated as having been maintained by the deceased if they made a "substantial contribution in money or money's worth towards the reasonable needs of that person" and reasonable financial provision is set out as:

• in the case of spouses or civil partners, such financial provision as it would be reasonable in all the circumstances of the case for a spouse or civil partner to receive, whether or not that provision is required for them/their maintenance; and
• in the case of any other person, including former spouses and civil partners, such financial provision as it would be reasonable in all the circumstances for the applicant to receive for them/their maintenance.

The Royal Court of Guernsey (the "Court") has the power to make orders for and in relation to:

• periodical payments;
• lump sum payments;
• vesting orders in relation to property;
• variations to pre- and post-nuptial settlements to which the deceased was a party; and
• orders creating, extinguishing or varying any:
  • usufruit (the right to enjoy a capital asset, usually a house, for a period of time);
  • droit d'habitation (the right of residence in a property); or
  • lease, licence or other right of occupation in relation to property comprised in the deceased's estate.

The Court also has the power to make these orders on an interim basis in cases where applicants are in need of immediate financial assistance, but it is not possible to determine what order (if any) should be made.  

The Court will also have regard to a number of factors including, but not limited to, the following:

• the financial resources and financial needs which the applicant (or any other applicant) has or is likely to have in the foreseeable future;
• any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;
• the size and nature of the net estate of the deceased;
• any physical or mental disability of any applicant or any beneficiary of the estate of the deceased;
• the financial circumstances of the marriage/civil partnership; and
• any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the Court may consider relevant.

Applicants should find comfort in the Law being able to potentially provide a remedy for those who were financially dependent on another. During what are uncertain and upsetting times, it is important to seek legal advice as soon as possible. There is a six-month time limit from the date of death within which to make applications against estates for financial provision, so applicants need to act swiftly. The factors set out above are not exhaustive and careful note needs to be taken of the full terms of the Law.

Please get in touch with a member of our team who can advise on the applicable provisions and assist applicants in making a claim in time.