Appleby Finance Newsletter, Q1 2014: where legacies cause problems

By Marc Guillaume

Where a testator or testatrix makes a specific bequest in his or her will, it is almost without exception done with the intention of benefiting the recipient of that bequest. Such, after all, is the main point of a will — to pass ownership to specific assets to individuals or to other bodies such as charities as a final act of benevolence on the part of the deceased.

For a number of reasons, however, either the assets bequeathed or the manner in which they are bequeathed can lead to unnecessary costs and complications for the beneficiaries. Where a beneficiary actively does not want a particular legacy, then the matter is easily dealt with — he or she can simply disclaim his or her interest under the will. Where, however, the beneficiary does want to receive the benefit of the legacy but wishes that it had been left to him or her in a different manner, the situation is more complex. The will is, after all, the will. Happily, however, the Probate (Jersey) Law 1998 as amended can assist.

The recent case of Representation of Bisson and Taylor [2013] JRC148 concerned the will of a testator (T) who had lived and been domiciled in Jersey for more than 40 years up until the time of his death. During his life, he had successfully conducted his business affairs through the medium of a number of Jersey and Guernsey companies and, when he came to make his will, he wished to pass on his assets to his two children through the medium of two Jersey trusts (one of which was established for the benefit of one child and that child’s family; the other for the other child and his family)…

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