Anne Hembry and Janina Porter of Voisin’s Probate and Estates team look at the implications of the recent amendment to Jersey’s Wills and Succession Law for illegitimate offspring.

The law currently makes a distinction between a man’s legitimate and illegitimate children. The enactment of the Wills and Succession (Amendment) (Jersey) Law 2010 (the ‘New Law’) will, for the first time, abolish this distinction by granting succession rights to a man’s illegitimate children.

The law does not currently afford any rights to a man’s illegitimate children. Throughout the Wills and Succession (Jersey) Law 1993 (the ‘Principal Law’), currently the key piece of legislation governing succession in Jersey, reference is made to the ‘spouse’ and ‘issue’ of the deceased but under the terms of the Principal Law, rights are only granted to a man’s legitimate children. Illegitimate children are excluded from benefiting.

One of the main objectives of the New Law is to bring the rights of a man’s illegitimate children in line with the rights granted to his legitimate children by the Principal Law. The New Law adds a number of provisions to the Principal Law in order to achieve this. The most significant development is Article 8C, under which a man’s illegitimate children are explicitly stated to have the same rights of succession as his legitimate children. Furthermore, all references in the Principal Law to issue and heirs etc will be construed in accordance with Article 8C by virtue of the New Law. The result is that the children of a man who dies following the enactment of the New Law will have the same rights of succession irrespective of the deceased’s marital status.

Under the Principal Law, legitimate children have a right to a one-third share (or two-thirds share depending on the circumstances) of the deceased’s personal estate regardless of any testamentary provisions. The extension of this right to include a man’s illegitimate children is likely to lead to a more cautious approach from Executors of Wills, because even greater care will be required to establish exactly which parties are entitled to a share of the deceased’s estate, particularly where the deceased has been married or cohabited with several partners during his lifetime. As a result, Executors may be more inclined to wait for the full year and a day to expire, the time during which claims against the estate may be brought, before making any disposals.

The New Law also establishes the legal position of surrogate mothers and sperm donors, making it clear that they do not constitute parents for the purposes of Jersey’s laws of succession. Further, the position of heirs to immovable property sold by some, but not all of the heirs, to a purchaser in good faith is clarified. Any heirs not party to the contract of sale may claim their proportionate share of the sale proceeds within ten years. The title to the property is protected and as such any claim will not invalidate the transaction.

Nevertheless, the fundamental change brought about by the New Law is the granting of succession rights to a man’s illegitimate children. It will be interesting to see how this change will affect those involved in the administration of estates in the future.

For further information on this matter, or for advice on Wills or probate in Jersey, please contact either Anne Hembry (annehembry@voisinlaw.com) or Janina Porter (janinaporter@voisinlaw.com) of Voisin.