Tuesday, 23 March 2010

Legacy and Loophole

I see today's States is debating inheritance of illegitimate children.

The Wills and Successions (Amendment) (Jersey) Law 201- (the "Amendment Law") seeks to open succession rights to illegitimate children. Such children will, under the Amendment Law, be placed on the same footing as legitimate children for the purposes of succession.

They note one possibility which will become more likely:

One risk which already exists under present Law is the possibility of previously unknown heirs coming forward after an estate has been distributed, to claim a share of it. This can arise where a person dies without making a will, or leaves property under a will to his or her children without identifying them by name. Examples of such occurrences might be where, for example, previously unknown adopted children, or children from a previous marriage, come forward to claim a share of the estate.

Where protection had been afforded to a purchaser or donee by virtue of this provision, the heirs disposing of the property would still be liable to account to an unknown heir for the value of the latter's share. However, this liability would come to an end after 10 years had elapsed from the date of disposal of the property. The 10 year period is consistent with the prescription period in Jersey contract law.

What is not mentioned - as presumably it can now be taken care of by DNA testing - is people who are "chancers" coming forward to make spurious claims. It is also not clear who would be responsible for incurring the costs of such testing, especially if the results were negative.
But there are other problems with inheritance not addressed.

An area where I have found problems with inheritance was the practice in the 1940s and 1950s whereby, in place of an adoption law, Guernsey (and I believe Jersey as well) used a legal fudge of (1) a deed poll to change the child's surname, and (2) an order granting the prospective "adoptive" parents rights as legal guardians.

Later, proper adoption laws were brought in, but for those "adopted" under this practice, if the "parents" died intestate, there were no rights of inheritance.

I know of one case from personal experience (where I acted as administrator for an estate) where this came as a distressing blow after a parent's death - not that there was much estate (which was purely personal property), it was simply the knowledge that they had been "cut out" by the archaic practices, and no one had thought to amend the law to stop this loophole. It came as quite a shock. As far as I know, this would still apply.

Obviously, now there are proper laws in place for adoption, this no longer applies, and as time goes on the number of people affected by it will diminish as the older generation dies out; also if wills are made, this can circumvent much of the problem. It will become a legal curiosity, a legacy of the past.

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