Corporate & Commercial

Ferbrache & Farrell LLP’s corporate department offers full service corporate, banking and commercial cover and is able to advise on all aspects of Guernsey corporate and commercial law, including banking and finance, regulatory, investment funds, asset management and listings on The International Stock Exchange (TISE).

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21 February 2024
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Many leases and tenancies contain provisions that restrict activity at, or use of, the property. Typically, use clauses may restrict what is permitted, such as…
Dispute Resolution

The dispute resolution department at Ferbrache & Farrell LLP has vast experience of local and international litigation and dispute resolution generally, gained from acting in complex local and international high-value disputes, both in Guernsey and throughout the world.

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21 February 2024
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Many leases and tenancies contain provisions that restrict activity at, or use of, the property. Typically, use clauses may restrict what is permitted, such as…
Property

The Guernsey property department is dedicated to providing tailored solutions that meet and exceed clients’ expectations. In addition, the property department provides support to colleagues in the corporate and dispute resolution departments on real estate-related technical points of law.

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21 February 2024
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Many leases and tenancies contain provisions that restrict activity at, or use of, the property. Typically, use clauses may restrict what is permitted, such as…
UK Real Estate

We are delighted to help in relation to providing legal advice for real estate in England and Wales. We listen. We learn what your needs are. We proactively respond. Whether it’s personal or commercial property, we always provide sound and pragmatic advice, adding value to the transaction.

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21 February 2024
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Many leases and tenancies contain provisions that restrict activity at, or use of, the property. Typically, use clauses may restrict what is permitted, such as…
Private Client

Our services for private client matters include the drafting of realty and personalty wills, obtaining Grants of Probate, acting as professional executors and assisting foreign lawyers who have requirements in this jurisdiction.

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21 February 2024
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Many leases and tenancies contain provisions that restrict activity at, or use of, the property. Typically, use clauses may restrict what is permitted, such as…

Legal 500 rankings: Ferbrache & Farrell recognised in all practice areas

Today sees the release of the Legal 500 United Kingdom 2024 rankings. This is a very important publication in the legal world as it offers a myriad of useful information for potential clients, intermediaries, and referrers.

We are absolutely delighted that Ferbrache & Farrell LLP has again been recognised in all practice areas and had another great year of rankings, notwithstanding the firm has only been established for some 7 years.

Gavin Farrell is a ‘Hall of Fame’ lawyer, and both Martin Jones and Alastair Hargreaves are described as ‘Leading Lawyers’ in their respective fields of dispute resolution and commercial property.

Congratulations to Robert Breckon and Alison Antill for some superb client testimonials, and also to Stuart Nash who is described as a ‘Rising star’.

In all of these accolades, however, the firm and partners know that it is the sum of all parts, and only due to the concerted team effort throughout the business.

Ferbrache & Farrell has welcomed news that Lasting Powers of Attorney (often called ‘LPAs’) are a step closer to being implemented in the Bailiwick of Guernsey.

From April 2022, islanders will be able to make advance decisions on matters such as their own health and welfare and their own property and financial affairs. The Capacity (Bailiwick of Guernsey) Law, 2020, has been in the pipeline for some time. If States members give it the final seal of approval next month it will mean big changes to the way islanders are able to plan for their futures.

‘Currently if someone has made a Power of Attorney, and they then lose mental capacity – the ability to make decisions – then the Power of Attorney will cease to have effect.  The new Lasting Powers of Attorney are different, in that they will continue to have effect after someone loses their mental capacity. This flexibility means islanders can plan for their future effectively,’ explained Advocate and Managing Partner Alastair Hargreaves.

‘Ferbrache & Farrell warmly welcomes the development of the new Lasting Power of Attorney regime which will provide flexibility to islanders to futureproof their decision making, and when needed most in their lives.’

The Capacity Law envisages two types of Lasting Powers of Attorney; the first type relating to health and welfare and the second type relating to property and financial affairs.

Lasting Powers of Attorney are available for anyone who has reached 18 years of age, has the mental capacity to execute the relevant LPA, has the mental capacity to apply to register the LPA(s), and legislative provisions on the subject are met.

‘It is not possible to make an LPA if mental capacity has been lost, so it is most prudent to enter into such arrangements sooner rather than later if the decision to do so has been made,’ said Advocate Hargreaves.

An Advocate is not needed to implement a LPA (but can assist if needed). It is intended that the LPA form can be downloaded from the Royal Court website (www.guernseyroyalcourt.gg), and once completed it would be taken to the Greffe for registration (by appointment only).  The fee for a single LPA would be £80, and for both LPAs would be £100.

 

 

Law firm Ferbrache & Farrell LLP is celebrating its five-year anniversary.

Opening in November 2016 with just nine people, the team now numbers more than 30, with an increasing local and international client base.

With core offerings in corporate law, dispute resolution and private client (including both Guernsey and English residential and commercial real estate and property), its client base ranges from local individuals through to well-known international institutions, for all their Guernsey legal requirements.

Managing Partner, Alastair Hargreaves, said of the anniversary: ‘It has been a privilege to work alongside such talented people in Ferbrache & Farrell and to see our business develop in the way it has. We are committed to providing a first class legal service and to helping our clients with innovative, timely and cost effective solutions. We thank all of our clients and intermediaries for the invaluable support, trust and confidence they place in us and we look forward to the next five years.’

In its relatively short growth phase, the firm and its lawyers have been recognised on several occasions in professional rankings and directories, and have been shortlisted on multiple occasions for industry awards on both team levels and for the firm overall.

Speaking of the firm’s dispute resolution successes, Partner Martin Jones said: ‘The department has always aimed to offer a credible and cost effective alternative to our larger competitors. The continued growth and increase in instructions, from both local and international clients, is testament to how far we have come since November 2016 and the exciting future that lies ahead.’ 

Although based in Guernsey, the firm works closely alongside a number of well-known law firms, financial and other institutions in other jurisdictions on cross border matters, and particularly so in the corporate team.

Corporate Partner, Gavin Farrell, an industry leader, added: ‘It has been a privilege to be a part of what has now become the only Guernsey-based full service commercial law firm instructed by both local and international client bases and competing with the Guernsey offices of the major global international offshore law firms.’

With all of the challenges facing business and individuals at the present time, the firm is keen to recognise the importance of collaboration and flexibility and to structuring its offerings in a helpful way. With energy and enthusiasm the Ferbrache & Farrell team is actively exploring new opportunities and are looking forward to the coming years ahead.

Ferbrache & Farrell continues to increase its recognition as a Guernsey law firm in the legal directories.

All departments or leading Advocates of Ferbrache & Farrell have been recognised in the 2022 edition of Chambers UK. The highly respected legal directory ranks law firms and their lawyers based purely on client feedback.

Ferbrache & Farrell’s dispute resolution department is highlighted in the guide for its expertise in a range of dispute areas, in particular commercial and trusts litigation. Clients described the department as ‘personable’ and having good communication.  One source noted: ‘They have quality people on the team who are thorough, professional and approachable.’

Advocate Jones, who leads that department and has achieved a band 3 recognition for dispute resolution, acts on trust and regulatory disputes, as well as negligence and breach of duty claims. He commented: ‘It is especially pleasing to note that as we approach our fifth anniversary, the firm is one of only two single jurisdiction office practices to be ranked, which is testament to the quality and dedication of our lawyers and staff.’

A client noted: ‘Apart from his knowledge of Guernsey law, which is considerable, he displayed compassion for my predicament and took a personal interest in helping me…Martin was superb – very thoughtful, very collaborative and also very careful, objective and measured.’

Other ranked individuals in the firm include Advocate Gavin Farrell, who remains one of the only two Guernsey lawyers who achieved the top tier ranking for corporate & finance including investment funds. Advocate Farrell is also the only ranked lawyer in the corporate rankings who is from a Guernsey-only practice and not from the Guernsey office of a global offshore law firm. The guide describes Advocate Farrell as being highly regarded for his extensive funds knowledge. He advises clients on a wide variety of matters including fund formation, investments and operational issues.’

‘It is particularly pleasing to be the only Guernsey corporate lawyer and department to achieve this from a single-office, independent firm. Our ranking is however a reflection of the entire firm’s collective work and effort. It is not down to individuals,’ said Advocate Farrell.

Advocate Hargreaves, who is also the firm’s managing partner, leads the property and private client department. He is ranked band 2 for property and is described as being well respected for his broad practice advising on both residential and commercial property matters. His areas of work also include development issues and acquisitions. One client noted: ‘He has an ability to make all clients feel at ease, and his advice is concise, accurate and commercial.’

Advocate Hargreaves added: ‘I’m delighted with our continuing success and market recognition – a testament to our team and our commitment to our clients.’

Ferbrache & Farrell was established in 2016 and consists of highly respected individuals with decades of experience and who are all recognised locally and internationally for their levels of expertise in commercial law, property law, private client and dispute resolution.

Last month the firm was recommended across four practice areas in The Legal 500 2022 UK rankings.

 

For more information about our rankings in Chambers UK 2022, click here.

 

 

Ferbrache & Farrell LLP has been recommended in four practice areas in Guernsey in the Legal 500 United Kingdom 2022 rankings, reflecting the excellent quality of their legal services, testimony of their clients and the top lawyers they have in these fields.

One of the leading directories for the legal industry, the Legal 500 has ranked the firm in Commercial Property, Corporate and M&A, Dispute Resolution and Investment Funds. The firm has nine lawyers from all departments named in the guide, with two recognised as leading individuals, one in the next generation lawyers group and one rising star.

The Legal 500 named head of dispute resolution Advocate Martin Jones a Next Generation Partner, while managing partner Advocate Alastair Hargreaves and Advocate Gavin Farrell achieved Leading Individual status, respectively for Commercial Property and Corporate and M&A. Advocate Farrell is also the only Guernsey lawyer to remain in both of the publication’s Halls of Fame – for Banking & Finance and for Investment Funds.

The firm’s commercial property team retained its listing in Tier 2, as a premier property practice, headed Advocate Hargreaves, with Anna Douglass, solicitor & counsel, being a key lawyer.

The firm’s corporate team, headed by Advocate Farrell, with key lawyer & counsel Helen McGeoch, has also received an outstanding Tier 3 result. A separate Tier 3 ranking was also awarded to the firm’s corporate team in the practice area of investment funds.

The dispute resolution team headed by Advocate Jones has also received a Tier 3 rating, with its key lawyers Alison Antill and Robert Breckon receiving a notable mention.

‘The 2022 UK Legal 500 results are tremendous and reflect the hard work of the team and our commitment to a first class client service experience,’ said Advocate  Hargreaves.

‘It also reflects the cross-jurisdictional knowledge and recognition of our team members, which is very impressive for a boutique medium size firm approaching its sixth year in operation. Our firm is very proud to be amongst most, if not all, firms which are long-established global offshore practices. We are extremely proud of these achievements, both at firm and individuals’ levels, and will continue to work together to best help our clients.’

The Legal 500 UK ranks law firms after a thorough and independent research process, which includes testimonials from clients, as well as information provided by the firms themselves.

To view Ferbrache & Farrell LLP’s rankings, click here.

Making a will is an important part of managing your affairs. With our help, it need not necessarily be a difficult or time consuming process.

A will gives effect to your wishes and provides you with certainty as to how your assets will be treated and distributed upon your death.

Not making a will means that your assets will be dealt with in a specific way governed by law. These are called the Intestacy Rules. This may not reflect what you might have intended, and may have unforeseen and unwanted consequences.

Because an executed will is signed and dated in the presence of witnesses, it is effectively a snapshot of your intentions and your assets at a particular time. Therefore, it is important to review your will every three to five years to ensure it accurately reflects any changes in your circumstances or in your intentions.

When working with you to produce your wills, we have various explanatory documents that demystify the process and which help and support you. This ensures that the drafting exercise is as smooth and as simple as possible.

Knowing when to change or review your will

Births, deaths, marriage and divorce are all significant life changing events. Chances are, if you live long enough you will go through various life changing events such as these.

And if you have a will or have done estate planning, you will need to carefully review and update your documents after each such significant change.

Simple changes to a will can be done through a Codicil (i.e. change of address or adding a beneficiary etc.), whereas more substantive changes will require a brand new will to be drafted.

Judicial Separation, Divorce or Marriage

Any time a new spouse is added to your family or your life, or if there is – unfortunately – a judicial separation or divorce, you should always carefully review and update your will. In most wills, people designate where their assets will be distributed – most commonly to a spouse. But if that changes, you will need to designate who will be the beneficiary of your money, property and life insurance or other assets after you pass away. Outdated documents could result in the wrong people receiving your assets, leaving your intended beneficiaries with possibly very little or no recourse.

Birth or adoption

If you are the proud parents of a new baby, congratulations! But now is the time to update your will and do some estate planning, so you can plan for that child’s future care and financial stability. Adding a new family member – either through a birth or adoption – is always a good time to review your documents so you can plan and prepare.

It’s also a good idea to make sure your assets will be divided as you see fit between your spouse and your child or children.

Grandchildren

Grandchildren are such a blessing and as doting grandparents, you might want to help the offspring of your offspring with money for education, their first car or other expenses. So, if you are enjoying being a grandparent, you may wish to consider updating your will to make allowances for that.

Death

Death is inevitable and when it hits your family, updating your will is probably the last thing on your mind. However, it is probably one of the most crucial times to make sure your will is current.

Whether it’s the death of a spouse, a child or another beneficiary, it’s always a good idea to revise your will to reflect your new family situation.

Guernsey Considerations

Before 2 April 2012, Guernsey was a jurisdiction in which forced heirship rules applied. Those rules have their roots in Normandy customary law which is many centuries old.

Forced heirship rules set out very clear requirements on how assets are dealt with at the time of one’s death. In consequence, a person had limited flexibility and freedom of choice when it came to deciding who might have the benefit of that person’s property, and in what proportions.

That said, wills made before 2 April 2012 are still valid if they have been executed correctly. For this reason, the earlier rules continue to remain important to understand, particularly for the process of probate (which involves the Ecclesiastical Court), and are described below.

The Inheritance (Guernsey) Law 2011 removed those earlier restrictions of choice and from 2 April 2012 we are now living in a Guernsey society where freedom of testamentary disposition applies. That means that, within reason, you can deal with your assets however you please. It is therefore important to take advantage of the benefits that such flexibility of choice provides.

Realty and Personalty

In deciding how you may wish your assets to be treated, an important distinction is made in law between those assets which are realty, and those assets which are personalty.

Realty

Assets of realty are land and buildings, and which would include your home.

The law of the place where such assets are situated will generally determine how they are administered. So, a Guernsey property will be governed in accordance with the laws of the island of Guernsey.

This, however, is slightly more nuanced when a limited company owns a Guernsey property.

In that case, the ultimate technical ownership of the property would be through the holding of shares (which are considered personalty). The tax domicile of the limited company will actually determine the governing law which applies. So, a Guernsey registered company which owned a Guernsey property would be governed by Guernsey law; and an English registered company which owned a Guernsey property would be governed by the laws of England and Wales. Further details about the treatment of personalty appears shortly.

The applicable law is a principal consideration if you own properties outside Guernsey, as in that case it may be advantageous to have separate realty wills for the jurisdictions in which such properties are located. It would also be important in that scenario to ensure that the Guernsey realty will is not accidentally revoked. We will work closely with you in those circumstances to protect your best interests.

In Guernsey, a will of realty forms part of the title to property, and is a document of public record. Copies of wills of realty are available for inspection at the Greffe, and which is situated on the Ground Floor of the Royal Court.

Unlike in England and Wales, probate is not required of Guernsey realty (the title to which immediately passes upon the death of a property owner and without any intervening procedural steps).

Given that by its nature a will is a very personal and private statement of intentions, we would always recommend that our clients have two wills, namely a will of realty (which any member of the public can see), and a will of personalty (which cannot be seen by members of the public).

Personalty

Assets of personalty include cash, shares, jewellery, paintings and other ‘movable’ things. A will of personalty would typically deal with specific gifts to family, friends or charity, for example, and does require a good amount of careful thought. We have produced a supporting document to assist with this, and which sets out various points to keep in mind.

The administration of a will of personalty depends upon where you are domiciled.

Domicile is a complex issue, and there are a number of different types which have very different outcomes. We strongly recommend that you take appropriate tax advice, and we are pleased to be able to recommend accountants who are experts in this particular field, and who we work closely with.

At its simplest, if you are resident in Guernsey at the time of your death, then for tax purposes, the laws of the Island of Guernsey will ordinarily govern the administration of your personalty assets here.

In the event that you are not resident (for tax purposes) in Guernsey at the time of your death, but have assets of personalty here, then the starting point is that your ‘home’ domicile laws will govern the treatment of your Guernsey personalty assets.

The Guernsey probate process does require the payment of a tariff which is broadly equivalent to 0.35% of the total value of the personal assets.

Guernsey does not have an Inheritance Tax regime akin to that in England and Wales, and is therefore a favourable jurisdiction in matters of estate planning.

Property ownership

In the event that you own your home (or for that matter, any realty) with another, then it will be held in one of two ways.

The first method of co-ownership, known as ‘joint ownership’ means that upon a person’s death, their interest in the property will pass automatically to the surviving owner(s).

The second method of co-ownership, known as ‘ownership in common’ means that a person’s interest in a property will not pass automatically to the surviving owners. In that case, the person’s interest in a property is a specific percentage, and which will pass according to their will. It is therefore vital that a will of realty is made, or else the Intestacy Rules will apply (as previously mentioned), and which may lead to an outcome of inheritance that was not anticipated. It is not immediately apparent why it is important to make a will of realty when you may own property on a ‘joint ownership’ basis. In fact, to do so is akin to a policy of insurance.

In the situation of a husband and wife, or civil partners, it is not uncommon for each to leave their assets to the other. What is sometimes forgotten is the situation when (sadly), both parties may pass away at the same time, and neither has made provision for the situation described above. That can potentially lead to a situation when property passes to a beneficiary that was not intended to receive it, and the uncertainty that may follow. By working with you to bear these considerations in mind, we are able to produce tailored wills that are flexible to meet your needs.

A brief mention of Guardianship in Guernsey

In considering one’s own affairs, it is important to mention here about guardianship.

Guardianship is a very significant step in a person’s life. It is not always necessary.

However, when it is (often due to health reasons and involving medical evidence) it will always involve an application for permission from the Royal Court of Guernsey.

A successful application for guardianship means that the decisions of a person in need of care are taken away from them, and instead are placed in the hands of a ‘family council’. As one would expect, there are various rules around the roles and responsibilities of the members of the family council who tend to be family members, or very close friends.

Our team are able to assist with any queries that you may have in this regard, and which may include powers of attorney.

Ferbrache & Farrell LLP is committed to service excellence and we look forward to helping you.

 

Download your will instructions form here »

 

It is fair to say that this year has been an unprecedented and challenging one for all of us, not only in our home and family circumstances, but also in our business operations. 

We can only be thankful for our adaptable and committed team which has been able to continually assist our client base throughout the changing patterns of their requirements and work environment, during both the lockdown periods as well as the subsequent surge of activity, both accumulated and new. The whole firm has managed change with its customary enthusiasm, professionalism, good nature and problem-solving attitudes and our most sincere thanks go to them and to our clients and intermediaries who have been so resilient this year. We were also sad but happy for Peter in his election and devoting most of his time to pastures new, although grateful for his continued commitment support and assistance to our firm.

Expertise & Accolades

Ferbrache & Farrell (in its short history) established itself in its first year of reporting in fourth place in the prestigious and independent Monterey Guernsey Fund Report’s rankings. With only three long-established well known multi-jurisdictional offshore law firms ahead in the list, Ferbrache & Farrell is delighted with its position in this leading publication.

Early this year, Ferbrache & Farrell was also very pleased to have requested to work in conjunction alongside the Guernsey Construction Industry Forum (CIF) in the preparation of a new minor works template construction contract for use by the local construction industry and its clients.

Ferbrache & Farrell has also been shortlisted in 2020 for three Citywealth International Finance Centre Awards. Based on submissions, judges’ recommendations and editorial research, the boutique independent law firm is in the running for Guernsey Law Firm of the Year, Law Firm of the Year – Litigation and Team of the Year – Litigation. The winners will be announced at a gala event on 23 February 2021.

We are also proud that four lawyers from Ferbrache & Farrell has been recognised in the Chambers & Partners UK Guide, 2021. Martin Jones joined Peter Ferbrache this year to receive a ranking for Dispute Resolution, while Alastair Hargreaves is listed for property and Gavin Farrell for Corporate & Financing including Investment Funds.

A separate recognition has been awarded to our corporate partner Gavin Farrell who has been named Lawyer of the Year for investment funds in Guernsey in the 2021 edition of Best Lawyers. Best Lawyers has been publishing highly regarded guides to the legal profession for more than 30 years and in more than 70 countries worldwide. Gavin’s recognition is based entirely on peer review where lists of outstanding lawyers are compiled by conducting exhaustive surveys in which leading lawyers confidentially evaluate their professional peers.

Towards the end of 2020 Ferbrache & Farrell continues its upwards progression in the rankings of The Legal 500 United Kingdom Solicitors 2021 edition. One of the leading directories for the legal industry, The Legal 500 has ranked the firm in Banking and Finance, Commercial Property, Corporate and M&A, Dispute Resolution and Investment Funds. The firm has nine lawyers from all departments named in the guide. Gavin Farrell, is in the Hall of Fame for Banking & Finance and Investment funds and a Leading Individual in Corporate and M&A.

The Legal 500 named our dispute resolution partner Martin Jones a ‘Next Generation Partner’, Alastair Hargreaves a ‘Leading Individual’ and associate Alison Antill as a ‘Rising Star’ for the second year running. Gavin Farrell remains the only Guernsey Advocate to be in both Halls of Fame and all three corporate rankings.

Our Expansion

With steady and sustainable growth of the firm, in January 2020 we further expanded our litigation team’s family law offering with the appointment of Advocate and Associate Sarah Millar. Sarah’s practice encompasses all aspects of family law, including divorce and childcare issues, as well as general civil litigation and employment matters.

Sarah’s appointment was shortly followed by another appointment of the experienced litigator Robert Breckon in February 2020. Advocate Breckon deals with all aspects of local and international commercial litigation, including trust-related disputes, professional negligence related matters, contract and tort-based claims, as well as contentious and non-contentious employment matters.

In spring 2020, we continued to expand our offering and expertise with the addition of new counsel in our corporate and commercial department, Helen McGeoch. Helen is a senior lawyer who has in excess of 20 years’ corporate law experience. Helen practices in all areas of corporate and commercial law with particular expertise in banking and finance transactions, mergers and acquisitions and commercial agreements. She is also experienced in advising on regulatory and a range of other corporate matters.

This summer we welcomed the senior and highly experienced Counsel and practising Solicitor Anna Douglass who joined Ferbrache & Farrell’s sizeable property team to shortly offer a specialist and bespoke English property law offering to Guernsey residents, investors and other offshore clients, including private banks and trust companies and asset managers. 

In autumn 2020, Anna’s appointment was subsequently followed by the addition of Associate Joshua Black who joined Ferbrache & Farrell’s corporate and commercial team having previously gained general corporate and commercial experience at Specsavers and a local trust company.

You may wish to see our success and growth in numbers at https://www.ferbrachefarrell.com/our-people/

Memorable Deals and Cases

Corporate

This year has certainly tested the wide knowledge and expertise (and drafting skills) of our corporate team. We have been instructed on a very varied mix of instructions, corporate mergers, sales and acquisitions (both local or as part of an international transactions with a Guernsey component), as well as restructurings, fund (both private and public) and asset manager set ups, banking and finance work (acting mainly for borrowers) and regulatory and advisory. We are also very fortunate to have a very good balanced broad client base, both local as well as international, going from both individual and institutional Guernsey business clients to global financial institutions as well as large multi-jurisdictional trading groups and asset managers.

In 2020 Ferbrache & Farrell worked with Aztec to support leading European venture capital specialist firm Lakestar with the side by side closing of its 678 million EUR third-generation fund “Lakestar III” and “Lakestar Growth I” (“the Funds”). With a focus on early and growth-stage internet and technology ventures, Lakestar invests in global companies and has a presence in Europe, North America and Asia. Their previous investments include Facebook, Spotify, Skype and Revolut.

The Ferbrache & Farrell corporate team provided Guernsey commercial, legal and regulatory advice to Lakestar in respect of the formation, structuring and launch of the funds.

Private Client/ Property

On the property and private client side of the practice, we have seen the highest transaction levels in the marketplace for several years, with unprecedented levels of demand.  The local and open market has been exceptionally busy with many instances of contracts becoming unconditional in days (rather than weeks) and properties being purchased despite not having been seen in person.  Commercial property has been buoyant, and we have been very pleased to welcome a number of relocating businesses and families to the Island.  Our planning and population management instructions have kept us busy, and no doubt these will increase as we head into Spring fairly soon.

In autumn this year, Ferbrache & Farrell was proud to be involved as legal counsel for the acquiring investment company in one of the largest commercial property transactions of the year.  The target real estate is a very well-known, Grade A office building in the heart of St Peter Port with institutional tenants.  A number of complex legal issues were successfully resolved, and completion attracted very positive press coverage and subsequent enquiries.

Dispute Resolution

Building on the recruitment of advocates Robert Breckon and Sarah Millar, the department has continued to see an increase in the number of instructions, particularly in the trust, regulatory and matrimonial fields.

It also continues to be involved in significant cases that are heard in the Royal Court. These include Manita Khuller v FNB International Trustees Limited, where the department acted for the successful appellant in the Court of Appeal, overturning a first instance finding that a trustee had not been grossly negligent.

The department also acted for some of the creditors in an application under the Companies (Guernsey) Law 2008 for the Court to approve a contract for the sale of the assets of a Guernsey company in compulsory liquidation. The decision provides helpful guidance for liquidators and creditors as to the issues the Court will take into account in deciding whether to grant such approval.

Martin Jones and Associate Alison Antill acted for the Third and Fourth Joined respondents in the application.

Conclusion

Whilst our firm has been busy especially since the end of our Guernsey lockdown, we are always mindful of others as well as businesses, colleagues and friends who have experienced a very slow and difficult trading year, both in Guernsey and off our shores.  We are privileged to live and work in the Bailiwick of Guernsey and look forward to playing our part in the community in 2021 and in Guernsey’s revive and thrive goal.

As Christmas draws near, we would like to thank you all for your continued support and remind you of the hours we will be working over the festive period.

 

Making a will is an important part of managing your affairs. With our help, it need not necessarily be a difficult or time consuming process.

A will gives effect to your wishes and provides you with certainty as to how your assets will be treated and distributed upon your death.

Not making a will means that your assets will be dealt with in a specific way governed by law. These are called the Intestacy Rules. This may not reflect what you might have intended, and may have unforeseen and unwanted consequences.

Because an executed will is signed and dated in the presence of witnesses, it is effectively a snapshot of your intentions and your assets at a particular time. Therefore, it is important to review your will every three to five years to ensure it accurately reflects any changes in your circumstances or in your intentions.

When working with you to produce your wills, we have various explanatory documents that demystify the process and which help and support you. This ensures that the drafting exercise is as smooth and as simple as possible.

Knowing when to change or review your will

Births, deaths, marriage and divorce are all significant life changing events. Chances are, if you live long enough you will go through various life changing events such as these.

And if you have a will or have done estate planning, you will need to carefully review and update your documents after each such significant change.

Simple changes to a will can be done through a Codicil (i.e. change of address or adding a beneficiary etc.), whereas more substantive changes will require a brand new will to be drafted.

Judicial Separation, Divorce or Marriage

Any time a new spouse is added to your family or your life, or if there is – unfortunately – a judicial separation or divorce, you should always carefully review and update your will. In most wills, people designate where their assets will be distributed – most commonly to a spouse. But if that changes, you will need to designate who will be the beneficiary of your money, property and life insurance or other assets after you pass away. Outdated documents could result in the wrong people receiving your assets, leaving your intended beneficiaries with possibly very little or no recourse.

Birth or adoption

If you are the proud parents of a new baby, congratulations! But now is the time to update your will and do some estate planning, so you can plan for that child’s future care and financial stability. Adding a new family member – either through a birth or adoption – is always a good time to review your documents so you can plan and prepare.

It’s also a good idea to make sure your assets will be divided as you see fit between your spouse and your child or children.

Grandchildren

Grandchildren are such a blessing and as doting grandparents, you might want to help the offspring of your offspring with money for education, their first car or other expenses. So, if you are enjoying being a grandparent, you may wish to consider updating your will to make allowances for that.

Death

Death is inevitable and when it hits your family, updating your will is probably the last thing on your mind. However, it is probably one of the most crucial times to make sure your will is current.

Whether it’s the death of a spouse, a child or another beneficiary, it’s always a good idea to revise your will to reflect your new family situation.

Guernsey Considerations

Before 2 April 2012, Guernsey was a jurisdiction in which forced heirship rules applied. Those rules have their roots in Normandy customary law which is many centuries old.

Forced heirship rules set out very clear requirements on how assets are dealt with at the time of one’s death. In consequence, a person had limited flexibility and freedom of choice when it came to deciding who might have the benefit of that person’s property, and in what proportions.

That said, wills made before 2 April 2012 are still valid if they have been executed correctly. For this reason, the earlier rules continue to remain important to understand, particularly for the process of probate (which involves the Ecclesiastical Court), and are described below.

The Inheritance (Guernsey) Law 2011 removed those earlier restrictions of choice and from 2 April 2012 we are now living in a Guernsey society where freedom of testamentary disposition applies. That means that, within reason, you can deal with your assets however you please. It is therefore important to take advantage of the benefits that such flexibility of choice provides.

Realty and Personalty

In deciding how you may wish your assets to be treated, an important distinction is made in law between those assets which are realty, and those assets which are personalty.

Realty

Assets of realty are land and buildings, and which would include your home.

The law of the place where such assets are situated will generally determine how they are administered. So, a Guernsey property will be governed in accordance with the laws of the island of Guernsey.

This, however, is slightly more nuanced when a limited company owns a Guernsey property.

In that case, the ultimate technical ownership of the property would be through the holding of shares (which are considered personalty). The tax domicile of the limited company will actually determine the governing law which applies. So, a Guernsey registered company which owned a Guernsey property would be governed by Guernsey law; and an English registered company which owned a Guernsey property would be governed by the laws of England and Wales. Further details about the treatment of personalty appears shortly.

The applicable law is a principal consideration if you own properties outside Guernsey, as in that case it may be advantageous to have separate realty wills for the jurisdictions in which such properties are located. It would also be important in that scenario to ensure that the Guernsey realty will is not accidentally revoked. We will work closely with you in those circumstances to protect your best interests.

In Guernsey, a will of realty forms part of the title to property, and is a document of public record. Copies of wills of realty are available for inspection at the Greffe, and which is situated on the Ground Floor of the Royal Court.

Unlike in England and Wales, probate is not required of Guernsey realty (the title to which immediately passes upon the death of a property owner and without any intervening procedural steps).

Given that by its nature a will is a very personal and private statement of intentions, we would always recommend that our clients have two wills, namely a will of realty (which any member of the public can see), and a will of personalty (which cannot be seen by members of the public).

Personalty

Assets of personalty include cash, shares, jewellery, paintings and other ‘movable’ things. A will of personalty would typically deal with specific gifts to family, friends or charity, for example, and does require a good amount of careful thought. We have produced a supporting document to assist with this, and which sets out various points to keep in mind.

The administration of a will of personalty depends upon where you are domiciled.

Domicile is a complex issue, and there are a number of different types which have very different outcomes. We strongly recommend that you take appropriate tax advice, and we are pleased to be able to recommend accountants who are experts in this particular field, and who we work closely with.

At its simplest, if you are resident in Guernsey at the time of your death, then for tax purposes, the laws of the Island of Guernsey will ordinarily govern the administration of your personalty assets here.

In the event that you are not resident (for tax purposes) in Guernsey at the time of your death, but have assets of personalty here, then the starting point is that your ‘home’ domicile laws will govern the treatment of your Guernsey personalty assets.

The Guernsey probate process does require the payment of a tariff which is broadly equivalent to 0.35% of the total value of the personal assets.

Guernsey does not have an Inheritance Tax regime akin to that in England and Wales, and is therefore a favourable jurisdiction in matters of estate planning.

Property ownership

In the event that you own your home (or for that matter, any realty) with another, then it will be held in one of two ways.

The first method of co-ownership, known as ‘joint ownership’ means that upon a person’s death, their interest in the property will pass automatically to the surviving owner(s).

The second method of co-ownership, known as ‘ownership in common’ means that a person’s interest in a property will not pass automatically to the surviving owners. In that case, the person’s interest in a property is a specific percentage, and which will pass according to their will. It is therefore vital that a will of realty is made, or else the Intestacy Rules will apply (as previously mentioned), and which may lead to an outcome of inheritance that was not anticipated. It is not immediately apparent why it is important to make a will of realty when you may own property on a ‘joint ownership’ basis. In fact, to do so is akin to a policy of insurance.

In the situation of a husband and wife, or civil partners, it is not uncommon for each to leave their assets to the other. What is sometimes forgotten is the situation when (sadly), both parties may pass away at the same time, and neither has made provision for the situation described above. That can potentially lead to a situation when property passes to a beneficiary that was not intended to receive it, and the uncertainty that may follow. By working with you to bear these considerations in mind, we are able to produce tailored wills that are flexible to meet your needs.

A brief mention of Guardianship in Guernsey

In considering one’s own affairs, it is important to mention here about guardianship.

Guardianship is a very significant step in a person’s life. It is not always necessary.

However, when it is (often due to health reasons and involving medical evidence) it will always involve an application for permission from the Royal Court of Guernsey.

A successful application for guardianship means that the decisions of a person in need of care are taken away from them, and instead are placed in the hands of a ‘family council’. As one would expect, there are various rules around the roles and responsibilities of the members of the family council who tend to be family members, or very close friends.

Our team are able to assist with any queries that you may have in this regard, and which may include powers of attorney.

Ferbrache & Farrell LLP is committed to service excellence and we look forward to helping you.

 

Download your will instructions form here »

 

In June 2020, we looked closely at the Guernsey property market post Covid-19

https://www.ferbrachefarrell.com/insight/2020/the-property-market-post-covid/ 

At that point, we were full of hope that with the guidance from the Director of Public Health and support from our community, we would see an upswing in market activity in the subsequent months. It is fair to say that our expectations have been exceeded.

 

Guernsey property 

As a property practice, we have had an exceptional summer. We have enjoyed the property bounce-back since lockdown, with an increased number of instructions. 

Those instructions have been varied, from million-pound plus properties, to assisting first-time buyers in getting onto the property ladder.

The levels of local market activity have been increasing, and we are yet to see any sign of a slowdown. 

Open market sales still have a little way to catch up, but with the current efforts being made to facilitate safe viewings and allowing potential off-island buyers to travel (without the need for mandatory self-isolation provided their travel is carried out in a controlled environment), we are confident that open market activity will be more buoyant.

 

Property in England and Wales

Similarly in England and Wales, the housing market is enjoying a post-lockdown ‘mini-boom’.

This has been fuelled by the stamp duty ‘holidaymakers’. The window for taking advantage of the Stamp Duty Land Tax cut is currently open until the end of March 2021. Realistically speaking, however, only the properties which are on the market now, or imminently coming to the market, stand the best chance of being snapped up quickly by the flurry of fresh buyers who are keen to capitalise on the SDLT savings. 

Homes throughout England and Wales are coming to market, again creating a noticeable surge in activity. This is propelled further by the change in consumer appetite for properties with a home office, garden and flexible space. The lively property market has been widely welcomed, and is a much-needed stimulant for the post lockdown economy.

What is the shape of things to come?

Working from home and flexibility will continue to be a driving factor in the property search for housing markets in Guernsey and in the UK. 

Additionally, the Guernsey market may further benefit from the overall global perception of being a safe and welcoming place, with a stable economy and first class management from the States of Guernsey in handling the Covid-19 situation.

In England and Wales, remote and flexible working and the SDLT holiday will continue to play a very important role in stimulating the property activity. However, some potential buyers may still be concerned about the resurgence of Covid-19 in the autumn, and may choose to hold back and ride it out until the end of 2020 before committing. For others, the end of the government’s furlough scheme in October could be a concern.

Although it is yet unclear what the ‘new normal’ actually means in property terms (in Guernsey or elsewhere), any activity that makes a positive contribution to the situation is to be welcomed.