Despite the various challenges arising from COVID-19 restrictions, individuals and businesses have shown resilience and an ability to swiftly adapt in order to make the most of the new reality – and Jersey has been no different. In particular, the States of Jersey were among the first in the world to introduce new wills and probate legislation as a direct result of the impact of the pandemic.
If a person holds assets in Jersey, they may wish to appoint someone who can manage those assets in the event that they should lose capacity to such an extent that they can no longer do this themselves. At present, there is no facility for such individual to put a local Jersey lasting power of attorney in place to cover their Jersey-based assets. Instead, the Royal Court will recognise the foreign power of attorney, provided that power of attorney is registered with the court.
Lasting powers of attorney enable a person to appoint someone else to make decisions on their behalf in respect of their property and affairs and health and welfare. This is especially useful during the COVID-19 pandemic for people who are considered high risk and are unable to leave their homes or those who are self-isolating.
Recent research highlights the increasing likelihood of people being willing to dispute a will and go to court if they are unhappy with the division of their relative's estate, and this is definitely an increasing area of work in Jersey. This article answers some pertinent questions concerning wills.
Personal assets that most commonly need to be accessed in Jersey following the death of a non-domiciled person are shares in Jersey companies and Jersey bank accounts and investments. If individuals are domiciled outside Jersey, they need not prepare a separate will to cover their Jersey personal estate if they already have a valid one which covers their worldwide personal estate; however, doing so can offer significant benefits.
The Signing of Instruments (Miscellaneous Provisions) Jersey Law 2018 was recently passed to enable people to validly execute legal documents (eg, a will or power of attorney) when they are physically incapable of signing their name. It brings about the much-needed change in law that was brought to light in 2015, when a local resident passed away after a paralysis of his hands had rendered him physically – but not mentally – incapable of signing a will.
The Capacity and Self-Determination (Jersey) Law, which is due to come into effect in October 2018, will give people the opportunity, while they still have the capacity, to make their own decisions regarding their financial and personal affairs and welfare. It provides a framework that will give people the opportunity to make their own decisions in respect of medical treatment insofar as possible, including advance decisions to refuse treatment.
An adopted child is treated in law as the biological child of his or her adoptive parents and not the child of any other person. In terms of inheritance, this means that any reference to 'children' in adoptive parents' will or wills includes adopted children. If the parents do not leave a will or wills, the adopted child will have the same legal right to benefit from their estates as any biological child would have.
Jersey is a separate legal jurisdiction from the United Kingdom, with a separate body of law. Many clients do not realise this, which can cause issues when it comes to administering their estates. The law of succession and probate in Jersey differs significantly from that in the United Kingdom and creates responsibilities for the executors and administrators of those who leave behind assets in Jersey.
The Capacity and Self-Determination (Jersey) Law 2016, due to come into effect in April 2018, will be a long overdue update to the old customary laws. This new law will give people the opportunity, while they still have capacity, to make decisions regarding their financial and personal affairs and welfare which will take effect should they lose capacity. There are also likely to be amendments to the Wills and Succession (Jersey) Law 1993, which was the subject of an independent report in 2015.
Many people do not realise what is involved in administering a person's estate until they have to do it themselves and they encounter a minefield of previously unknown terminology and complex legal procedures. For example, in Jersey, 'probate' is the term used for both the grant of probate itself and the process of applying for the right to deal with the estate of someone who has passed away.