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23 August 2018
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.
The will must be read aloud to the person making the will and they must declare, in the presence of two witnesses – one of whom must be a local advocate, solicitor or notary – that the will shall be signed by another person on their behalf. These requirements are intended as safeguards against possible abuses of the new law where someone signs a will or a document on behalf of someone else. The procedure is not dissimilar to that followed for the signing of wills covering Jersey real estate.
The law was registered by the Royal Court of Jersey on 1 June 2018 and came into force on 8 June 2018 (except for Article 5, which relates to the Capacity and Self Determination (Jersey) Law 2016 and will come into effect once the latter comes into force).
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. As a result, he was considered to have died intestate despite having directed a friend to sign his will on his behalf, and his estate passed in accordance with the law rather than in accordance with his wishes. Fortunately, his family agreed for his estate to be distributed in line with his wishes as outlined in the invalid will; however, had there been any family discord, this solution would not have been available.
The case raised potential human rights and discrimination issues within the existing law, as there was no mechanism by which a person with a physical disability or medical condition that rendered them unable to actually sign their name could make a valid will.
The new law also amends the laws in relation to the signing of affidavits, powers of attorney and lasting powers of attorney (as governed by the new Capacity and Self-Determination (Jersey) Law 2016) to enable these documents to be validly executed by a person who cannot physically sign their name.
It is a welcome development that this gap in the law has been addressed.
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