The COVID-19 pandemic has necessitated adaptation on everyone's part, with restrictions on travel and in-person gatherings altering, perhaps indelibly, the way in which individuals communicate and interact with each other. The legal world is no different, with COVID-19 restrictions presenting some significant challenges to wills and probate procedures all at a time when people's minds have naturally turned to estate planning.
Despite these challenges, 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 COVID-19.
Ordinarily, laws in Jersey, which – especially in terms of will signing requirements and succession rights, are different to those of the United Kingdom, with much of their basis traceable back to Norman customary law – can take time to be updated. For example, Jersey still retains an element of forced heirship, known as 'legitime', which has been debated in the states and by a wider committee on a number of occasions since 2003, but which remains in place at present (Guernsey abolished its equivalent to legitime in 2012). Nevertheless, Jersey responded quickly to modify procedures in two major areas significantly affected by COVID-19 restrictions:
- in-person witnessing of wills (and some other documents); and
- in-person applications for a grant of probate.
On 23 April 2020 the government introduced emergency legislation, the Signing of Instruments COVID-19 (Signing of Instruments) (Jersey) Regulations 2020, which has enabled people to continue to take steps to put in place wills and sign other formal legal documents, such as oaths and affidavits, during the COVID-19 pandemic. The scope of the regulations has now been extended so that they will remain in force until at least April 2021.
In terms of will signing, this new legislation temporarily relaxed the formal requirement for two witnesses to be physically present when a will is signed. Instead, the witnessing requirements that are necessary to execute a valid will may now be completed by audio or video communication. The regulations outline the ways in which a witness can:
- positively identify the testator;
- witness the signing; and
- formalise the witnessing by completing a written declaration outlining the facts.
The introduction of the regulations has been especially important in 2021 in light of the increase in the number of individuals wanting to write new, or update existing, wills or lasting powers of attorney while either self-isolating or remaining within the government's social distancing guidelines.
The new rules set Jersey apart when formalising a will and ensure that individuals have not and will not be exposed to any increased risks when simply looking to put their affairs in order.
Typically, Jersey law has strict rules regarding the execution of wills. Unless a will covering movable assets is entirely written in the hand of the testator, all wills must be signed in the physical presence of two witnesses. If the will covers Jersey real estate, there are further rules whereby one of the witnesses must be a qualifying witness (being a jurat of the Royal Court, advocate, solicitor, member of the states or a notary (who can witness if the will of Jersey real estate is executed outside Jersey)) and the will of Jersey real estate must be read aloud to the testator by the qualifying witness in the presence of the testator and the second witness.
The advocate or solicitor acting as witness must be confident that any individual who makes a will in this manner does so willingly and has the required capacity to do so and to take steps to ensure that this is the case.
One of several quirks of the Probate (Jersey) Law 1998 is that the personal representative of a foreign-domiciled deceased person's estate must attend an appointment in-person with the registrar of probate in the Royal Court in order to obtain a grant of representation.
This means that the personal representative of a deceased person's estate, who will be either the executor named in the deceased person's will or the person(s) entitled to administer an intestate estate, must travel to Jersey.
During this appointment, the personal representative must present the registrar with all relevant documents. Provided that these are all in order, the personal representative will take the oath of executor or administrator in the registrar's presence and sign the oath and, if relevant, the will.
During 2020, and due to travel restrictions in force globally, the opportunity for a personal representative to travel to Jersey to make this personal appearance has been severely limited. However, the regulations also offer the opportunity (Rule 2) for the swearing of an oath and probate applications to be made by video link provided that the application is made with the assistance and representation of a Jersey advocate or solicitor who is expected to also appear together with the applicant (as required under Rule 2 of the Probate (General) (Jersey) Rules 1998).
Probate papers should now be filed electronically with the greffier at least three days before the scheduled probate appointment.
Despite the current restrictions, Jersey's probate process remains one of the most efficient in the world with the grant being issued three to five days following the successful appointment. This enables Jersey-situs assets to be administered promptly and efficiently, which can give considerable peace of mind to beneficiaries who might wait months for assets in other jurisdictions to be released.
Jersey, even with its traditional processes and unique historic influences, has still shown itself to be open to change, versatile and adaptable in the past 12 months – a trend which is expected to continue to be reflected in 2021.
An earlier version of this article was published by Private Client Dining Club.
