The next phase of the Charities (Jersey) Law 2014 was enacted on May 1 2018, allowing entities to finally register as charities under the law. The remaining provisions of the law are expected to come into force on January 1 2019, which will amend Jersey taxation legislation in relation to charities. This is an exciting opportunity for Jersey to reinforce and develop its status as a centre of excellence for philanthropy both in private wealth management and impact investing.
Effective from September 1 2018, the Discrimination (Jersey) Law 2013 will be amended to include disability as a protected characteristic. The amending regulations will give individuals the right to complain to the Employment and Discrimination Tribunal when they believe that they have experienced discrimination. While many employers and groups will be familiar with the way that the regulations work, they should be taking steps to ensure that they are compliant ahead of the implementation date.
The revised Jersey Financial Services Commission codes of practice came into force on March 21 2018. As a matter of urgency, regulated businesses should therefore review the changes to the codes and consider whether any new implementation measures are necessary. The changes to the codes have considered industry feedback and include both new and revised regulations to align Jersey with the Group of International Finance Centre Supervisors standard.
The use of private trust companies is becoming more common as a method of retaining family control through the generations. This, of course, all needs to be balanced against tax and reporting considerations, as well as practical ones. That said, however good the adviser, it is difficult to plan for family disputes; therefore, the main emphasis should be on maintaining flexibility so that the trustee can react to changes of circumstances and wealth passing through the generations.
The Jersey Financial Services Commission (JFSC) recently published its Supervisory Examination Guide. The guide, which is effective immediately, gives a detailed overview of the supervisory examinations conducted by the JFSC. Examinations are a key tool used by the JFSC to detect and deter breaches of regulatory standards and improve compliance.
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.
An unmarried couple, both with housing qualifications, can buy property in joint names and have the security of jointly owning their home. For unmarried couples where only one partner has housing qualifications, the position is more difficult. For freehold property, only the qualified partner can own it. It is therefore important that couples in this situation enter into an equity agreement in order to protect the unqualified partner's position so far as legally possible.
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.
Employers can enforce dress codes only within the confines of the discrimination law. For example, a requirement for a female receptionist to wear high heels is illegitimate since no equivalent requirement is placed on male employees. Employers that want to enforce a dress code should consider the discrimination law and whether their proposals meet it. A recent Jersey case illustrates how this works.
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.
The Royal Court recently assessed a case where the representor of a trust had sought to retire as trustee and provided the notice required under the terms of the trust to the company. Despite the fact that the trustee had reminded the company, no replacement was lined up when the company was dissolved. The case focused on the distinction between a trustee's fiduciary responsibilities and its powers and discretions provided for by the terms of a trust.
Lawyers are often asked to review employment contracts, including post-termination restrictions. It is increasingly common to see covenants that either restrict the former employee from holding any interest in a competing business or limit the amount of shareholding that they can have. If a contract uses this language, it could lead to the entire restrictive covenant being unenforceable.
The procedure governing the reinstatement of a dissolved Jersey limited company is contained in the Companies (Jersey) Law 1991. Where a company has been dissolved or, most commonly, struck off the register by the registrar of companies after failing to file an annual return, the Royal Court has the power to declare the dissolution void and order the reinstatement of the company.
The enactment of the Trust (Amendment 6) (Jersey) Law 2013 saw Jersey introduce a statutory basis for relief to be granted for mistake in the form of Article 47E of the Trusts (Jersey) Law 1984. Although there have been a number of Royal Court decisions in this area since then, a recent decision represents the first time that the court has granted relief for mistake squarely within Article 47E.
A recent Jersey Royal Court decision provides welcome guidance with respect to Article 47 applications to vary a trust. In particular, the court considered the interplay between a settlor's wishes and the court's assessment of 'benefit', a point which it had never previously considered. The decision also examines Article 47 applications alongside public policy considerations affecting a modern society.
The deadline recently passed for legal entities to file details of beneficial ownership and control with Jersey's Companies Registry. Under the revised rules, even if there had been no change to the relevant information since incorporation, legal entities were still required to file the relevant form. While the deadline for the initial disclosure has passed, there are ongoing compliance obligations for affected entities to keep in mind.
A recent UK tax case involving three Jersey companies sounds a note of caution with regard to interaction between offshore subsidiaries and UK parent companies and the role of directors. The case serves as a timely reminder that Jersey resident directors cannot provide a purely 'administrative' service for the benefit of the parent owner.
According to a 2016 report, 212,615 individuals in the world hold a total of over $30 trillion in wealth. By 2020 the number of ultra-high-net-worth individuals is anticipated to reach 318,000 with compound annual growth of 9%. It seems clear that clients will continue to want structuring options in stable and established jurisdictions. This means that Jersey remains an attractive proposition for Middle East and Far East ultra-high-net-worth individuals.