Probate (Jersey) Law 1998: Amendment: Law drafting instructions

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A decision made 28 February 2017:

Ministerial decision reference MD-C-2017-0021
Decision summary title Law drafting instructions: Amendments to the Probate (Jersey) Law 1998
Decision summary author	Assistant Director, Social Policy	Is the decision summary public or exempt?		Public
Report title Law drafting instructions: Amendments to the Probate (Jersey) Law 1998
Report author or name of person giving report	Law Officers Department	Is the report public or exempt?		Public
Decision and reason for the decision The Chief Minister has decided that the Probate (Jersey) Law 1998 should be amended. The Probate (Jersey) Law 1998 is to be amended, providing for the introduction of a small estates exemption which will help reduce the administrative burden arising from the current requirement to obtain a grant of probate or of administration before dealing with small amounts of moveable property. This will, amongst other things, assist care professionals in managing the possessions of deceased patients and clients.
Resource implications None.
Action required To request the Law Draftsman to prepare the amended Law for the States to debate.
Signature			Position Senator I J Gorst Chief Minister

Date signed			Effective date of the decision

Probate (Jersey) Law 1998: Amendment: Law drafting instructions

Ministerial Decision Report:

Law Drafting Instructions – Amendments to the Probate (Jersey) Law 1998

Submitted: 16 February 2017

Contents:

Introduction

Consultation and Discussion

Key policy objectives for Amendments

Introduction:

The Probate (Jersey) Law 1998 (“the 1998 Law”) has been on the statute book for nearly two decades; and certain aspects of it have been examined recently by an informal working party consisting of H.M. Solicitor General; H.M. Receiver General; the Viscount and the Registrar of Probate (Judicial Greffe).

The work done has yielded certain suggestions for reform of the 1998 Law which focus upon the introduction of an exemption from the need to obtain a grant for small estates. In addition to this, a number of minor related amendments have been highlighted that we propose to address at the same time. These issues include the customary position of bona vacantia (or déshérence as it is traditionally known in Jersey) and connected changes to the 1998 Law in order to clarify the extent of the application of the Law to the Crown.

Consultation and Discussion:

The impetus for this project came about further to a number of queries received by the Law Officers Department from the Department of Health and Social Services concerning how they might be permitted to deal with movable property in their possession belonging to patients who had died. These queries related to different cases, but all highlighted the unnecessary administrative burden arising from the requirement in the 1998 Law to obtain a grant of probate or of administration before administering or dealing with small amounts of moveable property.

Article 23 of the 1998 Law makes “intermeddling” (ie dealing with a deceased person’s property without a grant of probate) a criminal offence. At present some intermeddling does take place in reliance upon guidance issued by the Attorney General that it would not be in the public interest to prosecute intermeddling in respect of small amounts of moveable property. However, the informal working party agreed that the introduction of a small estates exemption (up to some threshold to be decided) would be desirable in order to provide greater clarity and certainty and alleviate administrative burden. However, the informal working party agreed that such an exemption would need to be as thoroughly researched and practically useful as possible.

The Registrar of Probate highlighted that from her Department’s perspective that there is also little practical benefit to the States in retaining the necessity of a grant for estates with a value of between £5,000 to £10,000 - given that there is no stamp duty paid with respect to estates worth less than £10,000. She emphasised the importance of discussing this and other aspects of these proposals with interested stakeholders in a wider meeting in order to develop a workable solution to these issues that takes a proportionate approach to protecting a deceased person’s property, whilst enabling decisions to be made quickly about what should be done with small amounts of moveable property.

The Legal Adviser involved in coordinating the informal working party engaged in initial legal research in order to give purpose and shape to the first draft of Instructions. Further, the Legal Adviser and informal working group have now consulted with various representatives from the Department of Health & Social Services and the banking industry in order to develop the finer detail of the proposals.

The Instructions contained herein represent the required amendments to be made to the 1998 Law.

Instructions:

Article 19: Necessity for production of grant

Policy aim:

The principal policy objective of these instructions is to create a new small estates exemption from the requirement in Article 19(1) of the 1998 Law for a grant of probate to be obtained before dealing with a deceased person’s moveable property. There is already an exception from this requirement in Article 19(2), but this only applies where the deceased is domiciled outside of Jersey. It is also required that the maximum monetary amount currently at Article 19(2) be amended in order to match that being introduced for the small estates exemption.

The new small estates exemption sought should apply in the same circumstances as would the exemption in Article 19(2) of the 1998 Law, but in relation to a person in Jersey who holds any relevant movable estate (i.e. movable estate situated in the Island where the value of that movable estate does not exceed the specified maximum monetary amount) belonging to a person who died domiciled in Jersey. This moveable property may form the whole or part of the movable estate of a deceased person who dies domiciled in Jersey.

The draft amendment would also enable the maximum monetary amount to be amended in the future by Ministerial Order (for both the amount in Article 19 in respect non-Jersey domiciled persons and for the new small estates exemption).

Amendment to Article 19 of the 1998 Law would go on to make provision that a person in possession of relevant movable estate might be able to release it to a third person (on his or her application) who, to the person in possession, appears entitled to receive it under the terms of the will (if any) of the deceased or under Jersey law i.e. the law of the deceased’s domicile.

Accordingly, the right to release relevant movable estate would be dependent upon the person in possession having considered whether the movable estate should be professionally valued to satisfy him/herself that its value was within the maximum monetary amount.

The right to release relevant movable estate would also be dependent upon the person who applied for the release of the property having provided –

(a) satisfactory documentary or other information as to the entitlement of any person to receive the movable estate; and/or

(b) a satisfactory indemnity in both form and amount.

Amendment to Article 19 of the 1998 Law would also provide for those who have provided care to deceased patients in the course of their duties as States of Jersey employees or as providers or managers of regulated services to release relevant moveable estate in their possession to a third party who has requested them for safe-keeping pending a grant of probate being sought. This would not, however, apply to service providers or managers who have been providing services to the deceased person in the deceased person’s own home.

The right to release relevant movable estate to a third party for safe-keeping would be dependent upon the person applying for the release of the property having signed a new standard form to be added to the Probate (General) Rules 1998.

Further, amendment to Article 19 of the 1998 Law should also provide that items which the deceased is wearing on their person at the time of their death may remain on their person for burial or cremation. This would occur where the deceased prior to death has made such a request of a States of Jersey employee who provides care to that person in the course of their duties or a provider or manager of regulated services, or such items are found on the deceased at the time of their death and there is no reason apparent to the States of Jersey employees, providers or managers of regulated services nor the funeral director to suggest that they should be removed so long as they are acting in good faith. It should also be possible for a third party to request the same (i.e. that such items shall remain on the deceased for burial or cremation) if he or she can show reasonable cause as to why those items should be buried or cremated with the deceased.

The right for relevant movable estate to remain on the person of the deceased would be dependent upon the person so applying to sign a new standard form to be added to the Probate (General) Rules 1998.

New proposals as to Article 19 will also relate to bona vacantia, which concerns property of which no living owner can be traced. The customary law prevails in this area within the jurisdiction of Her Majesty’s Receiver General in Jersey, and, accordingly, where property in question is situated in Jersey, or otherwise in cases where property (wherever situated) belonged to a deceased Jersey person or a dissolved Jersey registered company, it may be claimed by the Crown as such. Therefore, amendments to Article 19 would include provision that a person in possession of relevant movable estate may be able at any time to apply to the Receiver General for that movable estate to be admitted as bona vacantia.

Instruction:

The Law Draftsman is instructed to amend Article 19 so that there is an equivalent exemption to that in Article 19(2), which applies where a person is domiciled in Jersey. This might perhaps be achieved by removing the limit in Article 19(2) on the domicile of the deceased, or by adding a further paragraph to Article 19. The Law Draftsman is further instructed to amend the amount currently reflected for persons domiciled outside Jersey so that it matches that intended for the new small estates exemption.

The Law Draftsman is instructed that the relevant exemption should provide that paragraph (1) of Article 19 shall not apply to a person in Jersey who holds any movable estate situated in Jersey where the value of that movable estate held by that person does not exceed [X]. This must represent the whole or part of the movable estate of a deceased person who dies domiciled in Jersey, or such other amount as may be specified by Order.

Article 19(3) of the 1998 Law makes provision with respect to the distribution of property pursuant to the exemption for people domiciled outside of Jersey. The Law Draftsman is instructed that Article 19 should be further amended with the addition of a new subparagraph to set out the circumstances where a person may distribute a person’s estate pursuant to the new exemption.

Thus provision should be made that a person in possession of any such movable estate as is described above may, on the application of any person, release that movable estate to such person as appears to him or her to be entitled to receive it under the terms of the will (if any) of the deceased person or under the law in Jersey relating to intestate succession.

The Law Draftsman is instructed that Article 19 should be further amended by adding a new paragraph to Article 19 to the effect that, even where an application has been made by a person for release of property pursuant to the new exemption described above, a person in possession of any such movable estate may, at any time, apply to the Office of the Receiver General that the movable estate be admitted as bona vacantia.

That Article 19(4)(a) should be amended to provide that the movable estate may be released after documentary/information as to entitlement and/or a security (to be changed to “indemnity” – see below) has been provided.

That Article 19(4)(b) should be amended with the replacement of the word “security” with “indemnity.” A standard form of indemnity would need to be provided in the Probate (General) Rules 1998.

That Article 19 should be further amended with the addition of a new subparagraph, possibly “Article 19(4A).”

Draft Article 19(4A) should provide to the effect that a person in possession of any such movable estate as is described in new paragraph (2A) shall not release the movable estate or any part of it before:

(i) The person in possession has considered whether the movable estate under their possession should be professionally valued in order to satisfy themselves that the movable estate falls within the value specified at paragraph (2A); and

(ii) The person making the application under paragraph (3A) has provided him or her with:

(a) Such documentary or other information as to the entitlement of any person to receive the movable estate as he or she may require; and/or

(b) An “indemnity” in such form and amount (not exceeding the value of the movable estate to which the application relates) as he or she may require.

That Article 19 should be further amended with the addition of a new subparagraph, possibly “Article 19(4B).”

Draft Article 19(4B) should provide to the effect that those who have provided care to deceased patients in the course of their duties as States of Jersey employees or as providers or managers of regulated services may release relevant moveable estate in their possession to a third party who has requested them for safe-keeping, pending a grant of probate being sought. This does not, however, apply to service providers or managers who have been providing services to the deceased person in the deceased person’s own home.

The right to release relevant movable estate to a third party for safe-keeping shall require the person applying for the release of the property having signed a new standard form to be added to the Probate (General) Rules 1998. Where these requirements are met, Article 19(1) shall not apply.

That Article 19 should be further amended with the addition of a new subparagraph, possibly “Article 19(4C).”

Draft Article 19(4C) should provide to the effect that items which the deceased is wearing on their person at the time of their death may remain on their person for burial or cremation where the deceased prior to death has made such a request of a States of Jersey employee who provides care to that person in the course of their duties or providers or managers of regulated services or such items are found on the deceased at the time of their death and there is no reason apparent the States of Jersey employees caring for that person, a provider or manager of regulated services nor the funeral director to suggest that they should be removed, so long as they are acting in good faith.

Third parties may also request the same (i.e. that such items shall remain on the deceased for burial or cremation) if he or she can show reasonable cause as to why those items should be buried or cremated with the deceased.

The right for relevant movable estate to remain on the person of the deceased shall require the person so applying to sign a new standard form to be added to the Probate (General) Rules 1998. Where these requirements are met, Article 19(1) shall not apply.

Article 21: Protection for person releasing movable estate without a grant

Policy aim:

Article 21 of the 1998 Law already makes provision in relation to persons who, in the context of individuals of non-Jersey domicile, release movable estate without a grant of probate or administration. Accordingly, its scope would need to be extended to cover persons who released relevant movable estate under the new provisions.

Amendment would also be required to the effect that where relevant movable estate was the subject of an application to the Receiver General for it to be admitted as bona vacantia, the person releasing the movable estate should be protected and saved harmless from any action brought on behalf of the estate of the deceased person or by any beneficiary of the estate provided the person doing so had acted in good faith.

Instruction:

That Article 21(1) should be amended so that it applies where a person releases property under the existing exemption or under the new exemption applying to the property of deceased persons domiciled in Jersey.

The Law Draftsman is instructed that the exemption in Article 21(1) should not apply where property is released to the Receiver General on the basis that it is admitted as bona vacantia.

That Article 21(3)(a) should be amended to reflect that a person to whom the estate is released might provide either or both evidence of that person’s entitlement as shall be prescribed and/or an indemnity.

The Law Draftsman is instructed to amend Article 21 to add a new provision providing protection for persons releasing movable estate without a grant to the Receiver General.

This new provision should provide that where movable estate is admitted to the office of the Receiver General, the person who releases the movable estate in that person’s possession shall be protected and saved harmless in respect of that act from any action brought on behalf of the estate of the deceased person, or by any beneficiary of the estate, if that person has acted in good faith.

Further, the Law Draftsman is instructed to amend Article 21 to add a new provision which applies to those releasing relevant movable estate for safe-keeping or objects for burial with the deceased which they were wearing on their person at the time of their death where they shall be protected and saved harmless in respect of that act from any action brought on behalf of the estate of the deceased person, or by any beneficiary of the estate, if that person has acted in good faith.

Article 23: Penalty for intermeddling

Policy aim:

Article 23 of the 1998 Law provides that it is an offence for any person to take possession of or administer any part of the movable estate of a deceased person without having first obtained a grant of probate or administration. Article 23 provides that it does not apply where a person releases property pursuant to Article 19(3) (as described above).

If the 1998 Law is amended as described above to accommodate (i) a further small estates exemption; (ii) the ability to pass property over for safe-keeping; (iii) that items worn on the person of the deceased at their death may be buried or cremated with them; and (iv) applications to the Receiver General may be made to admit certain movable estate as bona vacantia; then Article 23(1) will require amendment to extend the existing exception to cover these further categories.

Instruction:

The Law Draftsman is instructed to amend Article 23(1) so as to include those acting in accordance with the new small estates exemption and categories relating to safe-keeping and objects retained on the person of a deceased for burial or cremation, as it is does already for those acting in accordance with Article 19(3). The effect here is that those acting in accordance with Article 19(3) and the new provisions shall not commit the offence of intermeddling.

New Article: Orders

Policy aim:

It is desirable that the new small estates exemption, as well as the exemption for persons not domiciled in Jersey, should be capable of amendment by Ministerial Order.

Instruction:

That a new Article might be inserted into the Law to the effect that the Minister may by Order make provision to (i) specify the amount of the small estates exemption; and (ii) specify the amount under Article 19(2).

New Article: Application to the Crown

Policy aim:

As mentioned above, some uncertainty has surrounded the application of the Law to the Crown. It is suggested that specific provision should be made in the 1998 Law to the effect that the Receiver General may administer unclaimed movable estates but without the need of a grant in order to do so.

It may be desirable to also make clear that any contravention by the Crown of the 1998 Law provisions as to intermeddling will not have the effect of making the Crown criminally liable.

However, it should be provided that the Royal Court would be empowered, on the application of the Attorney General, to declare unlawful an act or omission of the Crown that contravenes the 1998 Law.

Instruction:

That a new Article might be inserted into the Law to the effect that the Receiver General may administer unclaimed movable estates in any way consistent with law or custom and that, except as otherwise provided by the new Article, the 1998 Law will bind the Crown.

Provision should be added to the effect that a contravention by the Crown of the 1998 Law will not make the Crown criminally liable. However, it should also be provided that the Royal Court may declare unlawful an act or omission of the Crown.

It should further be provided that the 1998 Law applies to persons in the public service of the Crown as it does to other persons.

It should further be provided that the 1998 Law does not apply to Her Majesty in her private capacity.

[END]