ROYAL COURT OF
JERSEY
RC20/05
Guide for the attestation of documents for Probate and the
execution of wills under the Covid-19 (Signing of Instruments) (Jersey)
Regulations 2020 (“the Signing Regulations”)
1. Following the adoption of the Signing
Regulations by the States Assembly on the 22nd April 2020, the
manner in which some documents are capable of being executed, witnessed and
sworn has been altered to facilitate compliance with the social distancing
requirement issued by the States of Jersey in response to the Covid-19
pandemic. These include:
a) Applications for a Grant of Probate under Rule
2 of the Probate (General) Rules 1998
b) Application for Letters of Administration under
Rule 3 of the Probate (General) Rules 1998
c) Documents required for the renunciation,
disclaimer, certificate or other such document as may be required by the
Greffier under Rule 10(1) of the Probate (General) Rules 1998
d) Wills of movable and immovable estate where the
testator cannot execute the will in the physical presence of one or more of the
witnesses.
2. In order to provide for uniformity in the
manner in which parties execute the written declaration required under Rules
3(4) and Rule 4 of the Signing Regulations and Article 17B(3) or (4) of the Wills
and Successions (Jersey) Law 1993, all parties are required to utilise the
form of written declaration attached to this Practice Direction at Appendix A.
3.
Rule 2 of the Signing Regulations
details the process for swearing of an oath and probate applications via an
audio-visual link when the application in made with the assistance and
representation of an Advocate or Solicitor. Any Advocate of Solicitor
instructed in this manner is required to appear by audio-visual link together
with the applicant, and this to ensure compliance with Rule 2 of the Probate
(General) (Jersey) Rules 1998, which mandates that the applicant and the
lawyer shall appear together before the Greffier when making the application.
4. Rule 2(2)(a) of the Signing Regulations state that
“any documents required to be produced
under Rule 2(1) or (2) or 3(1) or (2) must be delivered to the Greffier for the
Greffier’s review not less than 3 working days before the application is made”.
Where an application is being made for a Grant of Probate under Rules 2(1) and
(2) the original will or authenticated copy of a will that has been proved in
probate proceedings in another jurisdiction must be retained by the
executor/attorney executor so that this may be signed via the audio-visual link
at the same time as the oath. The process for signing the will shall
follow the same process set out at Rules 2(3) and 2(4)(a).
5. It remains permissible, only where a client
applicant does not have access to audio-visual equipment, for the client
applicant and instructed lawyer to appear personally before the Greffier in the
usual way. In those circumstances, arrangements will be made for appropriate
social distancing to be maintained. Documents in support of such applications
must be filed with the Greffier at least 3 working days in advance of the appointment.
6. Rule 3 of the Signing Regulations provides for the
attestation of probate documents via an audio-visual link. Under the rule, the
attester must provide a written declaration to the Greffier within 14 days of
witnessing the document. It is not a requirement that the attester need sign
the probate document. The written declaration will stand as evidence of the
appropriate witnessing of the probate document in question.
7. Rule 4 of the Signing Regulations provides for
the witnessing of wills via an audio-visual link. Under the rule, it is not a
requirement for the witness (es) to sign the will as the intention of the
Signing Regulations is to make the written declaration stand as the evidence of
the correct execution and witnessing of the will.
8.
Members
of the profession are reminded that the Signing Regulations have been
implemented to facilitate the execution of probate and testamentary documents
at a time when the usual physical attendance with clients is not available. Whilst the Court believes that the provisions
set out in the Signing Regulations make for robust procedure, there remains the
possibility that the lack of face to face contact may lead to a heightening in
concerns regarding any assessment of the capacity of the testator to execute
the will or whether the contents of the instrument constitute the true
intentions of the testator (i.e. that the testator has been subjected to duress
or coercion by a third party). The
profession is reminded to be especially conscious of ensuring that when
attesting to the execution of probate and testamentary documents via
audio-visual link, appropriate checks have been carried out to ensure the
efficacy of the document in question.
This Practice Direction will come into force
with immediate effect.
Appendix
A – Written Declaration
Written declaration required under Regulations 3 or
4 the Covid 19 (Signing of Instruments) (Jersey) Regulations 2020
Remote
witnessing the execution of documents under Rule 10 of the Probate (General)
Rules 1998 and remote witnessing Wills of Movable and Immovable estate
I
[
], [Advocate]/[Solicitor], of
[
] certify as follows:
1.
On
[time and date] I was asked by a person [known to me as/ who identified
themselves to me as] [ deponent’s name appearing in the executed document]
(“the deponent”) to witness that person’s [signature/mark] on a document
described to me as [for example: will of movable estate].
2.
Due to
the mandatory isolation requirements and restrictions on movement resulting
from the Covid-19 (Restricted Movement) (Jersey) Order 2020 made by the
Minister for Health on 29th March 2020, I was not present with the deponent
when I was asked to witness that person’s [signature/mark] on their
[will/document].
3.
I
attended to a form of attestation adopting the following procedure:
[For example …]
(a)
The
deponent and I met by audio-visual link at [eg 10am on Tuesday 31 March 2020].
The audio-visual link system we used was [eg Zoom/Skype];
(b)
I
asked the deponent to identify him/herself to me by name and to hold up to the
camera his/her photograph and personal identification page from his/her
passport. I observed the [eg passport/driver’s licence] and satisfied myself
that the person in the photograph was the person meeting with me by [eg
Zoom/Skype];
[Alternatively, I know
the deponent because [eg they are a regular client of mine and have been for
the last 10 years.]
(c)
I
asked the deponent to expose to the camera the document intended to be
[attested/witnessed] including the [description of document] itself. I observed
the document to be the unsigned [will/document etc] of the [deponent].
(d)
[(If
the document is a will of immovable estate) I read the will aloud/I heard the
will read aloud in its entirety to the deponent and to [full name] who was
acting as a further witness.]
(e)
I then
watched the deponent place the document down on a desk in view of the camera
and I witnessed the deponent signing the jurat page [and initialling each
preceding page]. The deponent held [each page of] the signed [or initialled]
document up to the camera. I then asked the deponent to scan the document and
send it to me. I received it at [time and date];
(f)
I was
satisfied that this was the same document that I had seen the deponent sign, as
far as it was possible for me to do so by following these procedures.
4.
I am
unaware of any circumstances to show either that:
(a)
The deponent was not
the person identified to me; or
(b)
The
signature on the document was not the deponent’s signature.
Signed:
………………………………….. Advocate/ Solicitor
Dated:
……………………………………