Probate (Jersey)
Law 1998
A LAW to consolidate and further amend the law
relating to grants of probate and letters of administration, the administration
and distribution of the estate of deceased persons and ancillary matters
Commencement
[see
endnotes]
PART 1
PRELIMINARY
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“1993 Law” means the Wills and Successions
(Jersey) Law 1993;
“administration” means letters of administration of the
movable estate of a deceased person;
“advocate” means advocate of the Court;
“caveator” means a person by or on whose behalf a caveat
is lodged;
“Court” means the Royal Court;
“enactment” includes an enactment of the United Kingdom
registered in the Court;
“executor dative” means an executor other than an
executor nominate;
“executor nominate” means an
executor named in the will of a deceased person and includes the attorney of
the executor specially appointed by the executor as such, and the guardian of
the executor;
“grant” means a grant of probate or administration;
“Inferior Number” means the Inferior Number of the Court;
“movable estate” means personal or movable property;
“prescribed” means prescribed by rules of court;
“specified” means specified in Regulations made by the States;
“state” means a territory or group of territories having
its own law of nationality;
“testamentary cause or matter” includes all causes or
matters relating to the grant or revocation of probate or administration, to
the revocation (cassation et annulation) of a
will and to the reduction of a will ad legitimum modum;
“trust corporation” means an association incorporated by
enactment of the States or a company registered under the law governing the
registration in Jersey of companies with limited liability, being an association or company which is –
(a) empowered
by its constitution to undertake the business of acting as executor and
administrator; and
(b) authorized
by Act of the Court to apply for grants;
“will” means a will of movable estate (whether or not any real or immovable estate is devised by
the will) and includes any testamentary instrument of which probate may be
granted.
(2) Unless the context
otherwise requires, a reference in this Law to an enactment is a reference to
that enactment as amended from time to time, and
includes a reference to that enactment as extended or applied by or under
another enactment including any other provision of that enactment.
2 Jurisdiction of the
Court
(1) The Court shall have
all jurisdiction in relation to probates and administrations as it had
immediately before this Law came into force, that is to say,
jurisdiction –
(a) in
relation to the grant or revocation of probate and administration of the
movable estate of deceased persons, including jurisdiction to make a grant in
respect of a deceased person notwithstanding that the deceased person leaves no
estate, and to make a grant of administration of the effects of a deceased person
who dies leaving direct heirs who survive the deceased person; and
(b) to
hear and determine all questions relating to a testamentary cause or matter.
(2) The Court shall, in the
exercise of the jurisdiction conferred by paragraph (1), perform all such
like duties with respect to the estates of deceased persons as it performed
immediately before this Law came into force in relation to the matters in which
it has jurisdiction.
(3) The jurisdiction conferred and duties imposed on the Court by this Article
shall be exercised in the Probate division.
(4) The jurisdiction conferred and duties imposed on the Court by this Article
shall, so far as regards procedure and practice, be exercised in the manner
provided by and under this Law or, where no provision is made, in the manner
which has previously been customary.
3 The Bailiff, Jurats and
officers of the Court
Subject to this Law and
to rules of court, the Bailiff, Jurats, Attorney General, Solicitor General,
Viscount and Judicial Greffier shall perform duties in the Probate division of
the Court analogous to those performed by them respectively in the Samedi
division of the Court.
4 Power of the Court as to
witnesses and documents
(1) In the exercise of the
jurisdiction conferred on it by Article 2, the Court may –
(a) order
to appear before it any person whom it may think fit to examine;
(b) examine
any person upon oath or affirmation, as the case may require;
(c) before,
after or without examination, receive any affidavit or affirmation given by any
person;
(d) order
any person to produce and bring into court or otherwise as the Court may
direct, any deeds, evidences, paper or writings as it
may think proper which are in the person’s possession, custody or
control; and
(e) order
a person it has reasonable grounds for believing has knowledge of any paper or
writing being or purporting to be testamentary to attend for the purpose of
being examined respecting the same.
(2) Any person who disobeys
an order under paragraph (1) shall be guilty of contempt of court.
5 Power and rôle of
Judicial Greffier
(1) The Judicial Greffier
shall have full power to administer oaths for the purposes of this Law.
(2) In the authentication
of grants, orders and other instruments, and of copies
of such documents, the Judicial Greffier may describe himself or herself as
Registrar.
PART 2
GRANTS OF PROBATE AND
ADMINISTRATION
6 Application for and
making of grant
(1) An application for a
grant shall be made to the Judicial Greffier.
(2) An application may be
made through an advocate or solicitor or in person by persons claiming to be
entitled to a grant.
(3) A grant shall be made
by the Judicial Greffier in the name of the Royal Court (Probate division)
under the seal of the Probate division.
(4) A grant shall have
effect over the movable estate of the deceased person.
(5) Subject to paragraphs (7)
and (13), the Judicial Greffier shall not make a grant until all the enquiries
which the Judicial Greffier may see fit to institute in relation to the
application have been answered to the Judicial Greffier’s satisfaction.
(6) In the exercise of the
Judicial Greffier’s duties under paragraph (5), the Judicial
Greffier shall afford as great facilities for the obtaining of grants as are
consistent with a due regard to the prevention of error or fraud.
(7) Where a deceased person
dies domiciled in a specified jurisdiction, the Judicial Greffier may make a
grant without making any enquiries under paragraph (5), upon an
application being made in such manner and with such supportive evidence as
shall be prescribed.
(8) Subject to paragraph (13),
no grant shall be made by the Judicial Greffier –
(a) in
any case where there is contention, until the contention is disposed of; or
(b) in
any case where the Judicial Greffier is required to present a statement under paragraph (9),
without the directions of the Inferior Number to so proceed.
(9) Subject to paragraph (13),
the Judicial Greffier shall present a statement to the Bailiff for the
directions of the Inferior Number in any case –
(a) where
it appears doubtful to the Judicial Greffier whether or not
a grant should be made; or
(b) where
any question arises in relation to an application for a grant.
(10) Where a statement is
presented, the Inferior Number may –
(a) direct
the Judicial Greffier to proceed with the matter in accordance with such
instructions as it thinks necessary; or
(b) forbid
any further action by the Judicial Greffier in relation to the matter.
(11) Where the Inferior Number
forbids any further action by the Judicial Greffier in relation to the matter,
the person applying for the grant may apply to the Inferior Number.
(12) Upon an application made
under paragraph (11), the Inferior Number may order such persons to be
convened, such evidence taken and such enquiries made
as it considers necessary and may make such order as the circumstances require.
(13) The Judicial Greffier may,
without making any enquiries under paragraph (5) and notwithstanding paragraphs (8)
and (9), grant probate or administration where all the parties who, in the
Judicial Greffier’s opinion should be consulted, consent to the making of
the grant.
7 Evidence of death
(1) An applicant for a
grant shall provide the Judicial Greffier with a certificate of the death of
the deceased person to whom the application relates, or such other evidence of
the death as the Judicial Greffier may approve.
(2) Where the applicant is
unable to provide such evidence as aforesaid, the Judicial Greffier shall
present a statement of the matter to the Bailiff for the directions of the
Inferior Number.
(3) The Inferior Number
shall –
(a) order
the applicant to be convened and hear such evidence of the death as the
applicant produces; and
(b) order
such other persons to be convened, such additional evidence to be heard and
such enquiries made as it considers necessary.
(4) If the Inferior Number
is satisfied that the death of the person to whom the application relates may
be presumed beyond all reasonable doubt to have occurred on or after a certain
date, it may make a declaration to that effect and such order as the
circumstances require.
(5) A declaration made
under paragraph (4) shall be –
(a) received
in any proceedings as evidence of the death of the person to whom it relates;
and
(b) deemed
to be proof of the death, unless cause to the contrary is shown.
8 Oath of executor or
administrator
Every executor or
administrator shall, before the making of a grant, make an oath in such form as
may be prescribed.
9 Caveats
(1) Any person having an
interest in the movable estate of a deceased person and intending to oppose the
making of a grant may lodge a caveat with the Judicial Greffier.
(2) A caveat shall be in
such form as may be prescribed and may be lodged through an advocate or
solicitor or in person.
(3) A caveat shall have
effect from the day on which it is lodged and remain in effect until whichever
is the earlier of –
(a) its
withdrawal by the caveator;
(b) its
clearing off pursuant to an order of the Inferior Number;
(c) the
determination by judgment or order of the Inferior Number of the matter in
dispute between the parties; or
(d) subject
to paragraph (5) of this Article and Article 10(3), the expiry of the
period of 6 months beginning on the day it is lodged.
(4) Subject to Article 10(4),
where a caveat has effect, no grant shall be made in the estate to which it
relates.
(5) A caveat may be renewed
by the caveator.
(6) A caveat may be
withdrawn by the caveator.
10 Proceedings consequent
on caveats
(1) Any person whose
application for a grant has been stopped by a caveat may serve a summons upon
the caveator, in such manner as may be prescribed, calling upon the caveator to
appear before the Inferior Number to show cause why the caveat should not be
cleared off.
(2) If the caveator does
not appear in answer to the summons, the Inferior Number may –
(a) order
the caveat to be cleared off; and
(b) make
such other order as the circumstances of the case may require.
(3) If the caveator appears
in answer to the summons, the Inferior Number may order that, until the matter
in dispute between the parties has been determined by judgment or order, the
caveat shall remain in effect.
(4) Where the Inferior
Number makes an order under paragraph (3), it may also –
(a) place
the estate of the deceased person in the possession of the Viscount or some
other person pursuant to Article 15; or
(b) authorize
the Judicial Greffier to make a grant to such person and limited in such manner
(if any) as it directs.
(5) Where a caveator
appearing in answer to a summons contests the validity of a testamentary
instrument of the deceased person in relation to whose movable estate the
caveat was lodged, the Inferior Number shall determine the question of the
validity or invalidity, in whole or in part, of that instrument in the same
manner mutatis mutandis as if it were hearing
an action for the setting aside (cassation et
annulation) of a will of movable estate.
(6) If the Inferior Number
determines that a testamentary instrument is wholly or partially valid it
shall –
(a) pronounce
for the validity of the whole or part of the instrument; and
(b) authorize
the Judicial Greffier to grant probate to such person as is found by it to be
entitled to the grant.
(7) If the Inferior Number
determines that a testamentary instrument is invalid it shall –
(a) pronounce
against the validity of the instrument; and
(b) authorize
the Judicial Greffier to grant probate of a valid testamentary instrument or,
if as a result of the proceedings there is an
intestacy, to grant administration, in either case the grant to be to such person
as is found by the Inferior Number to be entitled to it.
(8) Where a caveator
appearing in answer to a summons contests the right of the person who has
applied for a grant to obtain such grant and alleges a prior right in himself
or herself or some other person, the Inferior Number shall determine who is
entitled to the grant and authorize the Judicial Greffier to make a grant to
that person.
(9) Where a caveator
appearing in answer to a summons raises an objection to the making of a grant
other than an objection to which paragraph (5) or (8) applies, the
Inferior Number shall hear the objection and make such order as the
circumstances may require.
(10) Any order made under this Article
may include an order for the payment of damages.
11 Grant to a trust
corporation
(1) The Judicial Greffier
may –
(a) where
a trust corporation is named in a will as executor, whether alone or jointly
with another person, grant probate to the corporation, either solely or jointly
with another person, as the case may be;
(b) grant
probate to a trust corporation as executor dative, either solely or jointly
with another person; and
(c) grant
administration to a trust corporation, either solely or jointly with another person.
(2) Probate or
administration shall not be granted to a nominee on behalf of a trust
corporation.
(3) Any officer authorized
for the purpose by a trust corporation or its
directors or governing body may, on behalf of the corporation, swear affidavits
or do any other act or thing which the Judicial Greffier may require with a
view to the making of a grant to the corporation, and the acts of an officer so
authorized shall be binding on the corporation.
(4) Where any association
or company which is not incorporated or registered in Jersey is named in a will
as executor, whether alone or jointly with another person, nothing in this Article
shall restrict the power of the Judicial Greffier under Article 12 to
grant probate to the attorney of such association or company specially
appointed by it for the purpose.
12 Grant to attorney
(1) Where a person entitled
to a grant in relation to the movable estate of a deceased person appoints an
attorney specially for the purpose, the Judicial Greffier may make the grant to
the attorney.
(2) A grant made pursuant
to paragraph (1) shall be made to the attorney personally.
13 Grant to executor dative
(1) Where a person dies
leaving a will without having named an executor who is willing and competent to
take probate, it shall be granted to an executor dative.
(2) Where a person dies
leaving a will having named an executor who is willing and competent to take
probate but the Judicial Greffier considers, on exceptional grounds, that it
may not be appropriate for that person to take the grant, the Judicial Greffier
may refer the matter to the Inferior Number.
(3) Where a matter is
referred to it under paragraph (2), the Inferior Number may, on
exceptional grounds, name a person, other than the person named as executor in
the will, as entitled to a grant as executor dative, and authorize the Judicial
Greffier to make such a grant to the person.
(4) Where probate is
granted to an executor dative, the will of the deceased person shall be
performed and observed in the same manner as if probate had been granted to an
executor nominate.
14 Entitlement to grant as
administrator or executor dative
(1) This Article applies
where a person dies –
(a) wholly
intestate as to the person’s movable estate; or
(b) leaving
a will without having named an executor who is willing and competent to take
probate.
(2) Subject to paragraphs (3),
(5) and (6), where the person dies leaving a spouse, or a civil partner, as the case may be, the spouse or civil partner shall be
the person entitled to the grant.[1]
(3) Subject to paragraphs (5)
and (6), where the person dies leaving a spouse or civil partner in the
circumstances described in Article 8(1)(a) and (b) of the 1993 Law,
the person entitled to the grant shall be the person who would have been so
entitled according to customary law if the spouse or civil partner had died
before the deceased.[2]
(4) Subject to paragraphs (5)
and (6), where the person dies without leaving a spouse or civil partner, the person
entitled to the grant shall be such person as may be specified or, if none, the
person so entitled according to customary law.[3]
(5) Subject to any
authorization under paragraph (6), where, in any case to which this Article
applies, it appears to the Judicial Greffier to be necessary or convenient by
reason of any special circumstance to make a grant to some person other than
the person entitled to the grant, the Judicial Greffier –
(a) shall
not be obliged to make a grant to the person entitled; and
(b) may
make a grant to such person and limited in such manner as the Judicial Greffier thinks fit.
(6) Where, in any case to
which this Article applies, it appears to the Inferior Number to be necessary
or convenient by reason of any special circumstance, that a grant should be
made to some person other than the person entitled to the grant, it may
authorize the Judicial Greffier –
(a) not
to make a grant to the person entitled; and
(b) to
make a grant to such person and limited in such manner as it thinks fit.
(7) In this Article,
“grant” means a grant as administrator of the deceased person’s
movable estate or as executor dative, as the case may require.
15 Viscount or other person
in possession pendente lite
(1) The Inferior Number may
place the estate of a deceased person in the possession of the Viscount or some
other person where –
(a) any
legal proceedings touching the validity of the will of the deceased person or
for obtaining, recalling or revoking any grant are
pending; or
(b) the
Judicial Greffier presents a statement to the Bailiff for the directions of the
Inferior Number under Article 6(9).
(2) The Viscount or other person
in possession of the estate shall act under the direction of the Inferior
Number.
16 Revocation of grant by
consent
The Judicial Greffier
may revoke a grant where all the parties who, in the
Judicial Greffier’s opinion, should be
consulted, consent to the revocation.
17 Removal of executor or
administrator
(1) The Attorney General or
any person with an interest in the movable estate of a deceased person may
apply to the Inferior Number on exceptional grounds for an order that an
executor or administrator be removed from office.
(2) If the Inferior Number
makes an order removing an executor or administrator from office, it shall at
the same time name another person to be executor or administrator in their place, and authorize the Judicial Greffier to make a grant
to that person.
18 Second and subsequent grants
(1) If any person to whom a
grant has been made, either solely or jointly with another person, dies,
becomes incapacitated or bankrupt leaving a part of the movable estate of the
deceased person unadministered, the Judicial Greffier may make a grant to some
other person to act in the person’s place.
(2) If any person to whom a
grant has been made wishes to retire, the Judicial Greffier may make a grant to
another person to act in the person’s place.
(3) If any person to whom a
grant has been made wishes an additional person to be appointed to act together
with the person, the Judicial Greffier may make a grant to that person.
(4) In paragraph (1),
the reference to a person becoming bankrupt includes a person becoming the
subject of insolvency proceedings of a similar nature to bankruptcy in any
place outside Jersey.
(5) This Law applies,
subject to rules of court, mutatis mutandis
to second and subsequent grants as it applies to original grants.
PART 3
RECOVERY AND
DISTRIBUTION OF ESTATE
19 Necessity for production
of grant
(1) Subject to paragraphs (2)
to (5), and save as otherwise provided by any other enactment, the production
of a grant shall be necessary to establish the right to recover or receive any part
of the movable estate situated in Jersey of any deceased person.
(2) Paragraph (1)
shall not apply to a person in Jersey who holds any movable estate situated in Jersey
and forming a part or the whole of the estate so situated of a deceased person
who died domiciled in any territory outside Jersey where the value of the
movable estate held by that person does not exceed £10,000 or such other
amount as may be specified.
(3) Subject to paragraph (4),
a person in possession of any such movable estate as is described in paragraph (2)
may, on the application of any person, release that movable estate to such person
who 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 relating to intestate
succession in force in the place in which the deceased person was domiciled at
death.
(4) A person in possession
of any such movable estate as is described in paragraph (2) shall not
release the movable estate or any part of it before the person making the
application under paragraph (3) 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
(b) such
security, in such form and amount (not exceeding the value of the movable
estate to which the application relates) as he or she may require.
(5) Nothing in this Article
shall affect any liability of a person who releases any movable estate to
account to any other person for that movable estate.
(6) Any person who in, or
in connection with, any application under this Article makes any statement
which is false in any material particular or in the truth of which the person
does not believe shall be guilty of an offence and liable to a fine or to
imprisonment for a term not exceeding 12 months or to both.
20 Protection for person
releasing movable estate under grant
Any person acting in
good faith who releases or permits the release of any movable estate upon any
grant made under authority of this Law 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, notwithstanding any defect
or circumstance whatsoever affecting the validity of the grant.
21 Protection for person
releasing movable estate without grant
(1) This Article applies to
a person holding movable estate in the circumstances described in Article 19(2),
where the deceased person died domiciled in a specified jurisdiction.
(2) A person to whom this Article
applies who releases movable estate in the 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 –
(a) the
person to whom the estate is released has provided him
or her with such evidence of the person’s
entitlement to receive it as shall be prescribed; and
(b) there
is no caveat in force in respect of the deceased person’s estate.
22 Release or payment under
revoked grant
(1) Any person acting in
good faith who releases or permits the release of any movable estate to any
executor or administrator upon any grant made under authority of this Law which
is subsequently revoked 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.
(2) An executor or
administrator who has acted under a grant which is subsequently revoked under
this Law may retain and reimburse himself or herself in respect of any payments
made by the executor or administrator before the revocation which the person to
whom a second or subsequent grant is made might have lawfully made.
23 Penalty for
intermeddling
(1) Subject to paragraph (2),
if any person, other than a person acting in accordance with Article 19(3)
or any other enactment, takes possession of or in any way administers any part
of the movable estate of a deceased person without obtaining a grant, the person
shall be guilty of an offence and liable to a fine or to imprisonment for a
term not exceeding 12 months or to both.
(2) No person shall be
guilty of an offence by reason only of the fact that the person has made arrangements for disposing of the body of the deceased person
in any manner authorized by law or custom or from placing in safe custody or
otherwise preserving the movable estate of the deceased.
24 Duty of executor or
administrator as to inventory
The Court may, on the
application of any person interested in the movable estate of a deceased person,
order the executor or the administrator, as the case may be,
to exhibit on oath in court a true and perfect inventory and account of
the movable estate of the deceased person.
PART 4
VARIATION AND DISCLAIMER
OF INTERESTS
25 Variation of
dispositions etc. by consent
(1) Subject to paragraph (2),
the Court may by order made with the consent of all parties who in its opinion
should be consulted and having regard only to the interests of the
beneficiaries or heirs interested in so much of the estate as is affected by
the order –
(a) vary
any disposition (whether effected by will, under the law of intestacy or
otherwise) of the movable estate of the deceased person;
(b) provide
that any variation made under sub-paragraph (a) shall have effect as if it
were a disposition effected by the will of the deceased person or under the law
of intestacy, as the case may be; and
(c) direct
to whom and in what manner the movable estate of the deceased person shall be
distributed.
(2) An order for a
variation under paragraph (1)(a) may only be made within 2 years after the
death of the deceased person.
26 Disclaimer of interest
(1) A person beneficially
entitled to an interest in the movable estate of a deceased person may, at any
time before the interest is distributed to him or her, disclaim the interest.
(2) A disclaimer shall be
made by giving notice, in such form as may be prescribed, to the Judicial
Greffier and to the executor or administrator, as the case
may be.
(3) Where notice is given
in accordance with paragraph (2), the person making the disclaimer shall
be treated as having died before the deceased person for all purposes relating
to the movable estate of the deceased person.
PART 5
MISCELLANEOUS AND
SUPPLEMENTAL
27 Deposit of and access to
wills and other documents
(1) All original wills
under the control of the Court shall be deposited and preserved in such place
as the Court may direct.
(2) Any document under the
control of the Court other than an original will shall be deposited and
preserved or otherwise dealt with in such manner as shall be prescribed.
(3) All original wills
under the control of the Court and copies of grants shall be open to
inspection.
(4) Access to any document
under the control of the Court to which paragraph (3) does not apply shall
be regulated in such manner as shall be prescribed.
28 Official copies
An official copy of the
whole or any part of a will, or an official certificate of any grant may be
obtained from the Judicial Greffier.
29 Validity of will
(1) A will shall be treated
as properly executed if, at the time of its execution or at the time of the
testator’s death, its execution conforms to –
(a) the
internal law in force –
(i) in the territory
where it was executed,
(ii) in
the territory where the testator was domiciled,
(iii) in
the territory where the testator was habitually resident, or
(iv) in a
state of which the testator was a national; or
(b) the
law of Jersey.
(2) For the purposes of
this Article, the internal law in force in a territory or state is the law
which would apply in a case where no question of the law in force in any other
territory or state arose.
30 Domicile of dependence
for probate purposes
(1) For the purposes of a
grant in and the distribution of the movable estate of a deceased person who has
at any time been married or in a civil partnership, the deceased person’s
domicile shall be ascertained by reference to the same factors as in the case
of any other individual capable of having an independent domicile.[4]
(2) For the purposes of a
grant in and the distribution of the movable estate of a deceased minor, the
deceased minor shall have first become capable of having an independent
domicile when (if at all) the deceased minor attained the age of 16 years
or married under that age.
31 Regulations
(1) The States may by Regulations
specify anything which shall or may be specified for the purposes of this Law.
(2) Regulations made under paragraph (1)
may make different provision in relation to different cases or circumstances.
32 Rules of Court
(1) The power to make rules
of court under the Royal Court (Jersey)
Law 1948 shall include a power to make rules for the purposes of this Law.
(2) The power to make rules
pursuant to paragraph (1) shall include the power to prescribe anything
which shall or may be prescribed for the purposes of this Law.
(3) [5]
33 Citation
This Law may be cited as
the Probate (Jersey) Law 1998.