Signing of Instruments (Miscellaneous Provisions) (Jersey) Law 2018

A LAW to make provision for the making of affidavits, wills and powers of attorney by persons unable to sign by reason of physical incapacity and make further provision for the witnessing of wills.

Adopted by the States                                                  6th March 2018

Sanctioned by Order of Her Majesty in Council          23rd May 2018

Registered by the Royal Court                                        1st June 2018

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

1        Loi (1851) sur les testaments d’immeubles amended

In the Loi (1851) sur les testaments d’immeubles[1] –

(a)     in Article 8, for the 4th paragraph there shall be substituted the following paragraph –

“Un des témoins devra être un témoin qualifié (‘qualified witness’) dans le sens de l’Article 17A de la loi dite Wills and Successions (Jersey) Law 1993[2].”;

(b)     in Article 11, for the words “pays; dans ces Testaments le témoin officiel devra être un Notaire.” there shall be substituted the word “pays.”.

2        Affidavits (Advocates and Solicitors) (Jersey) Law 1992 amended

After Article 1(2) of the Affidavits (Advocates and Solicitors) (Jersey) Law 1992[3] there shall be inserted the following paragraph –

“(2A) If the deponent is unable to sign the affidavit by reason of being physically incapacitated, the solicitor or advocate taking the affidavit shall endorse upon the affidavit that it has not been signed by the deponent by reason of the deponent’s physical incapacity.”.

3        Wills and Successions (Jersey) Law 1993 amended

In the Wills and Successions (Jersey) Law 1993[4], after Article 17 there shall be added the following Article –

“17A Will signed by person other than testator

(1)     Despite Articles 8 and 30 of the Loi (1851) sur les testaments d’immeubles[5] or any rule of customary law, a will of movable or immovable estate shall be valid when it has not been signed by the testator if –

(a)     the testator declared in the presence of 2 witnesses (one of whom was a qualified witness) present together that, being physically incapacitated to sign the will himself or herself, the testator wished the will to be signed by another person on the testator’s behalf;

(b)     the declaration by the testator and the date it was made are recorded on the face of the will;

(c)     the will was read aloud to the testator (or, in the case of a deaf testator, the whole contents of the will were made known to the testator by some other means) in the presence of the person signing the will on behalf of the testator and the two witnesses; and

(d)     after the will was read to the testator (or, in the case of a deaf testator, after the whole contents of the will were made known to him or her by some other means), the will was signed by some other person on the testator’s behalf in the presence of the 2 witnesses present together and the 2 witnesses put their signatures to the will, in the presence of each other and of that other person.

(2)     A person shall not be competent to sign a will on behalf of a testator unless that person has the capacity to execute a valid will of his or her own.

(3)     In this Article, ‘qualified witness’ means –

(a)     if the will is executed in Jersey, a Jurat of the Royal Court, a member of the States, an advocate, a solicitor or a notary public; or

(b)     if the will is executed outside Jersey –

(i)      one of the persons mentioned in sub-paragraph (a), or

(ii)      a judge, justice of the peace, magistrate, mayor, chief officer of any city or municipal corporation, a barrister, solicitor, a lawyer qualified under the legal system of the place of execution, a person authorized to take oaths or affidavits or the equivalent thereof by the law of Jersey or the law of the place of execution, a British consular official (or a person for the time being discharging the duties of such an official), or, if the testator is a member of the British armed forces, an officer of those forces authorized to take affidavits.

(4)     In paragraph (3)(b)(ii) –

‘barrister’ means a person who is qualified as a barrister in England and Wales or Northern Ireland or as an advocate in Scotland; and

‘solicitor’ means a solicitor of the Supreme Court of England and Wales, a solicitor of the Supreme Court of Judicature of Northern Ireland or a solicitor in Scotland.

(5)     The States may by Regulations amend paragraph (3) or (4).”.

4        Powers of Attorney (Jersey) Law 1995 amended

In the Powers of Attorney (Jersey) Law 1995[6] –

(a)     after Article 3 there shall be inserted the following Article –

“3A   Power of Attorney signed by person other than donor

(1)     Despite Articles 2(3) and 3(2), a power of attorney (including a registerable power of attorney) shall be valid when it has not been signed by the donor if –

(a)     the donor declared in the presence of a qualified witness that, being physically incapacitated to sign the power of attorney himself or herself, the donor wished the power of attorney to be signed by another person on the donor’s behalf;

(b)     the declaration by the donor and the date it was made are recorded on the face of the power of attorney;

(c)     the power of attorney was read aloud to the donor (or, in the case of a deaf donor, the whole contents of the power of attorney were made known to the donor by some other means) in the presence of the person signing the power of attorney on behalf of the donor and the qualified witness; and

(d)     after the power of attorney was read to the donor (or, in the case of a deaf donor, after the whole contents of the power of attorney were made known to him or her by some other means), it was signed by some other person on the donor’s behalf in the presence of a qualified witness and that witness put his or her signature to the power of attorney in the presence of the donor and that other person.

(2)     A person shall not be competent to sign a power of attorney on behalf of a donor unless that person has the capacity to execute a valid will of his or her own.

(3)     In this Article, ‘qualified witness’ means –

(a)     if the power of attorney is executed in Jersey, a person referred to in Article 3(2)(a); or

(b)     if the power of attorney is executed outside Jersey, a person referred to in Article 3(2)(a) or a person specified in Schedule 1.”;

(b)     in Article 9(1), for the words “ as was required for the due execution of the instrument creating that power” there shall be substituted the words “as is required for the creation of a power of attorney under this Law”.

5        Capacity and Self-Determination (Jersey) Law 2016 amended

In the Schedule to the Capacity and Self-Determination (Jersey) Law 2016[7], after paragraph 1(3), there shall be added the following sub-paragraph –

“(4)    Despite sub-paragraph (1), a LPA shall be valid when it has not been signed by P if –

(a)     P declared in the presence of a witness of a prescribed description that, being physically incapacitated to sign the LPA himself or herself, P wished the LPA to be signed by another person on P’s behalf;

(b)     the declaration by P and the date it was made are recorded on the face of the LPA;

(c)     the LPA was read aloud to P (or, in the case where P is deaf, the whole contents of the LPA were made known to P by some other means) in the presence of the person signing the LPA on behalf of P and the witness; and

(d)     after the LPA was read to P (or in the case where P is deaf, after the whole contents of the LPA were made known to him or her by some other means), it was signed by some other person on P’s behalf, in the presence of the witness and the witness put his or her signature to the LPA in the presence of P and that other person.”.

6        Citation and commencement

This Law may be cited as the Signing of Instruments (Miscellaneous Provisions) (Jersey) Law 2018 and –

(a)     Article 5 shall come into force on the later of the day upon which the Schedule to the Capacity and Self-Determination (Jersey) Law 2016[8] comes into force and the day that is 7 days after this Law is registered; and

(b)     the remainder shall come into force 7 days after this Law is registered.

l.-m. hart

Deputy Greffier of the States

 


 



[1]                                    chapter 18.800

[2]                                    chapter 04.960

[3]                                    chapter 07.105

[4]                                    chapter 04.960

[5]                                    chapter 18.800

[6]                                    chapter 04.680

[7]                                    L.30/2016

[8]                                    L.30/2016


Page Last Updated: 01 Jun 2018