Wills, LPAs and Probate, the Differences Between Jersey and English Law
1st June 2021
Wills, LPAs and probate - the differences between Jersey and English law
Although Jersey is similar in many ways to the UK it is a separate jurisdiction with its own laws. Much of Jersey succession law has evolved from archaic Norman customary law in contrast to English common law. This can lead to unanticipated consequences in succession matters which may not be obvious and often do not make sense from an English law perspective. It is important that advice is taken in Jersey as there can be a number of traps for the unwary.
Jersey Wills are commonly prepared separately for immovable and movable property. This is because Jersey immovable property vests directly in the deceased’s heirs at law on death until such time that his or her Will is registered at the Public Registry. Importantly, no Executor is appointed to prove the Will. If a minor child is likely to inherit a tuteur is usually nominated in the Will.
In order for a Will of Jersey immovable property to be formally valid it must also be read aloud to the testator by a Jersey qualified advocate when it is being signed. It may come as a surprise to many but trusts of land situate in Jersey are not recognised by Jersey law. Instead, owners of land in Jersey have property rights similar to French law concepts, such as an usufruit and nue-propriété, instead of legal and beneficial interests.
A Will dealing with movable assets will require an Executor to be nominated who will later prove the Will and obtain a Jersey Grant of Probate.
Where a non-domiciled client holds shares, investments or cash in Jersey it is usually a good idea to have a separate Jersey Will. This is because a ring-fenced Jersey Will may be admitted to probate in Jersey before the issuance of a foreign grant, succession certificate or order from a competent authority in the jurisdiction where the deceased died domiciled. This can be especially useful where funds held in Jersey may be required to help pay inheritance or succession tax in a foreign jurisdiction before the foreign order is issued. Where the Will has not been limited in scope the Court will usually require a foreign order confirming who is entitled to administer the estate before it will issue a Jersey Grant of Probate.
A foreign Will is likely to be recognised as being valid to obtain a Jersey Grant if it is made in accordance with Art 29 of the Probate (Jersey) Law 1998. This essentially contains the same provisions set out in the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.
Jersey law will usually respect foreign forced heirship and reduce a Will accordingly. In fact, Jersey has its own form of forced heirship known as légitime and dower which provides fixed succession rights for children and spouses which can be claimed within a certain period after death. There is no equivalent legislation to the Inheritance (Provision for Family and Dependants) Act 1975 in Jersey. Therefore, the Court has no discretion to make an award for reasonable financial provision to step-children or partners who were not married or in a civil partnership.
The application for a Jersey Grant of Probate must be made in person. This can lead to issues where an Executor is unable to travel to Jersey. Usually a Will appoints a local Executor, or the named Executor will grant power of attorney to a Jersey law firm to obtain probate on their behalf.
A Grant of Probate must be obtained where the value of the Jersey movable estate of a non-domiciled person is more than £10,000. Any attempt to intermeddle is a criminal offence in Jersey.
Although inheritance tax is not levied, stamp duty is payable at a rate of approximately 0.5 – 0.75% up to a maximum value of £100,000. This must be paid at the same time the application for a Grant of Probate is made.
There is no method to re-seal a foreign Grant of Probate. However, for estates of individuals dying domiciled in any part of the British Isles there is a fast track method which allows an Executor to make a postal application for Probate. That said it is still necessary for a local Jersey agent to submit the application.
Lasting Powers of Attorney
LPAs have only been available in Jersey since 2018. The good news is that an English LPA can now be quickly registered in Jersey so it can be recognised as being valid and take the same effect as a local Jersey LPA. There is a Court fee of £120 to register a foreign LPA.
About the author
Simon Lofthouse is Head of Private Client at Jersey law firm Corbett Le Quesne. He is a cross border succession specialist and holds the STEP Cross Border Estates qualification for which he achieved the highest mark worldwide in any STEP examination.
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