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