Trust Estate

EXPERT VIEW: International Wills, Probate And Succession In Jersey

Donna Withers, Hawksford , Probate Manager, May 23, 2013

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The following article about probate, wills and succession issues in Jersey is by Donna Withers, of Hawksford.

Editor’s note: The following
article about probate, wills and succession issues in Jersey
is by Donna Withers, probate manager at Hawksford, the trust company. This publication is grateful for the
opportunity to carry this article.

Jersey has developed a substantial
international finance industry over the past 40 years and with the passing of
time inevitably issues of cross-border probate have come to the fore. Many
practitioners on the island, as well as the Probate Registry, find that work in
non-Jersey domiciliary deceased estates heavily outweigh the Jersey
domiciled estate work. This article will briefly examine international issues of
wills, probate and succession in Jersey and we will also have a glimpse at some
of the differences between succession in Jersey and England
& Wales.

Will and estate planning in Jersey

Similar to the position in England & Wales,
Jersey law differentiates between immovable
property and movable property. Devolution of immovable property is governed by
the lex situs.  Therefore, no choice of law is available and
such a will covering Jersey situs immovable
estate must conform with the legal formalities of the island. 

Movable property is governed by the lex domicilii with the concept of
domicile also being broadly similar to that in England
& Wales.
In relation to movables, a will shall be valid if execution conforms to the
internal law where it was executed, where the testator was domiciled,
habitually resident or of which the testator was a national. Jersey Probate law
goes even further whereby even if a will is not valid in accordance with any of
the requirements outlined in the preceding sentence, it will still be valid in
respect of Jersey situs movables if it executed in accordance with Jersey law, regardless of the personal law of the
deceased. This “sweep up” provision gives enormous flexibility to testators
with assets on the Island and simplifies the probate process by reducing the
need for affidavit evidence as to the law in relation to formal validity in the
deceased’s personal law jurisdiction, lowering costs and demonstrating Jersey’s
capability in international legal affairs. Notwithstanding the choice of law in
respect of movables, a will may be challenged in the Jersey
courts on the basis of its essential validity, for example, if it does not
conform to forced heirship provisions in the country of domicile.  

Therefore, a testator with Jersey
movable estate has a choice as to whether or not to include his Jersey assets
in a multi-jurisdictional will or if he would prefer a separate Jersey will. This should be considered on a case by case
basis. There is a strong case for minimising the number of wills due to the
risk of inadvertent revocation. The availability of the Jersey
“fast track” probate procedure (see further below) adds weight to the case
against many wills. 

However, there are circumstances
where it may be helpful to have a number of wills. It may expedite the probate
process depending on the various locations involved: a Jersey
will can proceed to probate without having to wait for probate in another
jurisdiction. It may also make administration more efficient as the will is
restricted to a smaller more ascertainable group of assets. Forced heirship under a testator’s personal
law may be circumvented (however the estate may be open to challenge by the
legal heirs). The testator may be afforded greater privacy with the contents of
their Jersey Will becoming public documents only on the Island
and not elsewhere as would a multi-jurisdictional will.     

Jersey Probate for non-domiciliaries

If a person dies domiciled outside
Jersey, owning movable assets in Jersey with a
probate value exceeding £10,000 ($15,146), a Jersey Grant must be obtained.
Where the value of the assets is less than £10,000, it is left to the asset
holder’s discretion whether they insist on a Jersey Grant being obtained. To
obtain a Jersey Grant, the Royal Court of Jersey require the following:

·        
A Court sealed and certified copy of the
original grant and will issued by the probate court in the deceased’s country
of domicile.

·        
An
original or certified copy of the death certificate.

·        
If
any of the above documents are in a foreign language, an official translation
of each document into English is required.

·        
Confirmation
of the net value of the movable assets in Jersey
as at the date of death.

·        
The
probate court fee and stamp duty, both of which are calculated on the net value
of the estate in Jersey.

·        
The
executor/administrator must attend the Royal Court in person to take the oath. Many
executors/administrators of non-domiciliary estates will give a power of
attorney to an agent on the Island for this
reason.

·        
An
affidavit of foreign law, provided by a lawyer practising in the deceased’s
country of domicile may, in some cases, also be required. For example where:

o       
a
grant will not be issued in the deceased’s country of domicile; or

o       
the
will or foreign grant does not appoint an executor; or

o       
the
deceased died intestate.

Where a deceased
person dies domiciled in England and Wales, Scotland, Northern Ireland, Guernsey
or the Isle of Man and a grant has been issued in the deceased’s country of
domicile, there is a “fast track” system available. In such cases, the
documents required are more straightforward.

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