Janina Porter, Senior Associate
Head of Wills and Probate
If a person dies domiciled in Jersey, Article 19(1) of the Probate (Jersey) Law 1998 (the “1998 Law”) provides that the production of a grant shall be necessary to establish the right to recover or receive any part of the deceased’s movable estate situated in Jersey. If a person dies domiciled outside Jersey, Article 19(2) of the 1998 Law provides that a grant shall be necessary in cases where the deceased’s movable estate situated in Jersey is in excess of £10,000.
Subject to a few very limited exceptions, if a person or an organisation takes possession of, or deals with the deceased’s movable estate situated in Jersey without a grant having first been obtained, then pursuant to Article 23 of the 1998 law, the person or organisation shall be liable to a fine or to imprisonment for a term not exceeding 12 months, or both.
In April 2020, Her Majesty's Attorney General (the “Attorney General”) has issued guidelines (the “Guidelines”) to clarify when it is necessary for the Registrar of Probate in Jersey to refer a case of suspected intermeddling to the Attorney General. The Guidelines also set out certain additional public interest factors with respect to the Attorney General’s Code on the decision to prosecute which are relevant to financial services businesses.
When is it necessary for the Registrar of Probate to refer a case of suspected intermeddling to the Attorney General?
The Guidelines clarified on the first hand that the presence of any of the following factors should lead to a referral:
the amount concerned is in excess of £10,000;
there are a number of persons entitled to a share of the estate and those individuals’ interests have been prejudiced by the intermeddling;
the person who has intermeddled is a member of a profession, membership of which would suggest either awareness of the requirements under the Probate (Jersey) Law 1998 (as amended) or awareness that such requirements are likely to exist;
it appears that the person who has intermeddled has acted in bad faith; and
the intermeddling has come to light through a person other than the intermeddler.
On the other hand, it specified that cases involving all of the following factors will generally not need to be referred to the Attorney General:
the amount concerned is less than £10,000;
the person who has intermeddled has acted in good faith and there is no indication that the intermeddling was a deliberate attempt to circumvent the Law;
the person who has intermeddled is the sole heir or beneficiary or if there is more than one heir or beneficiary, the others have indicated their approval either in advance or retrospectively, of the actions of the person who as intermeddled;
the person who has intermeddled is a person with no prior experience of legal matters. Those with no prior experience of legal matters cannot be expected to have the same level of knowledge about the probate process as those who have had prior experience;
there is no ground for supposing that the intermeddling was deliberately done to advance an ulterior motive, for example, to deliberately gain some advantage (financial or otherwise) or to damage the interests of a third party; and
the matter has only come to light because the person who has intermeddled has informed someone of what has happened, for example, where an executor has brought attention to their own intermeddling.
Furthermore, the Guidelines clarified that in instances where certain Officers of the States of Jersey or other financial organisations and private nursing homes intermeddle with some part of the moveable estate of a deceased person as a direct result of providing appropriate care and services to that person, the presence of all the following factors shall mean that the case will not generally need to be referred to the Attorney General:
the part of the estate concerned comprises of a cash amount of no more than £500 and/or personal effects of minimal value and/or wedding rings and/or engagement rings;
the person who has intermeddled has written notification in advance indicating the approval of their proposed actions from at least one of the heirs or beneficiaries of the estate and that approval shall contain acknowledgement that there are no known heirs or beneficiaries who they may believe might object to the action taken;
the person who has intermeddled has acted reasonably and in the course of their duties; and
the person who has intermeddled has acted in good faith and there is no ground for supposing that the intermeddling was deliberately done to gain some advantage (financial or otherwise) or to damage the interests of another party.
Additional public interest factors in the decision to prosecute for financial services businesses
The Guidelines also detailed new public interest factors to be considered in relation to financial services businesses in addition to the matters set out at paragraph 17 of the Attorney General’s Code on the decision to prosecute:
the trigger event for the payment away of the deceased’s movable estate was a decision taken by a bank or financial institution in another jurisdiction over which the Jersey bank or financial institution had no control;
the estate which has been subject to an alleged act of intermeddling comprises complex asset structures held in multiple jurisdictions;
the alleged intermeddling took place as the direct result of an act by an automated system; and
the alleged intermeddling took place as the direct result of an unavoidable manual error by a bank or financial institution in Jersey
The publication of the Guidelines follows two cases in 2019 of Jersey Banks being found guilty of the offence of intermeddling and being fined up to £25,000 and an extra £2,085 in compensation.
We have worked on cases of intermeddling by financial institutions in Jersey where no prosecutions have been brought. It has become very apparent that the internal policy and procedures of many financial institutions in Jersey, in cases where they are holding movable assets on behalf of international clients, are inadequate. Existing policies and procedures need to be reviewed urgently and appropriate training provided to all relevant employees.
Pinel Advocates is offering financial institutions training for their employees on the probate process. The topics covered will be:
What is the probate law in Jersey?
What is intermeddling?
An overview of cases to date.
What are the typical causes of breaches of the law?
What leads to prosecutions?
How can these be avoided?
If you are a financial institution in Jersey and would like Pinel Advocates to give a short presentation to your employees, please get in touch with our head of wills and probate, Janina Porter.