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Attestation of Wills and Execution of Powers of Attorney: Disability - Law drafting instructions

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Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

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A decision made 11 March 2016:

Ministerial decision reference     MD-C-2016-0015

Decision summary title   Attestation of Wills and execution of Powers of Attorney: Disability – Law Drafting Instructions

Decision summary author

Executive Officer, Legislation Advisory Panel

Is the decision summary public or exempt?  

Public

Report title   Attestation of Wills and execution of Powers of Attorney: Disability – Report and Law Drafting Instructions

Report author or name of

person giving report

Law Draftsman

Is the report public or exempt?

Exempt - Qualified Exempt Article Number 31 and 35

Decision and reason for the decision

Further to a recommendation of the Legislation Advisory Panel, the Chief Minister has decided to instruct the Law Draftsman’s Office to prepare draft legislation to implement a proposal that –

(i)               the Loi (1851) sur les testaments d’immeubles and the Wills and Successions (Jersey) Law 1993 be amended so that the requirements concerning the attestation of wills be set out to make it clear that a person who was unable to sign a will could nonetheless validly execute a will by making a declaration of the reason for such inability, such declaration to be recorded on the face of the will and attested by 2 witnesses in the presence of the testator and of each other;

(ii)              the Powers of Attorney (Jersey) Law 1995 be amended to similar effect in relation to persons unable to sign a power of attorney. 

The purpose of the first amendment is to address a potential deficiency in the law since an Act of the Royal Court of 25th March 2014 ruling that a will by a person with a disability – unsigned by him, but executed on his behalf and at his direction in the presence of witnesses – could not be admitted to probate.  The ruling calls into question the ability (and hence the right) of a disabled person to make a Jersey will.  There must be no question of a person being deprived of the ability to make a valid will by reason only of a physical disability.

The purpose of the second amendment is to make it equally clear that no person is deprived under Jersey law of the ability to execute a power of attorney by reason only of a physical disability.

Resource implications

There are no resource or manpower implications resulting from this Ministerial Decision

Action required

Law Draftsman to prepare working drafts of the necessary Laws for the Legislation Advisory Panel to consider in preparation for the Chief Minister to lodge au Greffe.

Signature

 

 

Position

Senator I J Gorst

Chief Minister

 

 

Date signed

Effective date of the decision

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