Comments - P.50-2020 Draft Covid-19 (Signing Of Instruments) (Jersey) Regulations 202- 20 April 2020

STATES OF JERSEY

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DRAFT COVID-19 (SIGNING OF INSTRUMENTS) (JERSEY) REGULATIONS 202- (P.50/2020): COMMENTS

Presented to the States on 20th April 2020 by the Corporate Services Scrutiny Panel

STATES GREFFE

2020  P.50 Com.

COMMENTS

1. P.50/2020 – Draft Covid-19 (Signing of Instruments) (Jersey) Regulations 202- (the "draft Regulations") have been lodged by the Chief Minister in response to the ongoing Covid-19 outbreak.
2. On 27th March 2020 the States Assembly adopted the Covid-19 (Enabling Provisions) (Jersey) Law 2020, which came into force on 8th April 2020. This enabled the States Assembly to introduce any emergency legislation that may be required to manage the effects and impact of the Covid-19 outbreak in Jersey, and allowed the States to make Regulations that would have the effect of primary Laws, and thereby ensure the enactment of emergency legislation as quickly as possible.
3. The purpose of the draft Regulations is to maintain the continued ability for individuals to safely witness legal documents such as wills, powers of attorney, and affidavits. Various elements of the probate rules which require face-to-face contact between an applicant and another party are also required to be updated in response to Covid-19. The draft Regulations do this through –

1. Updates in procedures when carrying out actions under the Probate (General) Rules 1998, relating to application for probate or letters of administration and attestation of documents required to be executed in the matter of a grant; and
2. Adding an additional Article into the Wills and Successions (Jersey) Law  1993 to  amend  that  Law  in  relation to  wills  of  movable  or immovable estate.

4. The draft Regulations allow the use of an audio-visual link if Covid-19 has impacted actions needed to carry out the above. Measures will be in place to ensure appropriate practices continue, these include –

1. In all cases the relevant parties must be able to see and hear each other.
2. The  individual  making  the  oath,  signature,  or  testament,  must  be positively identified by relevant persons, be that witness, testator, or Judicial Greffier.
3. The relevant persons, be that witness, testator or Judicial Greffier, must be able to see the signature being made.
4. The relevant persons, be that witness, testator or Judicial Greffier, must make themselves satisfied that the document being signed is in fact the document in question.
5. As relevant, the witness, testator or appointer, must provide a written declaration that the above has been carried out, usually within 14 days, to the Judicial Greffier, testator or their retained advocate or solicitor.
6. Where  necessary,  such  as  in  the  case  of  a  will  of  immovables, documents will be read aloud.

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7. Documents, such as signed forms, must be filed with the relevant bodies, with some being time-restricted, for example providing the Judicial Greffier with documents 3 days before application for probate or letters of administration.

5. The Panel is satisfied that the definition of "positively identify" is sound, this being the requirement for the person to be known to the individual identifying, or for that person to display a form of photographic identification which the identifier is able to see over the audio-visual link.
6. The  Panel  is  concerned  regarding  the  potential  for  issues  with  access  to technology, especially with the elderly and disabled. It asks that consideration is given to how this may be addressed, given that these groups are some of the most likely to want to utilise the ability to have documents witnessed remotely, but are also some of the most vulnerable to Covid-19.
7. The Panel notes that, as with most legislation related specifically to Covid-19, the draft Regulations are time-limited up to 30th September 2020.
8. Should the Covid-19 pandemic continue beyond the end date of these draft Regulations, the Panel recommends that the efficacy of these measures is reviewed at this point rather than just extended, especially in relation to access to technology.
9. The  Panel  has received  the  views  of  the  Jersey  Law  Society,  which  has confirmed that the legal profession supports the proposals outlined in the proposition.
10. In conclusion the Panel is, overall, supportive of these draft Regulations.

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