Jersey: Jersey Approves Changes To Update Law Surrounding Property Inherited By Minors

Last Updated: 30 August 2016
Article by Julie Melia

Most Read Contributor in Jersey, September 2018

The States of Jersey have finally approved reforms to the Island's customary law and rules regarding the governance and administration of property belonging to minors by approving the adoption of the Children's Property and Tuteurs (Jersey) Law 2016 (the New Law). The New Law is now in force.

In this briefing we discuss the current regime of Tutelles and how the New Law proposes to change this regime.

What is the current regime?

The current regime regarding the governance and administration of properly belonging to minors dates back to 1862. In summary, the current regime provides that, in respect of minors (those under 18) who are not considered legally competent to manage their own property, that in the event the minor inherits, acquires or is gifted property, that the 1862 law requires a mechanism called a Tutelle to be formed (a form of guardianship) to manage the minor's property. A Tutelle (a form of guardianship committee) consists of seven individuals (generally four from the paternal side and three from the maternal side); one of these assumes the role of Tuteur (the head of the Tutelle or guardian) whilst the other six members are the Electeurs. The Tuteur's job (supported by the Electeurs) is to work together to administer and protect the minor's financial interests until the minor reaches the age of 18 whereby the property is handed over to the minor.

For further information on Tutelles please see our earlier briefing entitled: "A Guide to Tutelles in Jersey" a copy of which can be accessed here.

What are the issues with the current regime?

The current regime has a number of drawbacks which include, amongst others:

  • many Electeurs not understanding the extent of their potential liability (they are liable for the defaults of the Tuteur but do not have any real control over his or her actions);
  • gathering together seven members to form a Tutelle is administratively burdensome;
  • there is no clear process for a Tuteur to resign or be removed from office; and
  • there is no consideration as to the suitability of the person nominated for the appointment of Tuteur;

What changes does the New Law bring in?

Abolishment of role of Electeurs

The New Law abolishes the office of Electeurs but keeps the office of Tuteur. The Tuteur is still appointed by the Royal Court and such an application for the appointment of Tuteur may only be made by one of the following individuals:

  1. a parent or relative of the minor;
  2. a guardian of the minor;
  3. a creditor of the minor;
  4. the Attorney General; or
  5. any other person who obtains the leave of the Royal Court.

It is important to note that a Tuteur can only be an individual (for example the minor's parent or guardian). Corporate bodies cannot be appointed as Tuteurs. If the Royal Court considers it appropriate it may appoint more than one person to act as Tuteur.

Such appointment will take effect once the appointed individual(s) take the following oath (which appears in Schedule 1 of the New Law):

You swear and promise before God that you will well and faithfully discharge the duties of tuteur in relation to the property of [Name of Minor] in respect of which you have been appointed; that you will administer and safeguard such property with equal or event greater concern than you would manifest for your own; that you will deliver good and faithful accounts to whomsoever may be entitled to demand the same; and that you will generally discharge all the duties appertaining to the said office.

Once appointed, the Tuteur will act alone and will have the sole responsibility for administering and protecting the assets for the benefit of the minor. The Tuteur is entitled to remuneration (at a rate specified in the rules of court) and reimbursement for their reasonably incurred expenses in the discharge of their duties.

The individual(s) appointed as Tuteur shall continue in their role until the minor attains the age of majority (18 years under Jersey law) or the minor dies or the Tuteur is removed from their office by the Royal Court. When the Tuteur's position ceases due to the minor attaining the age of majority or the minor dying, the Tuteur must take all necessary steps to transfer the administration of the minor's property to the minor or to the executor of the minor's estate or to any curator of the minor (as applicable).

Increase in value of property requiring a Tutelle

Following the introduction of the New Law a Tutelle will only be necessary where a minor inherits either movable property over £25,000 or immovable property of any value. A Tuteur need not be, but nevertheless may be appointed if the value of the movable property inherited, acquired or gifted to the minor is less than £25,000 or, if the minor's property is already administered by an administrator, executor or trustee.

Introduction of statutory duties on Tuteurs

The New Law introduces certain duties which a Tuteur will need to adhere to. These include:

  • delivering to the Judicial Greffier (an officer of the Royal Court) an inventory of the minor's property within 90 days of their appointment as Tuteur;
  • preparing and submitting to the Judicial Greffier annual accounts in connection with the administration of the property; and
  • delivering all accounts to the Judicial Greffier and all other relevant persons upon cessation of the Tuteur's position.

Offences

If a Tuteur were to fail to comply with any of the duties mentioned above, without reasonable excuse, they will have committed an offence which could result in them receiving a fine of up to £2,000.

The New Law also makes it an offence for any person to administer a minor's property where the New Law requires that a Tuteur should be appointed, but no such Tuteur has been appointed. Moreover the New Law makes it an offence for another person, other than a person employed by a Tuteur, to administer the minor's property. If any individual commits either of these offences they could be liable to an unlimited fine and/or imprisonment of up to 12 months.

The Royal Court's Role

As under the current regime an application will have to be made to the Royal Court for the formal appointment of a Tuteur; however this does not prevent the Royal Court from appointing Tuteurs in other cases that the Court considers appropriate.

The New Law also grants the Royal Court a supervisory role and the power to issue directions to in respect of:

  • the administration of the property;
  • imposing restrictions on the Tuteur's powers as it sees fit;
  • the administration of the minor's property regardless of whether a Tuteur has been appointed;
  • transferring the administration of the property from a Tuteur to another person; or
  • removing a Tuteur from their office.

The right to apply to the Royal Court for directions vests in the Tuteur, the Attorney General and any other person provided they obtain the leave of the Royal Court to make such an application.

Transitional Provisions

As a transitional measure, the States have adopted the Children's Property and Tuteurs (Transitional Provisions) (Jersey) Order 2016 (the Order). It is expected that this will come into force on the same date as the New Law.

The Order makes it clear that, where a Tutelle is in existence immediately before the commencement date of the New Law, the provisions under the 1862 law will remain applicable to the Tutelle and the Tuteur.

Moreover, any right of action against an existing Tuteur or Electeur of a Tutelle which has accrued at the commencement date of the New Law under any rule of customary law or any provision of written law in force immediately before the commencement date of the New Law would still be applicable.

Notwithstanding this, the Order does permit for an application to be made to the Royal Court for the appointment of a Tuteur in respect of a Tutelle existing before the commencement date of the New Law.

Comment

The introduction of the New Law will be a welcome update to this area of law and practice and should lead to a simplification of the process by having only one individual in charge of administering the Tutelle. This should maintain a high level of protection for minors but in a more cost effective and streamlined way.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions