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Zarmina Chaudhry | Thursday 20 November 2014 ( 0 Comment)
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Role of an Executor OR Administrator under a will (Jersey Law)

When a person is appointed to perform specific duties under a will he is called as an executor. When a person dies intestate or without a will the court will appoint a person to administer his estate and he is called as an administrator. Either an administrator or executor is appointed by will or by court; his role is always personal one although the roles and duties of both are identical.

As per Jersey law, an Executor is required for will of movable property or personal estate:

·         cash in your bank accounts;

·         shares (including shares in a share transfer property);

·         units in trusts, cars, jewelry etc).

There is no need of an executor for will of immovable property or real estate:

·         Land, freehold property, leases of over nine years.

This is so, because when someone dies, the will of immovable estate is simply registered in the Public Registry to take effect.

When a person dies with a will, and he has appointed an Executor as well then a grant of probate will be obtained. When a person dies intestate then a grant of letters of administration will be obtained.

Under the Probate (Jersey) Law 1998, an Executor must have to apply to the Royal Court for probate of the deceased's will. For this the requirements for executors are as under:

1.    original will of the deceased;

2.    the death certificate; and

3.     the value of the estate as stamp duty will need to be paid on the value estate.

Stamp duty is calculated by taking the gross value of the estate less any liabilities which may be due e.g. outstanding care fees, medical bills, tax etc.

Similarly for an administrator to obtain order regarding letters of administration following are requirements:

1.     an affidavit confirming that he is the principal heir of the deceased and as such is the person entitled to administer the estate;

2.     the death certificate; and

3.     the value of the estate as outlined above.

Once probate OR letters of administration has been obtained, it is the duty of an Executor/ Administrator to gather in the assets of the deceased; and pay all outstanding liabilities that may be due.

After completion of above, it is now the duty of the Executor to divide the assets of the estate according to the terms of the will whereas for an Administrator, in accordance with the provisions of the law.

As under Jersey law there is no provision for a small estates procedure a grant of probate or letters of administration will be required for any sums held by the deceased for jersey resident, including a personal allowance held by a care home or Co-op share account. There is one exception to this rule, where the assets of the deceased are held jointly and for the survivor with another individual. In the case, the assets will automatically pass to the surviving party (this is subject to certain provisions of Jersey law)

Under Jersey law important rule for the Executor is year and day rule. There are certain aspects of this rule which an Administrator should be mindful of. There are several features to this rule:

1.    The period under which challenges can be brought against a will is a year and a day from the issue of the grant;

2.     All legacies under the will should not be paid until a year and day after probate has been obtained as a will may be challenged during this time;

3.     It is during the year and a day period that an Executor can apply to the court for directions in respect of the will e.g. if there is any ambiguity in the will;

4.     Following the expiration of the year and a day, the Executor must distribute the estate in accordance with the will and give a good account of the estate to the beneficiaries.

Any individual who is not the Executor or Administrator of the estate and who has not obtained probate or letters of administration if takes possession of estate or deal with it, he or she is guilty of intermeddling that is an offence under the Law so shall be liable to a fine and/or imprisonment.

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.

 

 

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Zarmina Chaudhry | Thursday 20 November 2014 ( 0 Comment)
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Expert Determination

Expert determination is being widely used in real estate and construction industry. It has always played a greater role in valuation a dispute, so we can say that concept of expert determination is originated from valuation disputes.

A final and binding decision is one of main and perceived advantages of expert determination but an expert while exercising in this regard if does not use the level of skill and care that is required in reaching that decision, may be sued for negligence.

Interesting fact is that a party may set aside the expert determination.

 In Shafi v Rutherford [2014] EWCA Civ 1186, an expert was appointed for determination of a dispute regarding amount to be paid for a share in dental practice. The expert identified that some leases were not treated while accounts of dental practice were maintained. According to expert correction of those identified accounting errors was not to consider and outside the scope of his instructions, hence valued the shares on those incorrect accounts.

It was found by court of appeal that treatment of those identified leases on the accounts was within scope of expert determination and the letter of instruction to expert as well. The court of appeal therefore decided to appoint new expert for a new determination.

This is a rare example of the courts interfering with expert determination because, as noted above, an expert determination cannot generally be appealed or challenged. When entering into a contract, it is common for parties to agree on provision which provides for binding expert determination. This ensures that the effect of the decision of the expert is certain and is often cited as a benefit of using expert determination to resolve disputes.

This is a very rare example of courts, to set aside and vary the expert determination. Usually expert determination cannot be appealed or challenged. Parties commonly agree into the contracts containing provisions that ‘such determination will be binding’. This clearly shows that effect of using an expert for determination always proves as beneficial to resolve many disputes.

However, there are certain other grounds which can, in limited circumstances, lead a court to set aside or vary an expert determination:

Still there are number of certain ground that lead a court to outcast or change an expert determination as under.

  • Material departure from instructions  as described above in Shafi v Rutherford
  • Failure to state reasons
  • Fraud or collusion
  • The certificate not being certain
  • Partiality

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

 

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Zarmina Chaudhry | Thursday 20 November 2014 ( 0 Comment)
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A Right to Privacy in remedies hearings

Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) has created a fuss on issue of media reporting of family cases in England.

Practitioners in open proceeding (open to public) jurisdictions may be wondering that actually what this fuss is all about?

As open justice is an important pillar of legal system in UK so most of the family law proceedings in this country have long been recognised as exception to this rule.

There is special category of cases under family laws that are heard in private. In such cases the disclosure is provided only under compulsion.

Althoughrepresentatives
of accredited media are allowed to attend the remedy hearing but the question is, what they are permitted to report?

Do the media organisations have to ask for permission to report, related the parties have to apply for an injunction to prevent reporting?

This was one of main question that is found by Justice Roberts while determining how parties wealth should be divided, on 10th day final hearing.

The arguments from counsel for media and both parties were placed before the court on what the press should be allowed to publish. Law was found unclear on that.

Although the Family Procedure Rules 2010 does allow accredited members of the media to attend court, but those rules are silent on what they may report .There is no binding decision about whether the '1926 Act' applies to financial remedy cases and also un clarity on law about 'implied undertaking of confidentiality', that whether parties owing 'implied undertaking ofconfidentiality
to each other and to the court should extend to the press.

Proceedings with presence of press in it should be considered ‘public’, is the question that is unanswered.

During the preceding the Judge said that 'notwithstanding journalists now have rights of access to these private hearings, here been a need, to protect the confidential nature of the financial information disclosed within such hearings.

It was a matter of balancing the couple's rights to privacy (under Article 8 of the European Convention on Human Rights), against the media's Article 10 rights to freedom of expression on the other.

 

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.

 

 

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