When a person dies nobody is allowed to deal with his bank accounts or other assets until a Grant of Probate has been issued, save in a very limited set of circumstances. If anyone, including the Executor named in the Will, disposes or otherwise deals with assets before that Grant of Probate is issued they are said to have “intermeddled” with the Estate.
Intermeddling not only gives rise to a potential claim for any losses that the Estate may have suffered, but is also a criminal offence under the terms of the Probate Law. Two prosecutions brought by the Attorney General against separate banks in Jersey have shown how seriously the Royal Court regards these offences (see AG – v- Standard Bank Jersey Limited JRC146 and AG –v- Abu Dabi Commercial Bank JRC192 E192). Despite the Court acknowledging in each case that the payments out of the bank accounts belonging to the deceased person were made as a result of a genuine error or oversight, and with no intent to defraud the beneficiaries to the Estate, fines measured in tens of thousands of pounds were imposed on the two banks.
The offence of intermeddling was established with a clear purpose of protecting the assets in the Estate from being dissipated to persons who are not otherwise entitled. When a person dies he or she is no longer in a position to guard their money or belongings. Accordingly, it is right that there is a rigid rule of law to prevent others from stepping in and distributing assets without authority.
A certificate of Probate is in effect a certificate granted by the Court confirming to the outside world that the Executor is the person authorised to deal with the assets. Until the Probate Court has had the opportunity of considering the Will and identifying the individual to be appointed as Executor on an application for Probate, nothing can or should be done with the Estate. The only limited exception to the rule is actions taken for the preservation of the Estate or taking into safe custody. In effect all bank accounts should be frozen with no payments made to or from them. No securities, chattels or other assets should be sold or transferred until the Executor has formally been granted Probate.
In both of the recent prosecutions the banks “self-reported” the offences to the Attorney General, recognising the errors that had been made. This mitigated the position but the fines demonstrated the Court’s concern that the mistakes had been made in the first place. It is of note that the Court considered in one of the cases whether the individuals employed by the institution could have been prosecuted as well as the bank itself. The very personal liability which attaches to the criminal offence should not be overlooked.
Undoubtedly an element of the fines were handed down to remind both individuals and financial institutions of the serious reasons for the intermeddling law and to remind those dealing with Estates that any failure to observe the proper procedure in obtaining a Grant of Probate would be visited with a substantial financial penalty and a criminal record.
All told the cases highlight the need for early detailed advice from experienced Probate lawyers. The Probate team at Benest & Syvret have vast experience in dealing with Probate applications from all around the world and will be able to assist promptly with any query so as to avoid any potential intermeddling offence arising.
For further information contact Philip Syvret or Claire Kingham on 875875.
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