Unclaimed Life Assurance Policies Act 2003

PART 1 Preliminary and General

1. Short title, collective citation and commencement.

1. —(1) This Act may be cited as the Unclaimed Life Assurance Policies Act 2003.

(2) The Dormant Accounts Act 2001 and section 27 may be cited together as the Dormant Accounts Acts 2001 and 2003.

(3) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be appointed for different purposes or different provisions.

2. Interpretation.

2. —(1) In this Act, except where the context otherwise requires—

“Act of 2001” means the Dormant Accounts Act 2001;

“Agency” means the National Treasury Management Agency;

“approved policy” means—

(a) a policy approved by the Revenue Commissioners—

(i) for the purpose of receiving payments from retirement benefit schemes approved under Chapter 1 of Part 30 of the Taxes Consolidation Act 1997, or

(ii) under section 784 or 785(1)(a) of Part 30 of the Taxes Consolidation Act 1997,

or

(b) a Personal Retirement Savings Account established with an insurance undertaking;

“communication” means an electronic or written communication from a policy holder to an insurance undertaking in relation to a policy and includes the payment of premiums under, or partial encashment of, a policy by the policy holder;

“continuing risk policy” means a policy which has acquired a surrender value and continues, by the imposition of charges on the policy without reference to the policy holder, to assure an amount which will become payable by the insurance undertaking in the event of death or disability;

“correspondence address” means—

(a) subject to subsection (2), in the case of a policy holder other than a body corporate, the holder's last known address for correspondence according to the records of the insurance undertaking at which the policy is held, and

(b) in the case of a policy holder that is a body corporate, its registered office or place of business;

“First Directive” means Council Directive No. 79/267/EEC of 5 March 1979^1;

“Fund” means the Dormant Accounts Fund established by the Act of 2001;

“insurance undertaking” means—

(a) the holder of an authorisation granted under the European Communities (Life Assurance) Framework Regulations 1984 (S.I. No. 57 of 1984) or the Life Regulations of 1994,

(b) the holder of an official authorisation granted pursuant to the First Directive as amended or extended from time to time, or

(c) the holder of an official authorisation to undertake insurance in Iceland, Liechtenstein and Norway, pursuant to the EEA Agreement within the meaning of the European Communities (Amendment) Act 1993, who is carrying on the business of life assurance in the State,

and references to “undertaking” shall be read accordingly;

“life assurance” means insurance of a class specified in Part A of Annex I to the Life Regulations of 1994 the text of which Annex is set out for convenience of reference in Schedule 1;

“Life Regulations of 1994” means the European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994);

“Minister” means the Minister for Community, Rural and Gaeltacht Affairs;

“Personal Retirement Savings Account” has the same meaning as in Chapter 2A (inserted by the Pensions (Amendment) Act 2002) of Part 30 of the Taxes Consolidation Act 1997;

“policy” means—

(a) a policy of life assurance in respect of which the contract may or may not be evidenced by a policy document, or

(b) a Personal Retirement Savings Account established with an insurance undertaking;

“policy holder” means—

(a) a person who proposes for life assurance to an insurance undertaking and to whom the undertaking issues the policy concerned,

(b) where a policy has been assigned to another person, that person, to the extent of his or her entitlement,

(c) where a person is deceased, the heirs, executors, administrators and assigns of that person,

(d) where another person is entitled to be paid an amount payable under the policy, that other person, to the extent of his or her entitlement,

(e) a person appointed to administer the policy on behalf of the policy holder, whether by a court or pursuant to Part II of the Powers of Attorney Act 1996 or otherwise, or

(f) a contributor (within the meaning of Chapter 2A (inserted by the Pensions (Amendment) Act 2002) of Part 30 of the Taxes Consolidation Act 1997) in respect of a Personal Retirement Savings Account established with an insurance undertaking,

and “holder” shall be read accordingly;

“prescribed” means prescribed by regulations made by the Minister and cognate words shall be read accordingly;

“register” means the register of unclaimed policies established under section 12;

“regulatory authority” means the Minister for Enterprise, Trade and Employment or any successor to his or her functions as the regulatory authority for life assurance business in the State;

“specified term”, in relation to a policy, means, subject to subsection (3), a period after which moneys become payable under the policy to the policy holder;

“surrender value” means the monetary value of a policy where it is surrendered by the policy holder to the insurance undertaking;

“unclaimed policy” means a policy to which this Act applies by virtue of section 6 or pursuant to regulations made under section 7.

(2) Where a person (other than a body corporate) does not give an address for correspondence to the insurance undertaking concerned, any other address given by the person to the undertaking is deemed to be his or her correspondence address for the purposes of this Act.

(3) For the purposes of this Act an approved policy is deemed to have a specified term which expires on the date for commencing payment of the retirement or superannuation benefits out of, or secured by, the proceeds of the policy, or where there is more than one such date provided for in the policy, the latest of those dates.

(4) (a) For the purposes of this Act, the net encashment value of an unclaimed policy is the total of—

(i) the amount payable by an insurance undertaking to a policy holder under the policy if the policy holder were to make a claim, whether by encashment or otherwise, on the assumption that any contingency assured under the policy which would vary the amount otherwise payable has not occurred, and

(ii) any interest applied by the insurance undertaking, on the relevant date, to the moneys payable under the policy, in accordance with the usual practice of the undertaking concerned.

(b) In the case of an approved policy, amounts payable to the policy holder under the policy include amounts available to be applied on behalf of the policy holder in accordance with the terms of the policy.

(c) In the case of a continuing risk policy, when transferring moneys to the Fund under section 10, the amount referred to in paragraph (a)(i) is exclusive of the charges (if any) payable to maintain the policy in force until the life assured or, in the case of joint lives, the youngest of the lives assured under the policy has reached, or would have reached if he or she were living, 100 years of age.

(d) In this subsection “relevant date” means—

(i) in the case of the transfer of moneys to the Fund under section 10, the date of transfer, and

(ii) in the case of a claim under an unclaimed policy under section 15, the date of the notice given to the Agency under subsection (1)(b) of that section.

(5) In this Act—

(a) a reference to a Part, Chapter, section or Schedule is to a Part, Chapter or section of or Schedule to this Act, unless it is indicated that a reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended,

(c) a reference to any other enactment shall, unless the context otherwise requires, be read as a reference to that enactment as amended by or under any other enactment, including this Act, and

(d) a reference to the performance of functions includes, with respect to powers and duties, a reference to the exercise of powers and the carrying out of duties.

3. Regulations and orders.

3. —(1) The Minister may—

(a) by regulations provide, subject to this Act, for any matter referred to in this Act as prescribed or to be prescribed, and

(b) in addition to any other power conferred on him or her to make regulations, make regulations generally for the purposes of, and for the purpose of giving full effect to, this Act.

(2) Regulations under this Act—

(a) may contain such incidental, supplementary and consequential provisions that appear to the Minister to be necessary or expedient for the purposes of the regulations, and

(b) may apply either generally or to a specified class or classes of policy, insurance undertaking or person (including a class or classes of policy, insurance undertaking or person specified in regulations under section 7) or to any other matter that may be considered by the Minister to be appropriate and may include different provisions in relation to different classes of policy, insurance undertaking or person.

(3) Where the Minister proposes to make regulations under section 7 or an order under section 9(7), he or she shall cause a draft of the regulations or order to be laid before each House of the Oireachtas and the regulations or order shall not be made until a resolution approving of the draft has been passed by each House.

(4) Every regulation or order under this Act (other than regulations made under section 7 or an order made under section 1 (3) or 9(7) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or order is passed by either House within the next 21 days on which that House has sat after the regulation or order is laid before it, the regulation or order shall be annulled accordingly but without prejudice to the validity of anything previously done under the regulation or order.

4. Expenses.

4. —Except where otherwise provided for in this Act, the expenses incurred by the Minister in the administration of this Act shall, to the extent that may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

5. Penalties and proceedings.

5. —(1) A person guilty of an offence under this Act is liable—

(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 5 years, or both.

(2) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent, connivance or approval of, or to be attributable to any neglect on the part of any director, manager, secretary or other officer of the body corporate or any other person who was purporting to act in any such capacity, that officer or person as well as the body corporate is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

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(4) Summary proceedings in respect of an offence under this Act may be brought and prosecuted by the regulatory authority.

(5) Where a person is convicted of an offence under this Act, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the regulatory authority the costs and expenses, measured by the court, incurred by the regulatory authority in relation to the prosecution of the offence.

PART 2 Unclaimed Policies

Chapter 1

6. Unclaimed policies.

6. —(1) Subject to subsection (3), this Act applies to an unclaimed policy in respect of which moneys are payable in the State to a policy holder who has a correspondence address in the State.

(2) For the purposes of this Act, a policy is deemed to be unclaimed—

(a) where—

(i) the policy has a specified term which has expired,

(ii) an amount would be payable to the policy holder under the policy if the policy holder were to make a claim under the policy or, in the case of an approved policy, is available to be applied on behalf of the policy holder in accordance with the terms of the policy, and

(iii) the insurance undertaking has received no communication from the policy holder for a period of 5 years or more beginning on the later of—

(I) the day following the last day of the specified term of the policy, or

(II) the date on which the undertaking last received a communication from the policy holder,

or

(b) where—

(i) the policy does not have a specified term,

(ii) an amount would be payable to the policy holder if the policy holder were to make a claim under the policy, and

(iii) the undertaking has received no communication from the policy holder for 15 years or more beginning on the date on which the undertaking last received a communication from the policy holder.

(3) This Act does not apply to a policy which constitutes or forms part of the assets of any of the following:

(a) an occupational pension scheme, other retirement benefit scheme or trust, approved under Chapter 1 of Part 30 of the Taxes Consolidation Act 1997 (other than an approved policy within the meaning of this Act);

(b) a group permanent health insurance or disability benefit scheme;

(c) a sponsored superannuation scheme within the meaning of Chapter 2 of Part 30 of the Taxes Consolidation Act 1997.

7. Extension of application of Act.

7. —(1) The Minister, having regard to the purposes specified in subsection (3), following consultation with the regulatory authority and subject to the consent of the Minister for Finance, may make regulations providing for the application of this Act and instruments made under this Act, with and subject to any modifications that may be specified in the regulations, to policies (including policies other than policies of life assurance), that are issued to such class or classes of person by such class or classes of undertaking specified in the regulations.

(2) Without prejudice to the generality of subsection (1), the modifications, if any, may relate to any of the following matters:

(a) the period specified in paragraph (a) (iii) or (b) (iii) of section 6(2);

(b) the notice procedure set out in Chapter 2;

(c) the transfer of moneys to the Fund under section 10;

(d) the keeping of a register under section 12 and the particulars required to be entered in the register under that section;

(e) the disclosure of information for statistical purposes under section 13;

(f) the processing of claims under Chapter 4;

(g) any other matters that may appear to the Minister to be necessary for carrying the regulations into effect.

(3) The Minister may make regulations under this section for the following purposes:

(a) consumer protection;

(b) the proper and orderly regulation of the financial services industry;

(c) to facilitate the accessing or identification by persons of policies or moneys to which they are entitled;

(d) to reduce the administrative and financial burden of maintaining unclaimed policies.

Chapter 2

8. Notice to policy holders.

8. —(1) Subject to section 9, except where a policy holder has previously been given notice under this section in respect of an unclaimed policy, each holder of an unclaimed policy shall be given written notice by the insurance undertaking concerned of the following:

(a) the name and current address of the undertaking and any information regarding a change of name since the policy issued;

(b) that an unclaimed policy to which the policy holder appears to be entitled is held at the undertaking;

(c) that if no communication is received by the insurance undertaking from the policy holder on or before 31 March next following, commencing on 31 March 2004, the net encashment value of the policy will be transferred to the Fund without further notice to the policy holder;

(d) that the policy holder is entitled, subject to this Act and the terms and conditions of the policy, to claim the moneys payable under the policy from the insurance undertaking;

(e) any other matters that may be prescribed.

(2) The notice referred to in subsection (1) shall be sent by ordinary post to the correspondence address of the policy holder—

(a) in the case of the first notice sent after the commencement of this section, as soon as practicable after such commencement, and

(b) in the case of each subsequent notice, as soon as practicable after 30 September, commencing on 30 September 2003.

(3) An insurance undertaking that fails to give notice to a policy holder in accordance with this section is guilty of an offence.

9. Publication of notice.

9. —(1) Where an unclaimed policy is held at an insurance undertaking and—

(a) subject to any order made under subsection (7), the value of the policy is less than €500 or its equivalent in any other currency,

(b) the insurance undertaking has been instructed by the policy holder not to correspond with or contact the policy holder, or

(c) the insurance undertaking has taken all reasonable steps to notify the policy holder in accordance with section 8 and fails to do so,

section 8 does not apply and the insurance undertaking shall publish or cause to have published a notice in 2 or more daily newspapers circulating in the State and in Iris Oifigiúil.

(2) The notice shall be published—

(a) in the case of the first notice published after the commencement of this section, on 21 March 2003, and

(b) in the case of each subsequent notice, on the first weekday in October in each year commencing on 1 October 2003.

(3) The notice shall be in the prescribed form or in a form to the like effect and shall contain the following information: