The Jersey Law Review - October 2002

LÉGITIME: A TIME FOR REFORM?

Keith Dixon

Tchi pus vivra, pus donn’na?[1]

INTRODUCTION

On January 2nd 2001^[2] the Legislation Committee presented a consultative document^[3] to the States of Jersey entitled “Succession Rights” in which that Committee indicated that it was minded -

“(i) to bring a proposition before the States to repeal the Laws of Succession so as to allow any person to dispose of movable estate by Will as he/she sees fit, subject to paragraph (ii) below;

(ii) to create a jurisdiction in the Royal Court to make such order as it thinks fit in the administration of the movable estate as provides a proper sum out of the estate for the maintenance and support of the dependants of the deceased;

(iii) to provide a new Law for succession to movable estate on intestacy the result of which will be to confer a share on the surviving spouse and another share on all the children of the deceased whether legitimate or illegitimate in equal shares;

(iv) to provide protection for executors and administrators dealing with the administration of the estate of the deceased in good faith.”

Although the time allowed for the filing of submissions to the Legislation Committee expired on March 15th 2001 no projet has yet been submitted to the States and the hiatus provides a useful opportunity to examine the origins of the present rules of légitime and then the case for and against their reform. 

INHERITANCE RIGHTS AND TESTAMENTARY FREEDOM

By putting forward its proposals the Legislation Committee has opted to take part in a much larger ethical, political and legal discussion concerning the nature of inheritance generally.  In brief, theorists^[4] have long disagreed on two central issues, firstly the source of the inheritance right (is it a natural and therefore irrevocable, right or, as the positivists argued, a civil or statutory, and therefore terminable, right?), and secondly how to resolve an internal tension (should one think in terms of a person’s right to control the disposition of his estate or conversely the right of an heir to receive the inheritance?).^[5]

1. Throughout history and into the present all societies have had to address these issues in their laws relating to testamentary freedom (i.e. the ability for a person to dispose of his estate by will as he wishes).  The vast majority of jurisdictions^[6] have steered a path between complete testamentary freedom on one side and an absolute right of inheritance on the other.  Essentially three different methods can be distinguished -

(a)    restricting the testamentary power to a proportion of the estate;^[7]

(b)    permitting members of the deceased’s family to set aside the will if it provides less than a minimum portion of the estate;^[8]

(c)    leaving it up to the courts to decide.^[9]

LES POUVOIRS TESTAMENTAIRESIN JERSEY

            It is fair to say that the amount of testamentary freedom afforded by the law in Jersey has increased markedly from the almost total prohibition which existed in the early sixteenth century. The present position is that a testator now enjoys unrestricted testamentary freedom over his or her immeubles situated in Jersey (the common law rights of douaire and viduité excepted) but, if the testator is domiciled in Jersey, his or her freedom to deal with any meubles is still inhibited by the operation of the rules of légitime.^[10]  The recommendation put forward by the Legislation Committee is to abandon the rules of légitime in favour of a system based on the current English statute, the Inheritance (Provision for Family and Dependants) Act 1975.^[11]

LA CONSERVATION DES BIENS

To be able to understand how the Island has arrived at this dichotomous state one must look to the forces which have guided the development of the law as a whole. The Jersey law of testate and intestate succession as well as property rights in general have their origins in the Norman coûtume.^[12]  As a result it is greatly influenced by feudal law concepts.  Central to the Norman coûtume was the belief that, if at all possible, a family's lands should remain in the hands of that same family - la conservation des biens dans la famille.

Much of the Norman coûtume was a comprehensive and ambitious scheme intended to make  the devolution of family property within the family virtually unavoidable; the law permitted no private arrangements which threatened to thwart the consequences which it imposed.  The following passage from Besnier^[13] demonstrates the strength of this overriding philosophy;

"Le caractère patrimonial du droit normand est étroitement associé à son caratère familial.  Tous les travaux de R. Génestal montrent qu'en Normandie l'intérêt de la famille s'est manifesté dans l'élaboration des institutions qui tendent à la conservation des biens.  Les Normands, comme tous les hommes du Moyen Age, n'envisagent pas la propriété d'un point de vue individualiste, pour eux elle est affectée à une famille, elle en est le support réel; aussi ont-ils voulu protéger ce patrimoine, et lui ont-ils donné un régime juridique dont la rigueur est beaucoup plus accentuée que celle des autres coutumes.  Les filles sont privées de tout droit successoral, parce qu'elles passent par mariage dans une famille étrangère.  Les fiefs sont indivisibles entre fils, la succession forme une unité (tempérée par la règle du parage) qui ne doit pas être fractionnée.  L'aînesse donne au fils aîné une place prépondérante, le retrait lignager permet d'éviter que des biens de famille viennent à passer en des mains étrangères.  Le sens profond de ces règles est de garantir la famille; le caractère familial est le trait essentiel, fondamental de la coutume de Normandie, mais sa prééminence ne doit pas faire oublier qu'il se combine avec le caractère féodal et patrimonial, pour donner au droit normand cet esprit autochtone un peu archaïque et conservateur qu'il gardera jusqu'en 1789."

AVOIDANCE OF LA CONSERVATION DES BIENS

In ancient times there were two potential ways of defeating the doctrine of conservation des biens, namely les donations and les testaments.  It is perhaps not surprising given the prevailing attitudes to property that the Norman coûtume developed not one but two distinct “anti-avoidance” measures, la réserve héréditaire and la légitime.  The difference between these two measures is neatly summarised by Bridley;^[14]

“La Réserve est très ancienne;  elle apparaît dès les premiers textes coutumiers;  elle est donnée très largement, à tous les parents lignagers appelés à la succession;  mais son champ d’application est étroit, elle ne s’applique communément qu’aux seules dispositions testamentaires, et elle n’assure la conservation que des biens les plus précieux, les propres transmis par les ancêtres.  La Légitime, à l’opposé, est de date récente, et de formation doctrinale;  elle n’est accordée qu’assez maigrement, à de très proches parents jugés dignes d’intérêt, et pour leur “soustenance” seulement;  mais en revanche son champ d’application est très large;  elle porte indistinctement sur tous les biens, les meubles et acquêts aussi bien que les propres;  et elle frappe indifféremment toutes les dispositions à titre gratuit, les donations aussi bien que les legs, voire même les constitutions de dot, tant que la part des légitimaires n’est pas assurée.

THE POWER TO DISPOSE OF IMMEUBLES BY WILL IN JERSEY

Initially it would seem that until the mid-1800’s the law in Jersey completely prohibited the disposal of immeubles by will.^[15]  Of course the Code Civil did not have force of law in the Channel Islands but nevertheless over a period of time the same ideas of liberté and égalité began to seep into the jurisdiction in Jersey so that eventually the prohibition on the disposal of realty by will was gradually relaxed^[16]and then abolished altogether so that nowadays an owner of an immeuble situated in Jersey enjoys complete testamentary freedom with respect to that property.^[17] The final provisions removing restrictions upon the right of a landowner to alienate his land at his sole discretion, were not implemented until the passing of the Loi (1960) modifiant le droit coûtumier.  This prompted the then Bailiff, Sir Frank Ereaut, to make the following comments in connection with the evolution of the principle of free alienation of immeubles, a few years later, in Beaugié v Beaugié^[18] - 

“The “Loi (1960) modifiant le droit coutumier”, which removed a number of rights which heirs had to have contracts and wills declared invalid, stresses the intention of the legislature to free persons from restrictions on dealing with their own immoveables as they see fit.  The judgement of the Superior Number in Harden, Tuteur v Harden, Tutrice (1918) 12 C.R. 136 applied the Laws of 1851 and 1902 in such a manner as to affect a fundamental principle applicable to the devolution of realty on an intestacy, for the Court held that realty left by Will to an heir, in whose hands it would have been propres if he had succeeded to it on an intestacy, did not have the nature of propres but instead had the nature ofacquêts.

We therefore agree with the conclusion reached by the Court in the case Basden Hotels Limited v Dormy Hotels Limited 1968 JJ 911 where it said at p.917 of its judgment-

"we come therefore to the conclusion that the effect of the Law of 1926 is virtually to set at naught the fundamental principle of Jersey law "de la conservation du biens dans la famille" so far as immoveables are concerned....". ”

THE POWER TO DISPOSE OF MEUBLES BY WILL IN JERSEY

            Unlike the rules dealing with immeubles the law concerning the individual’s ability to bequeath meubles has been virtually static for several hundred years in Jersey. It appears that Jersey law, taking its lead from Norman Customary law, adopted the concept of the légitime in the late sixteenth or early seventeenth centuries.^[19]  By the late seventeenth century the concept was sufficiently well established in the Island for Le Geyt to be able to summarise it in these terms^[20] -

"Homme marié peut disposer par Testament de la moitié de ses Meubles en faveur de qui bon lui semble, soit Estranger de sa famille, soit héritiers collateraux, soit sa propre Femme:  s'il a des Enfans, quoi qu'emancipez ou d'un premier lit, il ne peut leguer qu'un tiers de ses Meubles, mesme à sa Femme ou à ses Enfants sans prejudice de leur Juste part, scavoir, un tiers à sa Femme et l'autre à ses Enfants.  Si ce tiers dont il dispose excède les frais funeraux et les legs le surplus se partage entre ses Enfants, et s'il n'a ni Femme ni Enfants, il ordonne de tous ses Meubles à sa discretion.  Quand la Veuve a tous les Meubles, elle paye tous les legs et les frais funeraux.  Les legs souffrent diminution au marc la livre si ce tiers du Testateur n'y suffit pas, et sont les legs faits ad pias causas fournis preferablement aux autres."

The position had changed little by 1860 when the Royal Commissioners noted^[21] -

"A will of personalty may be made at 20^[22] years of age.  The testator may dispose of the whole of his personal estate, where he leaves neither widow nor children.  Where he leaves a widow and children, he can dispose of one-third only:  in this case a third goes to the widow, and the remaining third to the children.  If he leaves a widow only, or children only, he can dispose of half;  his widow or children taking the other half.  If he exceeds his power of disposal, his will is reduced ad legitimum modum.  There is no restriction on the individuals to whom he may bequeath his personalty; thus he may favour one child at the expense of all the rest.  Of course the preceding statements with reference to the widow must be understood as subject to the condition involved in her election to take her dower under the old Norman law, whereby, as already explained, she forfeits all claim to a share of the personal estate."

            Today only the proportions which can be claimed by the surviving spouse and the descendants have been changed slightly by the Wills and Succession (Jersey) Law, 1993.^[23]  For the estates of any person dying domiciled in Jersey after September 1st, 1993 the law covering the devolution of the movable property is now found in Article 7 of that Law.

            “Article 7

Devolution of movable estate

(1)    Subject to the provisions of Article 8, where a spouse dies intestate as to movable estate it shall devolve as follows -

(a)    where the deceased spouse leaves a surviving spouse but no issue, the surviving spouse shall take the whole of the net movable estate;

(b)    where the deceased spouse leaves a surviving spouse and issue, the surviving spouse shall be entitled to -

(i)    the household effects;

(ii)    other movable estate to the value of thirty thousand pounds; and

(iii)    one-half of the rest of the net movable estate;

and the issue shall take the other half of the rest of the net movable estate.

(2)    Subject to the provisions of Article 8, where a person dies testate as to movable estate and survived by -

(a)    a spouse but no issue, the surviving spouse shall be entitled to claim as légitime;

(i)    the household effects; and

(ii)    two-thirds of the rest of the net movable estate;

(b)    a spouse and issue

(i)    the surviving spouse shall be entitled to claim as légitime the household effects and one-third of the rest of the net movable estate; and

(ii)    the issue shall be entitled to claim as légitime one-third of the rest of the net movable estate;

(c)    issue but no spouse, the issue shall be entitled to claim as légitime two-thirds of the net movable estate.

(3)    For the purposes of this Article, the division of movable estate among issue shall be par souche.

(4)    For the purposes of this Article “household effects” means articles of household or personal use or ornament normally situate in or around the matrimonial home, but excludes:-

(a)    any motor vehicle;

(b)    any article used wholly or principally for business purposes;

(c)    money or securities for money;

(d)    any single article or any single group of similar or related articles forming a set having in either case a value over ten thousand pounds; and

(e)    any article of personal use or ornament which is the subject of a specific bequest under the will of the deceased spouse.

(5)    For the purposes of this Article, moneys received under a policy of insurance taken out by the deceased spouse on the deceased spouse’s life for the sole purpose of repaying or reducing indebtedness which is secured either by a simple conventional hypothec or a judicial hypothec against immovable property owned by the deceased spouse alone or with another or others, shall not be deemed to form part of the net movable estate to the extent that they are used to repay or reduce such indebtedness or interest accuring thereon to the date of repayment.

(6)    The States may from time to time make Regulations altering the sums specified in:-

(a)    clause (ii) of sub-paragraph (b) of paragraph (1);

(b)    sub-paragraph (d) of paragraph (4).”

THE CASE FOR AND AGAINST REFORM

There is nothing new in a society deciding to change the amount of testamentary freedom afforded to its citizens^[24] and consequently the arguments for and against testamentary freedom have received plenty of academic scrutiny. What follows is therefore a brief summary of the recurring themes.

Arguments for testamentary freedom and against forced heirship

(1)    Testamentary freedom is a “logical extension of an owner’s freedom to deal with his property during his lifetime”.^[25]

This argument and its variant (people obtain pleasure by knowing that their wishes as to the destination of their property after their death will be respected^[26]) are probably more illusory than real for, as opponents of testamentary freedom are quick to point out^[27]one’s freedom to deal with property during one’s lifetime is restricted in many ways.  For example, society does not hesitate to limit the uses to which a property owner, while alive, may put his property when he is indebted to others or when he has obligations of family support.  It could also be argued that the Jersey customary law concept of rapport à la masse^[28] is another form of restriction because a Jersey domiciled individual would know that in certain circumstances an inter vivos gift of his meubles could be challenged and set aside after his death.

(2)    Testamentary freedom “enables a living person to extract advantages from others in return for the hope of a favourable mention in the deceased’s will.”^[29]

This means that where there is disagreement about a proper course of action for an heir to take, or not to take, the testator can always exercise the final and unilateral sanction of disinheritance.  However there is no objective determination of whether the testator or the heir is right in the dispute.  Yet, by permitting and enforcing the disinheritance, a jurisdiction which has unrestricted testamentary freedom effectively makes a judgment automatically and consistently in the testator’s favour.

(3)    Testamentary freedom is “an incentive to industry and the accumulation of wealth.”^[30]

The thinking here is that there is less incentive to accumulate wealth to hand over on death when the choice of persons to whom the wealth is given is denied.  However, while it is just conceivable that some such incentive effects of testamentary freedom must exist, their influence on the national economy, it is submitted, must be very small.

(4)    “Guaranteed inheritances cause heirs to cease to work and so reduce total wealth of the country.”^[31]

The main objection here to this proposition is that it cannot be supported with any empirical evidence.  Do the majority of young people in Jersey give up work just because they are guaranteed an inheritance under their parents’ will?

(5)    As no system of restricting testamentary freedom will ever be able to provide a solution to all the different human relations, it is preferable not to restrict testamentary freedom at all.

This was one of the principal reasons given by the Joint Select Committee in their rejection of Miss Rathbone’s Bill in 1938.^[32]

(6)    Forced heirship is an anachronism and can lead to perverse results.

Jersey’s rules of légitime are seemingly over three hundred years old and so perhaps it is no bad thing to question whether they are still needed in today’s society. The composition of families has changed markedly over time; families headed by a single parent, an unmarried couple or a same sex couple are now far more common than was once the case.  In turn this has led to a rise in the number of co-habitees, illegitimate children and step-children who may not be entitled to make a forced heirship claim even though the de cujus genuinely regarded them as his or her  “spouse” or “child”. Those who oppose forced heirship are quick to note that it can give rise to exaggerated situations that seem to run contrary to common sense^[33] but do extreme cases always indicate the existence of bad law?

(7)    Unrestricted testamentary freedom enables testators to benefit members of their extended family and to differentiate between them.

True enough - but opponents argue that it does not necessarily follow that testators will do this task well!

(8)    The forced heirship rules may be avoided with only a modest amount of effort.

As we have already seen Jersey domiciled testators can easily avoid the rules of légitime by either converting all of their meubles into immeubles or changing their domicile.  Resort is sometimes made to joint accounts or jointly owned property to circumvent the forced heirship rules and, it has to be said, to avoid the time and expense of taking out Probate.  Typically a husband and wife place all of their meubles in joint names expecting that on the death of the first the property will pass to the survivor by operation of law.^[34]  All such arrangements only appear to succeed because they are not questioned.  Indeed there is some authority to suggest that a deliberate attempt by a Jersey domiciled person to evade the rules of légitime, for example by making an inter vivos settlement of property, gives rise to a cause of action in the hands of the heirs-at-law.^[35]

Arguments for forced heirship and against testamentary freedom

(1)    Forced heirship promotes family bonding, stability, solidarity, harmony and responsibility and hence deters claims to set aside wills.^[36]

The argument runs that forced heirship creates family bonding and a sense of responsibility for future generations. Other commentators disagree with this assertion noting “the comparative ease with which individuals can and do move into and out of family relationships.”^[37]

(2)    The forced heirship claim is a cheap and simple procedure.

In Jersey an action seeking the cancellation of a will or a reduction ad legitimum modum of the bequests it contains is started by means of a simple summons;^[38]a very cheap and quick means of starting the legal process.  Supporters of forced heirship regimes have contrasted this with the fact that a judicial discretion system requires a lawsuit to be activated, thus, they argue, increasing litigation in already overworked judicial systems.^[39]  This might not be as much of an issue of one would think because one commentator has documented that, at least in New Zealand, a “climate of decisions” has generated predictability for estate planning and avoidance of frivolous suits and that voluminous lawsuits “have not materialized.”^[40]

(3)    Forced heirship recognises the fact that a person, while alive, is not totally free to dispose of his property as he pleases and that therefore these restrictions should continue after his death.

Hand in hand with this argument is the point that forced heirship ensures that certain obligations are met by the testator not by the state.^[41]

(4)    The forced share regimes recognised that in reality the deceased was not the sole owner of the property, but was a co-owner of it with his family whose efforts helped to produce it.^[42]

This argument is based on the historical idea of the family as a single economic unit but one has to question its merit in Jersey’s modern, service based (as opposed to agricultural or industrial) economy with its well developed and enforced protective child labour laws.

(5)    Restrictions on testamentary freedom lead to a more equal distribution of wealth and prevent concentration of wealth through primogeniture.^[43]

This argument was examined with some care by Wedgewood who concluded that a system of fixed shares would only have a very marginal effect on the distribution of wealth, which would be essentially to equalise the distribution within the higher social classes rather than between social classes.^[44]

CONCLUSION

In sum, several of the reasons put forward on both sides are illusory, less than satisfactory or outdated.  One is left to question whether the benefits of forced heirship, such as the simple application process, the certainty of the rules of légitime and the protection of the surviving spouse and the children (either in their expectations or their actual needs) are as relevant for Jersey domiciled people today as they were for the previous dozen or so generations of their ancestors.  Anecdotal evidence would tend to suggest that they are not.^[45]

The abolition of the rules of légitime and the introduction of a judicial discretion system would irrevocably sever a large number of the Island’s customary law roots and represent a significant step away from customary and “civil” law principles which have guided and shaped the Island’s coûtume hitherto towards newer ideas derived, by and large, from the Commonwealth.  Furthermore if the rules of légitime were to be swept away as part of a desire to introduce more testamentary freedom it would seem logical to conclude that the last vestiges of the customary law which preserve la conservation des biens ought to be abolished at the same time. The concept of rapport à la masse would be an obvious target and possibly the ancient rights of douaire and viduité as well.  For some, this will be a price which they are not willing to pay for the extra testamentary freedom over their meubles.  On the other hand the different ways in which Jersey domiciled testators are presently permitted to deal with their meubles and immeubles are incongruous and hard to justify, especially when for most couples their main asset is their matrimonial home, usually an immeuble, over which they have almost complete testamentary freedom.

In the final analysis testamentary freedom and inheritance rights are just two sides of the same unmalleable coin and the debate as to which side should be placed face up is ultimately unresolvable in an objective sense; instead one has to decide subjectively the extent to which one’s property belongs to oneself or one’s family. So if the Legislation Committee decides to press ahead with its proposals then expect to see a fascinating game of “heads or tails” being played in the States of Jersey.

Keith Dixon is an advocate of the Royal Court and an associate of Ogier & Le Masurier, Whiteley Chambers, Don Street, St Helier, Jersey.

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