Légitime reform: lessons from
different systems of protection from disinheritance (Part 1)
This article is based
recent report by the Law Officers’ Department on issues
arising from proposals to reform or abolish légitime, Jersey’s system
for giving fixed minimum rights to spouses, civil partners and children where
the deceased dies testate. Using a comparative law analysis, it is argued that
the question is not one of modernity but of different
philosophical approaches to the claims of relatives. Common law jurisdictions tend to use a “court-based discretion”
system to provide a safeguard to dependants and close relatives; civil law jurisdictions tend to provide “fixed
rights”. Within such systems there is considerable variation as to what
the rights should be. Jersey’s légitime system often fails to uphold fairness between children, suggesting a
need for reform entirely separate from arguments as to whether should be a “fixed
rights” system. However, the English court-based discretion system has
considerable uncertainty in its application. If, on the other hand, the aim is
to meet the financial services concern that “forced heirship”
deters high net-wealth individuals coming to Jersey, this could readily be met
through trust planning without creating concerns as to a two-tier system of law.
1 Légitime is the Jersey law doctrine which
provides what the Scottish Law Commission termed as “protection from
but has often been described perhaps more pejoratively as “forced
heirship”. This article is an edited version of the Law Officers’ Department report on the subject, containing
arguments for and
against abolition and
options for reform.
2 Most legal systems provide some measure of
protection from disinheritance. Those who can claim protection vary, as does whether such protection is
given as of right. Broadly speaking, such systems of protection divide into two
A “fixed rule
system”. Under such a system, certain relatives (typically children and
spouses but sometimes the net is thrown wider) have clear entitlements as
against testators that a court will uphold in any ordinary circumstance.
A “court-based discretionary system”.
This is one where
individuals with particular family or dependency relationships with deceased
can challenge the adequacy of their recognition in the deceased’s will.
The court’s order will not depend on any fixed rule but on a
discretionary application of statutory or case-law criteria applied to the
court’s finding of the facts of the case.
3 Although both approaches effectively curtail
testamentary freedom, a “court-based discretionary system” takes
testamentary freedom as its starting point with relatives and dependants having to show a positive case as
to why they should have inherited more than they did. A testator who wishes to
wholly or partially disinherit a child, for example, can do so knowing that
there is at least a chance (and often a considerable chance) that their wishes
will be respected if challenged. A “fixed rule system” provides a
positive entitlement to be recognised in a will. A testator wishing to
disinherit someone with such entitlements will know that their intentions would
not survive a challenge. For those reason, a “court-based discretionary
system” will typically be seen as more conducive to testamentary freedom,
although the extent to which it is so will depend on the precise nature of the
systems being compared.
Controversy tends to focus on the position of children rather than spouses. The
position of spouses as having a moral claim on the testator’s property is
different, and draws comparisons with the adjustive jurisdiction on divorce in
that it is more a matter of how to meet the “legitimate aspirations of
the spouse” instead of philosophical questions as to whether such
aspirations arise as regards children.
4 In Jersey, the children and spouses (by which
we include civil partners) of the deceased have fixed minimum rights of
inheritance in respect of a testator’s movable property but children have
no rights in respect of a testator’s immovable property. We shall set out
later at length what these rights are—but the focus of this article will
understandably be on the system of légitime
as it affects children of the deceased.
5 The issue has arisen frequently in Jersey
during the last 20 years. In 1999, the issue reached the direct attention of the States
Assembly principally in the context of how Jersey’s law of succession
dealt with the position of illegitimate children. But in 2003, a unanimous
decision of the States approved a proposition to adopt the English approach to protection
against disinheritance as well as equalise the position of legitimate and illegitimate
children. Despite that apparent unanimity, the Legislation Committee reined
back when presented with a concrete plan to put such radical reform into
effect. Suffice it to say, in 2010, only the legitimacy issue was dealt with by
legislation, and the remainder of reform left for a still outstanding “phase
two”. The issue has re-emerged in the context of financial services
interests: Jersey is seeking to attract people of high net wealth to come to
the Island, and some of these are apparently deterred by the prospect of being
obliged to leave large sums of money to their children.
6 The immediate spur for the Law Officers’
review of Jersey’s law on légitime
was a paper in 2016 from Jersey Finance Ltd on the subject.
It also followed a consultation from Jersey’s Trust Law Working Group
which included questions on légitime.
It will be necessary to refer to those papers in order to consider adequately the objections to légitime that are at the fore of
the debate in Jersey. However, questions raised in particular by Jersey Finance
Ltd as to the importance of historical States Assembly decisions are of little
importance to a consideration of inheritance law but are rather issues of
Jersey’s political and constitutional dynamics. The focus of this article
is very much on the former.
7 A particular interest in the subject arises
from Jersey’s position as a mixed jurisdiction. The Island has a
customary and civil law heritage sitting alongside an increasing common law
influence. Part of the Island’s customary and civil law heritage is that,
like continental Europe, Jersey gives automatic inheritance rights to children
and spouses. But, for some of the population, this will appear anomalous, being more familiar with the
English approach of greater testamentary freedom, where it is only in cases of
strong moral entitlement that a child will be able to successfully challenge a
parent’s will. The matter becomes particularly acute for Jersey as people
of high net wealth move from England to the Island—and for some the possibility of
being forced to leave millions of pounds to their children is a distinct
disadvantage: hence the financial services interest in the subject.
8 This article will be split into two parts by
reason of length. The
first part will concentrate on the nature of legal protections against
disinheritance and a comparative analysis of relevant jurisdictions. Between
the sections dealing with those themes will be a Jersey-specific explanation of
légitime, and a brief history
of the recent consideration of it abolition and/or reform. Part two of the
article will use the material in part one to set out the issues around the possible abolition or reform of légitime. The single most
important theme is that there is no right or wrong answer, nor any solution
that can claim to be more modern. Issues around testamentary freedom are
ultimately ones of social values rather than objective right or wrong. Although
Jersey cannot ignore the particular “financial services” issues
thrown up by the position of incomers of high net wealth, it is a broad social
question of what the people of Jersey believe is right for their own society.
A. Nature of the policy question
9 Before dealing with Jersey itself, it is useful
to make a detour to Scotland (and thence to New Zealand) in order to explain
something fundamental about the issues at hand: the fundamental decision is one
of policy and social philosophy, not one of law.
10 It is worth emphasising that there are always
limits on how far to look to other jurisdictions for inspiration or as
justifying domestic law reform. There may be cultural differences which mean
that what is morally obvious in one country may be anathema in a neighbour.
This is never more true than in the area of testamentary freedom.
11 Albert Venn Dicey, in his treatise on the
impact of public opinion on legislation, compared the stark differences between
English and French attitudes on testamentary freedom—
truth, the equal division of a man’s property among his descendants or
his nearest relatives at his death, though almost essential to the maintenance
of small estates, is thoroughly opposed to that absolute freedom of
testamentary disposition to which Englishmen have so long been accustomed that
they have come to look upon it as a kind of natural right
. . .
democracy is opposed to differences of rank involving political inequality. The
very foundation of the French political and social system is the existence of a
large body of small landed proprietors, or, to use English expressions, of
small freeholders. Testamentary freedom, in the English sense of the word, is
unknown. The systematic and equal division of a deceased person’s
property among his family thoroughly corresponds with French ideas of justice,
and prohibits that formation of large hereditary estates which has long been a
marked feature of English social life.”
12 It was not that England was right and France
was wrong (or vice versa). It was rather that history had
made local attitudes and behaviour different. But that we should not presume
that testamentary freedom is “modern” and fixed rights are archaic
is shown by the BBC recently including two posters denouncing the results of
testamentary freedom amongst a selection of suffragette posters. Testamentary
freedom meant the right to leave widows penniless, and to favour a single son
over any number of daughters.
This contrasted with France, where neither scenario was possible.
13 This must be borne in mind when the question of
succession law reform is considered. It is not a question of what works in
England, or what is right for England; nor what is right or works for Scotland.
It is a matter of what is right and works for the people living in Jersey.
(ii) Scottish review of its system
14 The Scottish Government in a recent
consultation on its very similar area of law, having noted the lack of any
support in Scotland for absolute testamentary freedom, said—
terms of any changes to the law, the tension therefore lies between striking
the appropriate balance between individuals having freedom to leave their
property to whoever they want and giving family some rights to receive an
15 This is important to bear in mind. It is not
simply a question of whether Jersey should support testamentary freedom by
enacting a court-based discretionary system of “reasonable provision”,
as exists in England or Wales, or maintaining the existing system of légitime. Unless the policy
decision is to implement absolute testamentary freedom, any system adopted will
both infringe testamentary freedom, and also be limited in terms of the
protection given to spouses/civil partners and children. The question, which is
quintessentially a policy question, is where to strike the balance. There are
many variants on the basic “court-based discretion” and “fixed
rights” systems—it is not necessarily a binary choice between English legislation
and the Jersey status quo.
16 Very detailed work by the Scottish Law
Commission and the Scottish Government highlights the currents and
cross-currents of different opinions in this area. At the heart of the idea of
protection against disinheritance is the idea that an individual can be meaningfully
described as entitled to receive anything in their parent’s will. The
Scottish Law Commission said the following on the concept of disinheritance—
In one sense persons cannot be disinherited as no-one has an indefeasible right
to succeed to another’s estate. However, we have seen that when a
person dies intestate the law identifies the members of the deceased’s family who are his heirs and who
are entitled to succeed to the estate. But if the deceased makes a will, these
default rules are displaced and the estate will be distributed to the
beneficiaries chosen by the deceased in his will. To that extent we can say
that the persons who would have succeeded under the rules of intestate
succession have been disinherited by the will. Further, it can be argued that
certain relatives of the deceased, for example a spouse or a civil partner or
children, have a moral right to inherit at least a share of the deceased’s estate. If the deceased fails to
make provision for them in his will, such persons may feel that they have been
disinherited. While neither rationale is entirely compelling, nevertheless, the
idea of disinheritance is one in general use and we have decided to use the
17 The Scottish government noted that there were
strong feelings amongst some parents that “they cannot prevent children
having a right to part of their estate on death, especially those who are
The possibility of creating different entitlements for children depending on
whether they were dependent or not was considered. Yet
the government also noted that “in discussion only one group came out
very strongly in favour of not protecting adult children.”
18 What needs to be underlined is that the
Scottish Law Commission found that opinion was so varied in Scotland that it
did not feel able to make a recommendation. The Scottish government recorded in
its 2015 consultation—
responses they received were ‘sharply divided’ and the Commission did not make a
specific recommendation in this regard. Instead, the Report offers two options
for further consideration.”
19 We shall consider those recommendations and the
current Scottish system in due course.
(iii) The New Zealand Law Commission
20 A report by the New Zealand Law Commission set
out the competing factors for why courts might intervene in respect of the
disinheritance of children, demonstrating that some factors support a
conclusion of equality of inheritance, others suggest provision according to
need, and others support the denial of inheritance on behavioural grounds. The
New Zealand Law Commission said—
Courts appear to have before them the following objectives. Any one of them may
prove decisive in the particular case.
• To acknowledge the
The objective here is to symbolise the bonds which ought to exist in the ideal
family, and to strengthen them by insisting that the will-maker acknowledge
them without regard to the real state of affairs between parent and child.
• To reward the child’s good conduct or compensate the child for the
will-maker’s bad conduct. The objective here is to encourage the child to act dutifully to the
will-maker, and to compensate the child for defects in its upbringing.
• To protect a child who is in need. The objective here is to help people in need,
and to symbolise the family as the source of that help.
things may usefully be said about these policy objectives. The first thing is
that two of them at least (the first and third) draw on ‘symbolic’ values, there being no suggestion
that any specific improvement in family life or in the public welfare is
necessarily achieved by an award, beyond saving the State the cost of welfare
payments. The social effects of what is being done are likely to be
speculative. True, symbolism can be important and useful if it is known and
acted upon by the general public in ordinary life. However, it is not clear
that the present judicial practice is known and acted upon by the general
public in ordinary life.
second is that the objectives conflict, even when resolving the most basic
family protection issues. Take for example a will-maker who has two children, A
and B. A is in need, B is not. Neither has been attentive to the will-maker in
the will-maker’s old age. Both have been disinherited. Under the first
objective, they would share equally in the estate, or part of it. Under the
second objective, neither would get anything. Under the third objective, only A
would receive a share. Which of these objectives is to be preferred, according
to current practice?”
21 This is another fair account of the different
considerations that are valid to take into account when adopting or amending a
system of protection against disinheritance.
(iv) New Zealand thesis
22 A useful summary of arguments and a
demonstration of the cultural dynamic described by Dicey is found in a 2010 Masters’ thesis from New
Zealand. The question under consideration in the relevant section was the advantages of a “fixed rule system”
where the protection from disinheritance was based on set legal rights, and a “court-based
discretionary system”, where the system was based on a court’s decision
as to fairness or reasonableness measured according to qualitative criteria. The thesis
relative merits and deficiencies of both systems have been discussed in recent
reports by the Scottish Law Commission and by the New South Wales Law Reform
Commission. The English Law Commission also considered that it would be
undesirable to change laws of estate distribution in such a way as to cause
more applications to Court for greater provision. The comparative merits and
defects of the two contrasting systems are:
• The advantages of a fixed rule scheme are
certainty and convenience. People can prepare wills with knowledge of the
likely outcome. The delays, costs and inconvenience of litigation are minimised
as are the costs and time involved in estate administration.
• The major disadvantage of a fixed rule scheme
is rigidity. Unlike the court-based discretionary system, factors such as the
conduct of the parties and the competing needs of claimants and beneficiaries
are usually irrelevant in fixed rule schemes.
• Another disadvantage of a fixed share system is
that it is usually limited to a small number of classes of claimants. Unlike a
court-based discretionary system, a fixed share system usually provides for
only a small list of parties.
• A further disadvantage of a fixed rule scheme
is that an owner of property is deprived of the ability to decide what is to
happen on death to property that in many cases he or she has acquired and
developed. An unwanted and possibly undesirable regime is imposed on the property owner.
This has meant, in the case of farms or large blocks of land, fragmentation of
ownership amongst a person’s heirs rather than retention by an heir of
choice; this has led in turn to inefficient and problematic use of the land.
• The advantages of a court-based discretionary system are flexibility and
the ability to take into account many factors in different situations. Also,
awards can take various forms such as lump sum payments, transfers of property
or periodical payments.
• The disadvantages of a court-based discretionary system are uncertainty
and inconvenience. While previous decisions provide some guidance, the outcome
depends very heavily on the particular circumstances. A discretionary system
also provokes litigation and the consequent cost, delay and upheaval at a time
when the family are still adjusting to bereavement.
• Experience with court-based discretionary systems has shown that the class of those who can
claim widens according to changing social mores. As one report notes:
Once a Court is given power to override the testator’s discretion and impose its own
discretion in accordance with broad principles of equity, it becomes difficult
to argue that such principles should be restricted only to some specific cases
and not to others. Non-relatives for instance may be more deserving of and
dependent on the testator’s bounty than relatives.
Scottish Law Commission favoured retention of a fixed rule scheme for surviving
spouses and civil partners but recommended a discretionary court-based system
for dependent children and cohabitants. In contrast, the New South Wales Law
Reform Commission favoured retention of a court-based discretionary system;
however, it also recommended reduction of the classes of potential claimants
under this system.”
looking at the system, it is not just that each approach has its own advantages
and disadvantages but that each system mirrors the other in its advantages and
disadvantages. A fixed-rule system gives certainty at the cost of rigidity; turn these
characteristics on their heads, and we have a court-based discretionary system offering flexibility at
the cost of unpredictability.
23 The Scottish Law Commission would, as we shall see, present options for
different levels of change, but retaining
a fixed rule system. The New South Wales Law Reform Commission proposed
retaining its court-based discretionary system. Although both commissions were
addressing the same dilemmas, they stayed close to the ideas which were
established in their locality.
B. Nature of légitime
(i) General rules
24 The historic nature of légitime is as a protection against disinheritance of
spouses (and now also civil partners) and children (which now includes
illegitimate children). Although the principle dates back centuries in Jersey
law, the entitlements are now codified by art 7 of the Wills and Succession
(Jersey) Law 1993.
25 The Jersey Law Course Succession Study Guide,
succinctly explains the basic legal entitlements.
situations need to be considered:
the testator is survived by a spouse or civil partner only;
the testator is
survived by a spouse or civil partner and issue; and
the testator is survived by issue only.
first case the surviving spouse or surviving civil partner shall be entitled to
claim légitime of the
household effects and two-thirds of the rest of the net movable estate.
second case the surviving spouse or civil partner shall be entitled to claim légitime of the household effects
and one-third of the rest of the net movable estate, and the issue shall be
entitled to claim one-third of the rest of the net movable estate.
third case the issue shall be entitled to claim as légitime two-thirds
of the net movable estate.”
26 Historically, légitime did not apply as between a father and his
illegitimate children. Considerable doubts as regards the moral justification—and European Convention of Human Rights compatibility—were raised. In particular Professor Meryl Thomas advised the Jersey
Community Relations Trust that there was no justification in terms of human
rights jurisprudence for excluding illegitimate children who have been
recognised by their father.
Articles 8A and
8B of the Wills and Succession (Jersey) Law 1993 were inserted so that all
illegitimate children stand alongside legitimate children for all
27 It is also established Jersey law that adopted
children are treated equally with natural children for these purposes.
28 The only exception to the principle that all
children of the deceased are treated equally for légitime purposes is when the legal link between biological
parent and child is broken by a subsequent adoption. Where children are
adopted, they become a full part of their new family, and have no legal
relationship with the biological family.
(ii) Position of grandchildren
29 For simplicity, this paper will generally talk
in terms of “children” rather than “issue”. However, it
should be stressed that, for the purposes of légitime, if a child dies before the parent,
then that child’s share will itself be divided equally amongst his or her own children, if any. This is called representation. Where a child of the testator has predeceased the testator, then
that child’s own children (i.e.
the grandchildren of the deceased) stand in his or her shoes. The same
principle applies if both a child and a relevant grandchild have predeceased
30 However, for present purposes, it is doubtless
sufficient to think solely in terms of the entitlement of spouses, civil
partners and children. Where it is possible without creating difficulty, reference may be made to
normally the testator’s own children will be alive, so more distant
descendants (i.e. grandchildren,
great-grandchildren, etc) are
irrelevant at that point.
(iii) Relevant property
31 It must be emphasised that légitime applies only to the movable estate—which means everything that Jersey law does not class as “immovable
property”. This means everything other than the ownership of land in
Jersey, entitlements under leases in Jersey land of over 9 years, and a few
sundry rights which are less likely to be relevant. We
shall generally assume that immovable property means land. Légitime thus applies to, for example—
(a) all bank accounts;
(b) all shares;
(c) any motor vehicles;
(d) all livestock;
32 Irrelevant for légitime purposes will be a house in Jersey, or the rights
under a long lease. Such property is immovable property, and thus falls outside
the scope of légitime.
33 The only protection against disinheritance in
Jersey as regards immovable property is given by the rights of dower and rights
in the nature of dower enjoyed by surviving spouses and civil partners. Under
such rights, subject to narrow exceptions, the survivor is guaranteed a usufruit (essentially a life interest)
in the matrimonial home regardless of whether the deceased had provided
otherwise in his or her will.
Other than this, a Jersey testator has absolute testamentary freedom as regards
land in Jersey—which for those other than the very rich means absolute freedom as
regards the bulk of the testator’s property.
34 The effect of this is that it is possible for a
testator to avoid légitime by
buying land in Jersey and thus converting movable property into immovable
This would, of course, often have potential inconvenience to the testator in
converting in their lifetime liquid assets into a speculation on property.
Such a strategy is only available insofar as a testator can in practice convert
their liquid assets into Jersey property, which will be less practical for
those of high-net wealth who wish to avoid légitime in respect of potentially very many
millions. It would not just be the availability of sufficient Jersey property but
the disadvantage of turning doubtless diverse investment portfolios in a single
type of asset.
(iv) Equality between entitled persons and “disposable
35 It should be noted that the consequence of légitime is not just protection
against disinheritance but also achieving a significant amount of equality
between the affected persons—
(a) Where there is a spouse/civil partner and children, the amount that goes
to the spouse/civil partner is the same as the entirety that goes to the
Where there is an
entitlement for children, the entitlement is to equal amounts.
36 However, légitime
applies to two thirds of the movable estate. It
does not apply to the remaining one third, which can be given to
favoured children or to third parties. In respect of this one third share (“the disposable third”), the testator has
complete testamentary freedom. At all events a testator may—deliberately—exceed his or her testamentary
powers but specifically request in the will that his or her wishes
be respected. The will remains effective in such a case if neither the
spouse/civil partner nor children seek to attack the will
and reduce it ad legitimum modum.
Action for reduction
of the will “ad legitimum modum”
37 Where a person has not been given their
entitlement under légitime,
they may bring an action for reduction of the bequests in the will so as to
meet the legal entitlement. This procedure is known as reduction ad legitimum modum. Writing in the Jersey Law Review, Advocate Keith Dixon described the procedure as
“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; 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
38 As will be seen later, and as set out by
Advocate Keith Dixon, this is a key advantage of the present system.
à la masse”
39 Légitime, or rather its direct Scottish equivalent of “legitim” is
described by the Scottish Law Commission as “protection against
disinheritance”. Historically, many parents have often wished to
disinherit a child, or at least to favour one child over the others above and
beyond what can be done with the “disposable third”. Parents have
thus often sought to avoid the requirements of giving légitime to their children by giving gifts when still alive.
It is something addressed in one Jersey’s oldest sources of law, L’Ancien Coutumier—
“L’en doibt scavoir que, quand le
père a plusieurs fils, il ne peut pas faire de son héritage l’un
meilleur de l’autre: mais après sa mort, tout ce qu’il aura
donné à aulcun d’eux sera rapporté à partie
[Trans: Please note that when a father has several sons, he cannot confer a
benefit on one son to the prejudice of the other: for after his death, all that he had
given to any one of them shall be brought back into the estate and divided
40 To meet this problem, customary law allows a
remedy known as rapport à la masse.
It is unnecessary to deal with the detail of this doctrine. Those who would be
entitled to légitime but
received gifts from the deceased prior to his or her death, are viewed as
having received an advancement on their inheritance. Their co-heirs—i.e. the others who are entitled to légitime—are
entitled to apply to the court to make the beneficiary return the property or
equivalent value to the estate, so that it can be shared out equally.
41 It should be noted—
Money given by a parent
in respect of clothing, food, education and the like do not count as gifts for
The will is valid until
challenged by an aggrieved person. It is quite normal for wills to go
unchallenged where the family agree that one sibling is entitled to more, or
there is no objection amongst the children to their mother taking everything.
The doctrine applies in
respect of gifts to spouses as well as to children.
applications for légitime
and/or rapport à la masse tend
to be made by children in respect of younger second wives. This is partly
because these tend to be more difficult situations in terms of family
relations, and also because the second wife will be free to disinherit her
step-children even in respect of ancestral property formerly belonging to the
There is authority that
an ungrateful son, or acts of conspicuous neglect by a spouse, may lead to a
loss of a claim for legal rights against a testator. There is the case of Le Gros v Paroisse de la Trinite,
where a wife who deserted her husband on his deathbed lost her claim to légitime. The same was the case
where a son made an unfounded accusation that his father had committed a crime,
see Maret v Dolbel.
A similar principle is found in the French and other Civil Codes. However, even
assuming that the doctrine has survived the recent statutory codification in
the Wills and Succession (Jersey) Law, such a doctrine would only apply in
respect of conduct which today would be similarly scandalous. It would not
stretch to a parent wishing to restrict a child’s inheritance on the
basis that they are a wastrel or a do-nothing, let alone on the basis that the
parents believe children should stand on their own two feet.
There is a statutory
restriction in respect of spouses and civil partners. They cannot claim légitime where they are separated
from the spouse under a court separation order. The same applies where there is
separation without such an order but only where the surviving spouse/civil partner
deserted the deceased “without good cause”.
The principle does not
apply in respect of gifts to third parties.
42 Rapport à la masse is based on the theory that gifts from parent to child are an avancement of succession, i.e. that the child is receiving their
inheritance early. It thus achieves equality between the children, and upholds
the balance the law seeks between provision for surviving spouses/civil
partners and children. This theory, and its difficulties, were set out by
Lord President Strathclyde when describing the direct equivalent in Scottish law, the doctrine of collatio bonorum
inter liberos —
“Its basis is a double fiction. It assumes that the
father has paid a part or the whole of his indebtedness at a time when no relationship
of debtor and creditor existed between the father and the child. It further
assumes that the payment is made out of the legitim fund although confessedly
the legitim fund is at the time non-existent.”
The Scottish court thought that, given its artificial
assumptions, the doctrine could not be developed by the courts by analogy.
C. Comparative analysis
43 The analysis in this section does not purport
to be a full comparative analysis of all potentially relevant jurisdictions. It
deals with the position in the United Kingdom and the remainder of the Channel
Islands. It deals with two other Commonwealth jurisdictions where the matter
has been subject to significant recent consideration. From there it moves to an
analysis of the law in all other EU jurisdictions—this part of the review was able to
be exhaustive because of the ease of reference provided by the European Union’s
44 The system in England and Wales is of
particular interest in this paper. It was the system essentially recommended to
be adopted by the States Assembly in P.121/2003 at the height of Jersey
discussions on the reform of légitime,
although subsequent legislative action was limited to extended protection to
45 The English law in respect of protection
against disinheritance was recently explained by the UK Supreme Court as
“1. Unlike some other systems, English law recognises the freedom
of individuals to dispose of their assets by will after death in whatever
manner they wish. There are default succession rules in the event of intestacy
but by definition those only come into play if the deceased left no will.
Otherwise the law knows of no rule of automatic succession or forced heirship.
To this general rule, the statutory system of family provision imposes a
qualification. It has provided since 1938 for the court to have power in
defined circumstances to modify either the will or the intestacy rules if
satisfied that they do not make reasonable financial provision for a limited
class of persons. That power was first introduced by the Inheritance (Family
Provision) Act 1938 (‘the 1938 Act’). The present statute is the
Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’).
2. The key features of the operation of the 1975 Act are four. First, it
stipulates no automatic provision; rather the will (or the intestacy rules)
apply unless a specific application is made to, and acceded to by, the court
and a specific order for provision is made. Second, only a limited class of
persons may make such an application; they are confined to spouses and partners
(civil or de facto), former spouses and partners, children, and those who were
actually being maintained by the deceased at the time of death. Third, all but
spouses and civil partners who were in that relationship at the time of death
can claim only what is needed for their maintenance; they cannot make a claim
on the general basis that it was unfair that they did not receive any, or a
larger, slice of the estate. Those three features are laid down expressly in
the 1975 Act. The fourth feature is well established by case law both under
this Act and its predecessor of 1938. The test of reasonable financial
provision is objective; it is not simply whether the deceased behaved
reasonably or otherwise in leaving the will he did, or in choosing to leave
none. Although the reasonableness of his decisions may figure in the exercise,
that is not the crucial test.”
46 The key advantages of the system are in its
flexibility both in terms of who can apply for relief, in the relief to be
given, and in the relevant factors.
47 Whereas Jersey’s system of légitime has clear and precise
boundaries as to who may make an application, the English system provides for
the following to make an application—
spouse or civil partner of the deceased;
(b) a former spouse or former civil
partner of the deceased but not one who has formed a subsequent marriage or
person living in the same household as husband or wife];
child of the deceased;
person (not being a child of the deceased) [who in relation to any marriage or
civil partnership to which the deceased was at any time a party, or otherwise
in relation to any family in which the deceased at any time stood in the role
of a parent, was treated by the deceased as a child of the family;]
person (not being a person included in the foregoing paragraphs of this
subsection) who immediately before the death of the deceased was being
maintained, either wholly or partly, by the deceased . . .”
48 Hence, this allows for consideration of the
position of step-children, co-habiting partners, and the claims of financial
relationships of dependency which may arise from other relationships.
49 In terms of what may be ordered, there is again
“(a) an order for the making to the applicant out of the net estate
of the deceased of such periodical payments and for such term as may be
specified in the order;
order for the payment to the applicant out of that estate of a lump sum of such
amount as may be so specified;
order for the transfer to the applicant of such property comprised in that
estate as may be so specified;
order for the settlement for the benefit of the applicant of such property
comprised in that estate as may be so specified;
order for the acquisition out of property comprised in that estate of such
property as may be so specified and for the transfer of the property so
acquired to the applicant or for the settlement thereof for his benefit;
order varying any ante-nuptial or post-nuptial settlement (including such a
settlement made by will) made on the parties to a marriage to which the
deceased was one of the parties, the variation being for the benefit of the
surviving party to that marriage, or any child of that marriage, or any person
who was treated by the deceased as a child of the family in relation to that
order varying any settlement made—
the subsistence of a civil partnership formed by the deceased, or
anticipation of the formation of a civil partnership by the deceased,
on the civil partners (including
such a settlement made by will), the variation being for the benefit of the
surviving civil partner, or any child of both the civil partners, or any person
who was treated by the deceased as a child of the family in relation to that
civil partnership . . .”
50 There is thus an obvious argument that this
provides something better than the “one size fits all approach” of fixed percentages of the movable estate.
51 As for the question of reasonable provision,
the Act is clear that the court should take into account issues both of
financial need and the nature of the relationship between the deceased and the
person challenging their provision under the will or in intestacy, as well as
competing claims of other persons:
“(a) the financial resources and financial needs which the
applicant has or is likely to have in the foreseeable future;
financial resources and financial needs which any other applicant for an order . . . has or is likely to have in the
financial resources and financial needs which any beneficiary of the estate of
the deceased has or is likely to have in the foreseeable future;
obligations and responsibilities which the deceased had towards any applicant
for an order . . .
towards any beneficiary of the estate of the deceased;
size and nature of the net estate of the deceased;
physical or mental disability of any applicant for an order . . . or any beneficiary of the estate of
other matter, including the conduct of the applicant or any other person, which
in the circumstances of the case the court may consider relevant.”
Advantages in respect of this model
52 If there is to be a shift towards testamentary
freedom and against fixed minimum entitlements, then there are advantages to
Jersey in adopting this model:
It provides for
flexibility of response.
It also deals with
questions of reasonable provision, which is only partly a function of the fact
of a parental or spousal relationship.
If the policy is to
create a discretion, the English model comes with an accessible jurisprudence—albeit a jurisprudence of somewhat
Insofar as there is
concern that people of high net wealth are deterred from moving to Jersey due
to restrictions on testamentary freedom, most such persons will be moving from
England and Wales so will be familiar with the approach.
If the policy is to
place greater emphasis on testamentary freedom, the English approach as noted
by the Supreme Court in Ilott has
such freedom as its starting point.
53 The most important arguments in favour of the
English approach are ones of policy, and even personal philosophy. It is the
question of whether the claims of spouses/civil partners and children are
matters which ought to be recognised as routine, or whether testators should
have freedom over their own property and be entitled to decide where their
money should go. For example, as noted above, the doctrine of légitime historically allowed for
the Royal Court to reject claims by children who have behaved badly towards their
In the English system, it is the testator who decides on issues of worthiness,
and only in exceptional cases (where usually need comes much higher than
questions of what is deserved) will the court become involved.
54 If the policy decision is in favour of
testamentary freedom but reserving a power for the court to make adjustments in exceptional
cases, then the English approach is to be recommended as providing an
established model with an accessible jurisprudence. If this is the policy, then
it might be thought of as the only option realistically in play. It would
doubtless be possible to make changes to the list of potential beneficiaries
but the core concept of “reasonable provision” would need to be
Need for inclusion of immovable
55 It must be stressed that the English approach
treats land and personal property just the same, whereas the current Jersey
system is only concerned with movable property.
56 It would be illogical to introduce the English
approach to Jersey without applying it both to the movable and immovable
estate. Currently, the system of légitime
does not take account of the division of immovable property.
Hence, no notice is taken of whether there is a fair division across immovable
and movable property taken as a whole: a child or widow may claim that they
have been denied their proper minimum share of the movable property regardless
of how much they might have been favoured in respect of the immovable property.
Unsurprisingly, as will be seen later that the
Scottish Law Commission has proposed reforming Scotland’s equivalent to légitime (“legitim”)
so as to include the entirety of the estate. Conversely, “reasonable
provision” as a concept must address the entirety of the estate.
How has the English/Welsh system
performed in practice
57 In 1979, when legislation for
Northern Ireland was laid before the House of Commons to introduce an
equivalent of the Inheritance Act 1975, a question was asked as to how well the
legislation had worked in England and Wales. The Minister replied—
right hon. Member for Down, South asked about the experience in England and
Wales. The Lord Chancellor is content with the operation of this legislation in
England and Wales since 1975. We hope that there will be a similar happy
experience in Northern Ireland.”
As will be seen, there are doubts in the experience in England and Wales
has proven quite as happy in the long term as it appeared in 1979.
58 Much of the following discussion of the
disadvantages of the English approach will revolve around the recent case of Ilott v Blue Cross. The
facts are usefully summarised in an article that followed the Court of Appeal decision—
Jackson died in 2004, leaving an estate worth £486,000. In 2002, she had
made a will in which she left a £5,000 legacy to the BBC Benevolent Fund
and divided the remainder of her estate between the Blue Cross, the Royal
Society for the Protection of Birds, and the Royal Society for the Prevention
of Cruelty to Animals (‘the Charities’).
Mrs. Jackson had also written a letter of wishes in which she explained her
decision to exclude her only daughter, Heather, from her will. Heather had left
home in 1978 at the age of 17, without her mother’s knowledge or agreement, in order to
live with Mr. Ilott, whom Heather later married. Mrs. Jackson clearly
disapproved of her daughter’s choice of lifestyle. Heather and her husband
had five children (the last one living at home, being due to go to university
in 2015) and lived in straitened financial circumstances. For example, Heather
never went on holiday, found it difficult to afford clothes for the children
and a range of food, and possessed many items that were old or second-hand.
Despite attempts at reconciliation, mother and daughter were estranged for some
26 years, and Heather was fully aware before Mrs. Jackson’s death that she was due to be
excluded from the will.”
59 The case had a long history, which amounts to
(a) At first instance, the daughter was awarded
£50,000 from the estate worth £486,000.
(b) On appeal to the Court of Appeal, the award was
increased to £143,000, with an option to claim a further capital sum of
£20,000. This would have enabled her to purchase the housing association property
in which she lived.
(c) At the Supreme Court, the original decision was
60 Perhaps the outstanding point to be gathered
from the decision was that the Supreme Court held that widely different
decisions could have been made by the first instance judge, and would have been
upheld on appeal. At para 44 of the main judgment we see that the Supreme Court
recognised that a trial judge could have (like the Court of Appeal) decided
that the daughter should receive enough to solve her housing needs—
some judges might legitimately have concluded that this was a case in which
reasonable financial provision for the claimant should be made by way of
housing . . .”
61 But at para 35 of the decision we see that the
judge could have held that there was no existing relationship between mother
and child in the circumstances to ground any
claim, and that the daughter’s application could have been dismissed
judges might legitimately have concluded that the very long and deep estrangement
had meant that the deceased had no remaining obligation to make any provision
for her independent adult daughter . . .”
62 Hence, the Ilott
litigation could have been decided by the daughter receiving anything
from £0.00 to
£143,000 or any amount in between.
General comments made in the Ilott case
63 Of importance from our perspective is the
concurring judgment of Baroness Hale in Ilott
v Blue Cross, with whom Lord Kerr and Lord Wilson expressly agreed.
64 Baroness Hale reviewed research into attitudes
in England and Wales towards testamentary freedom.
Baroness Hale commented:
It will therefore be seen that, unsurprisingly, there is a variety of reasons
why people believe that descendants should be entitled to a share of the
deceased’s estate. The bloodline or lineage is undoubtedly one of these,
and seems to have featured strongly in both studies. Another is need, whether
stemming from disability or poverty, although others felt strongly that
descendants should be treated equally irrespective of need. And a third is
desert, having earned a share by caring for the deceased or contributing
directly or indirectly to the acquisition of his wealth.
58. The point of mentioning all
this is to demonstrate the wide range of public opinion about the circumstances
in which adult descendants ought or ought not to be able to make a claim on an
estate which would otherwise go elsewhere. That range of opinion may very well
be shared by members of the judiciary who have to decide these claims. The
problem with the present law is that it gives us virtually no help in deciding
how to evaluate these or balance them with other claims on the estate. Nor does the Law Commission Report
which led to the 1975 Act. That Report recommended that any child or child of the
family of the deceased should be able to apply, irrespective of age, sex or
marital status, thus removing the restrictions imposed by the 1938 Act (para
79). The argument against doing that was that ‘it might encourage
able-bodied sons capable of supporting themselves to apply for provision from
the estate, thereby possibly incurring costs to be paid from the estate and
reducing the share of the surviving spouse or other beneficiaries’;
but the Commission argued that such sons (or even daughters!) could not succeed
unless the deceased had failed to make reasonable provision for them (para 74).” [Emphasis added]
65 Essentially, the creation of a judicial power
equivalent to that under the Inheritance Act 1975 means that everything depends
on the individual approaches of the judges. There is no clear legal principle
by which the courts can “correct”
a judge whose philosophy in these matters is libertarian or paternalist, for
both approaches can find a place on the spectrum of reasonable outcomes. This
does have the advantage of ensuring that Jersey judges—insofar as first instance decisions
will largely be taken by the Bailiff and Deputy Bailiff—are taken by Jersey lawyers who have
grown up as part of Jersey society. However, whether the small pool of
first-instance Jersey judges leads to consistency of approach or swings between
different ends of the reasonable spectrum depending on who takes the case, and will be a matter of chance at any
66 As a result, it can be said that the
Inheritance Act 1975 system creates an inherent uncertainty for testators. Brian Sloan of
Cambridge University, following the Court of Appeal decision, believed that
that decision was not unusual when compared with earlier cases. He also
stressed that anyone who “disinherited” a child created litigation
risks by doing so—
“It must also be borne in mind that, throughout the life of the 1975 Act,
it has been a calculated risk to ‘disinherit’ children who might need maintenance
in the future (c.f. spouses
and civil partners, whose valid claims are not limited to maintenance: 1975
Act, s. 1(2)(a)–(aa)), and that the deceased’s views and intentions have always been somewhat
relevant to but obviously not conclusive of, the appropriate level of provision
(see e.g. R. Kerridge, Parry and Kerridge: The Law of Succession,
12th ed. (London 2009), para. [8–31]). Ilott confirms those contentions but it
is by no means the most dramatic case in which provision has been made for an
adult child. In Re Land (deceased)
 EWHC 2069 (Ch), for example, an adult son successfully claimed provision
from his mother’s
estate notwithstanding his conviction for her gross negligent manslaughter and
the resulting application of the forfeiture rule (Forfeiture Act 1982, s. 1) to
his share under her will. Moreover, neither disapproval of lifestyle (Espinosa v Bourke  1 F.L.R. 747
(CA)) nor estrangement (Gold v Curtis
 W.T.L.R. 673 (Ch)) has inevitably prevented claims in previous cases.”
67 For these reasons, it is understandable that
Baroness Hale ended her concurring judgment in Ilott with these words—
“I have written this judgment only to demonstrate what, in my
view, is the unsatisfactory state of the present law, giving as it does no
guidance as to the factors to be taken into account in deciding whether an
adult child is deserving or undeserving of reasonable maintenance. I regret
that the Law Commission did not reconsider the fundamental principles
underlying such claims when last they dealt with this topic in 2011.”
thus appears that not only is the existing English law considered
unsatisfactory by the courts but that it is liable to be reformed.
68 As noted above in para 57, a direct equivalent to the
English Inheritance Act 1975 applies in Northern Ireland.
69 The Scottish Government Consultation gives a
clear description of the present Scottish law on protection against
disinheritance, which it calls “legitim”—
the current system a spouse/civil partner has legal rights and is able to claim
a third of the deceased’s moveable estate (cash, shares etc.) if the
deceased is also survived by issue. If there are no issue, that claim is to a
half of the moveable estate. Similarly, issue too have legal rights and are
able to collectively claim a third of the deceased’s moveable estate if there is also a
surviving spouse/civil partner. Where there is no surviving spouse or civil
partner, they can claim half of the moveable estate. These legal rights apply
to intestate estates once any prior rights have been satisfied.”
70 Scottish “legitim” is strikingly
similar to the Jersey system of légitime.
The shares are the same where there is both a widow/widower and issue (i.e. one third to the
surviving spouse/civil partner, and one third between
the children) but if there is only one such category their share increases to a half,
not to two thirds as in Jersey.
71 A key issue for the Scottish
government related to the avoidance of légitime
rather than the theory of the legislation—
current system of legal rights was described by the Commission as flawed. The
key issue is that the nature of the deceased’s property determines whether or not there is
estate available against which a claim can be met. As legal rights are claimed
on the moveable estate, an individual may be able to convert the bulk of their
estate into heritable property and so prevent, or at least limit, claims by
spouses/civil partners and children.”
72 This is similarly an issue as regards légitime in Jersey. As stated
above, it is possible for a testator to disinherit children by converting
movable property into land. This may involve cost and inconvenience such as to
deter testators who prefer the convenience of liquid assets in their lifetime,
or distrust land as an investment.
73 There is also the further point
that, if a person should be protected against disinheritance, it is counterintuitive
for the law to exclude from the relevant property what is usually the largest
part of a testator’s assets, i.e. the home. A parent who has
£100,000 in liquid assets and a house worth £2m is free to leave
the house to a charity but the law intervenes as regards the £100,000.
Commission main options
74 The Scottish Law Commission set out
two main options for reform of “legitim”. Both involved a “fixed
rule” system but made considerable differences as to which children could
75 Option 1: This option
reduced entitlements of children to 25% of what they would have received on
intestacy. Where there was a surviving spouse/civil partner, this would be a
potentially severe restriction, as the first £300,000 of the estate under
the Law Commission’s intestacy proposals would go to that survivor.
However, the property concerned would no longer just be movable property such
as cash and shares, but land as well.
76 Option 2: This option
gives the rights solely to dependent children. The Scottish Government
Consultation described the proposal thus—
rights of adult children would be abolished and dependent children given the
right to a capital sum payment, calculated on the basis of what would be
required to maintain the child until no longer dependent (until age 18 or 25 if
in education or training). In this context dependent children are those who
were owed a duty of aliment by the person who has died, immediately before
their death. This would include children accepted as children of the family and
children owed an equivalent obligation of aliment under foreign law.”
should be noted that Option 2 is not really about the broad
claims to inherit but the quantification of specific claims for support. It is
akin to compensation for a child who loses a parent and claims for loss of
financial support under fatal accidents legislation.
Options in respect of definition of
77 It should be noted that the Scottish
Law Commission’s Option 2 follows England and Wales in
opening out the concept of children to include children of the family. Hence,
it would include unadopted step-children where the step-parent has been in loco parentis for much of their
Rapport à la
78 Paragraph 42 above set out the theoretical basis
of rapport à la masse that had been criticised by the Scottish courts over a
century ago when dealing with their equivalent known as collation.
79 The Scottish Law Commission agreed that there
was no reason to view a testator’s property in his or her lifetime as a
fund due to the children, and that gifts by the testator are gifts out of that
fund which need to be returned to properly calculate entitlements. The result
was a recommendation by the Scottish Law Commission to abolish its current
equivalent of rapport à la masse,
and a suggestion that any replacement (and they favoured none) should be a
simpler concept whereby any person wishing to claim their legal share of the
testator’s property had to return gifts in their lifetime—
favour abolition of collation without replacement but if a ‘collation
type’ scheme were to be introduced it should be simpler and apply only to
legal share claims by children against a testate estate. Each claimant would
have to deduct any lifetime gifts from his or her legal share and so be
entitled from the estate to only the balance.”
80 It should be noted that s 10 of the Inheritance Act 1975
allows the court to set
aside dispositions of property made up to six years before the testator’s
death, if such dispositions were made “with the intention of defeating an
application for financial provision”. This perhaps shows that it is not
as simple as saying that one regime (e.g.
England and Wales) favours freedom over property, whilst another (e.g. Scotland) favours the rights of
children. Were the Law Commission’s proposals—even the simple “collation
type” approach recommended—then the English regime will be more restrictive of the
rights of testators, whereas the Scottish regime would be open to be defeated
through deathbed gifts.
(iv) New Zealand
81 New Zealand has a well-established system of
court-based discretion. The first legislation was the Testator’s Family
Maintenance Acts of 1900 and 1906. The latter was replaced by the Family
Protection Act 1908. The present law for our purposes is the Family Protection
Act 1955 which allows certain relatives to claim on an estate if the deceased
has breached moral duties to the claimant and the court decides that further
provision is needed for the applicant’s proper maintenance and support.
The Act applies both where the deceased left a will and on intestacy, and
awards are made at the discretion of the presiding judge.
82 Advocate Keith Dixon cited a Harvard Law Review article from the 1950s to the effect that
the New Zealand system had been successful.
83 However, it is clear that time has led to
familiar criticisms resurfacing—although, as will be seen, they did not lead to
a shift to a fixed-rules system—
is uncertainty and lack of consensus about the priorities of competing claims.
There can be competing claims on an estate by a surviving partner, children of
different relationships, a person to whom a promise was made, and creditors.
The rules on balancing these claims, particularly where the estate is small,
are not clear.
• The courts struggle with nebulous expressions
such as ‘moral duty’, ‘wise and just testator’, ‘maintenance
and support’, and ‘serious injustice’, and the consequence is
inconsistent and unpredictable decisions. This was acknowledged by the Court of
Appeal in Williams v Aucutt where
Blanchard J stated that there was substance in criticisms of the way in which
the courts have applied the present law.
• Litigation costs rather than merit are forcing settlement of claims
There has long been an assumption that costs will be paid from the estate, and
this is certainly true of the administrator’s costs of providing
information to the court and the parties. This problem is not unique to New
Zealand.” [Emphasis added.]
84 Such problems are interlinked. Court-based
inherently appeal to qualitative criteria, which are summed up by appeals to
concepts such as “moral duty” (as in the New Zealand legislation)
or “reasonable provision” as in the English Inheritance Act 1975.
This in turn creates difficulties of definition as regards the courts. The uncertainty of outcome may
encourage litigation. These problems are both simultaneously difficulties with
the system, and functions of the merit of flexibility that will be eroded if
the breadth of discretion is replaced by tighter, quantitative rules.
85 As stated in para 15, the question is where to strike
the balance between competing concerns.
New Zealand Law Commission
86 In 1996, the New Zealand Law Commission
presented a discussion paper with four options. Ultimately it would recommend
continuation of the court-based discretionary system but as the object here is to identify options, it is
useful to briefly outline these—
“Option 1: Claims to relieve demonstrable
children could claim awards to relieve their demonstrable financial need.
233 Under this option the general idea
is that it is not appropriate to make provision for adult children solely to
foster equal sharing, or to ensure that those who merit recognition should be
given it. Still less is the object to appease the strong feelings that children
are likely to feel at being left out of a parent’s will. Rather it is to
meet financial need.
The will-maker dies, at age 80, leaving 2 children, A and B.
Her estate is worth $250 000. She leaves it all to her local church. A and her
husband are retired, with their own unmortgaged house, motor car and $20 000 in
the bank. B is still working but is approaching retiring age. He lives in
rented accommodation, and has no substantial savings.
Neither A nor B is affluent but A is reasonably placed while
B is not. This suggests that B should be awarded a substantial share of the
estate, whereas A should either get nothing, or a much smaller amount.”
87 It appears from the worked example
that the New Zealand Law Commission would apply the principles in a way similar
to that of the Court of Appeal in Ilott v
making generous provision to an adult child who is not doing well and has no
prospect of doing better.
88 Option 2 proceeds on the basis that children do
have a right to an inheritance, although one that can be denied on reasonable
“Option 2: Claims to prevent ‘capricious or vindictive’, mistaken or accidental disinheritance
children could claim an award to prevent the will-maker from disinheriting a
child in a way that is:
capricious or vindictive;
• vitiated by a
serious mistake of fact about
◦ the size of the estate at the time the will-maker died,
◦ the size of the provision made for the child (if any) at the time the
will-maker died, or
◦ the child’s circumstances or conduct; or
• manifestly inconsistent with the will-maker’s
wishes, by reason of
◦ the will-maker’s failure to make a new will in circumstances which
have substantially changed since the will-maker’s last will, or
◦ the will-maker’s unsuccessful attempt to make a new will.
241 This approach is better justified
than one based on need. It acknowledges that, once obligations to first-tier testamentary
claimants have been met, it is for the will-maker to decide who benefits under
his or her will, and in what proportions those people benefit. Excluding
children is justified only when the will-maker has, at the time of their death,
some reasonable ground for doing so. Even so, the courts should not interfere
unless a claimant can cross a high threshold test of unreasonableness, or show
that the will departs substantially from the will-maker’s own intentions.
. . .
243 It might be argued that all these
restrictions are an undue fetter on will-makers’ uncontrolled power of
ownership of this part of their estates. But the mere fact of ownership does
not reasonably carry with it an absolute power to dispose of property on death
89 The third option similarly presupposes a
measure of entitlement on children but focuses on the reasonableness of the
choice to leave the money elsewhere (emphasis added)—
“Option 3: Criteria of reasonableness
251 This option requires that an adult
child show that the will-maker was moved to disinherit the adult child for
insupportable reasons, or for no valid reason at all. This assumes that there
are some reasons for making a will which are valid, and other reasons which are
invalid. One or other set of reasons needs to be spelt out in the statute. On
the whole it is easier to spell out reasons which are sound. If it is
established that the will-maker was motivated by one of the reasons stated
below, then the will would stand.
will-maker may reasonably decline to make provision for an adult child on the
• Higher obligations to others which must be met
instead of providing for the child.
• Will-maker’s dissociation from, or lack
of responsibility for, the child.
• Established practices or understandings within
the family which preclude provision being made for the child.
• Provision made by or for others in place of the
will-maker providing for the child, or provision already made for the child
other than by will.
252 Each good reason for declining to
make provision could, in a statutory provision, be stated in more detail
. . .”
90 The fourth option was simply to have no system
“Option 4: No power to intervene
this option no adult children could claim an award.
263 This option has the advantage of
clarity. It is also a recognition that the grounds on which adult children
might claim provision from will-makers’ estates do not lend themselves to
clear and consistent definition, so that the problem of “unfairness”
may be more apparent than real. It can be supported on the grounds that it is
generally undesirable to maintain legal rules which are uncertain, which have
no defined purpose, and which operate unpredictably. This option is also
supported by efficiency considerations. It does not invite lengthy and
expensive litigation by providing a law with no clear purpose. This option is
based on the conviction that no distribution substituted for a will-maker’s
achieves so much more fairness or promotes social good to such an extent that
it justifies the accompanying expense, delay and divisive interference with
264 This option has the advantage of
permitting conscientious will-makers to make provision which accommodates and
responds to their varied family circumstances better than any law can. It also
recognises that the scale of the problem of wills which adult children perceive
as unfair does not justify the extensive powers granted to counter them. Powers
as extensive and indeterminate as those in the present law, if they applied to
the living, would be intolerable. This option also permits a justifiably
greater emphasis to be given to clearer and stronger first-tier claims.
265 Yet this option also permits
will-makers who are capable of making a will to exclude their children from
their estates, perhaps for reasons that others may disagree with, or perhaps
for no discernible reason at all. The Commission is aware that the abolition of
adult children’s claims would be regretted by lawyers practising in this
area who consider that the law produces useful results which they can
anticipate. It would also be regretted by a broad range of legal practitioners
who see in such claims the virtue that they deal with wills which they consider
capricious and vindictive.”
91 The New Zealand Law Commission’s own
conclusion at para 268 of its Discussion Paper was that it preferred not to
state a view. However, it ultimately recommended restricting intervention in
respect of adult children.
92 The upshot of the consultation is that Family
Protection Act 1955 remains in force unamended. However, it is not quite as
simple as that. The history is summarised by a Consultation Paper from the Law
Commission from England and Wales—
report from the New Zealand Law Commission in 1997 recommended ‘radical
change’, dramatically limiting the courts’ discretion to grant
family provision awards to adult children. The Succession Adjustment Bill
published with that report contains provisions that would limit provision to
what is truly needed for ‘support’, in the sense of ongoing
necessities rather than of generous capital provision. Even though that Bill has not been enacted, the courts have
followed the New Zealand Law Commission’s lead, moving away from ‘estate
engineering’. Claims by adult children are now far less likely to
succeed, and if successful now result in less generous provision. Peart and
‘It seems that the judge or legislator from [a common
law tradition] will inevitably shrink from anything which approaches an
automatic sharing of parents’ estates, despite such an approach being
taken for granted in the civil law systems . . .’” [Emphasis added.]
court-based discretionary system is by its nature imprecise as to what decision
must be used and the weight to be given to particular factors, so its meaning
comes from the prevailing social philosophy amongst the judiciary. So trends in
thought amongst the legal profession may lead to changes in such a law’s
application even when they do not lead to the legislature accepting amendments.
Avoidance of Family Protection Act
93 It is worth noting a comment made in Gregory
Kelly’s 2010 paper on New Zealand inheritance law—
trusts, transfers of assets to third parties and structures such as joint ownership
have been used to defeat inheritance claims. Over the last 15–20 years there has been a massive
increase in the number of family trusts set up in New Zealand, and one of the
main drivers of this is asset or inheritance planning.
aspects of our inheritance laws such as family protection and testamentary
promises claims are handled primarily in the Family Court but others such as
will interpretation and estate/trust administration are handled exclusively in
the High Court. If a particular case raises a number of issues, this may
require separate proceedings to be filed in the High Court and the Family
Court. Traditionally, all estate and trust matters were handled exclusively in
the High Court but there have been significant inroads on this over recent
times. This has resulted in uncertainty, and it is time to undertake a
94 The point is, as we saw with s 10 of the Inheritance Act 1975,
that the issues around gifts to future heirs or running down the estate to
defeat claims will still apply if a court discretion-based approach is adopted.
(v) New South Wales Reform Commission
95 In 2004, the New South Wales Reform Commission
published draft legislation on succession reform, with a commentary.
This ultimately became the Succession Amendment (Family Provision) Act 2008.
96 The proposals created a two tiered structure
for who could apply for relief—
Firstly, there were
spouses, de facto partners and
non-adult children of the deceased. They had a right to make the application.
Secondly, other family
members to whom the deceased “owed a responsibility to provide
maintenance, education or advancement” could also apply. This could
include siblings, although not always. It would include adult children.
97 The provisions on what may be
ordered are very much based on need around the categories of “proper
maintenance, education and advancement”.
Hence, an obligation to maintain is unlikely to apply to a non-dependent adult
but an obligation to fund education, may apply. “Advancement” is
associated with “expenditure of capital (for example, the setting up of
someone in business or upon marriage)”.
There is thus, in the case of non-dependent children, a clear link between
having to prove a type of obligation owed by the parent to the child, and the
relief that would be given.
98 By the Inheritance (Guernsey) Law 2011,
Guernsey abolished its equivalent of légitime
and moved to a system explicitly (and almost precisely) modelled on the
Inheritance Act 1975. The Law came into effect on 2 April 2012.
99 As has been noted above, opinion as to reform
has tended in other jurisdictions to be heavily influenced by the starting
point of the relevant legal system. Scotland is considering changes within a
fixed-rule system; but New South Wales’s Reform Commission reformed
within a court-based discretionary system. In the case of Guernsey, the move was a radical change from
fixed legal entitlements to discretionary relief.
100 The former Bailiff of Guernsey described the
process of change as follows—
its meeting on 27 January 2010, the States approved proposals from the
Inheritance Law Review Committee to enact legislation—
• to replace the current system of what the
Committee described as forced heirship in Guernsey by testamentary freedom
accompanied by family provision;
• under testamentary freedom, an individual will
be able to leave, by will, the whole of his or her immoveable (real) and
moveable (personal) property to such person or persons, and in such
proportions, as he or she chooses;
• family provision will be similar to that which
applies in England and Wales (under the Inheritance (Provision for Family and
Dependants) Act, 1975);
. . .
proposals met with less consideration and debate in the States of Deliberation
than the reforms of the nineteenth and twentieth centuries received in their
time. Apart from vocal opposition from a few doughty advocates who still had
some respect for the Norman tradition, the Projet
de Loi implementing these proposals was nodded through with little
opposition or understanding of the real issues involved.”
the “Response to Consultation on Trusts (Jersey) Law 1984—Relating
to Légitime”, Law Firm E
submitted an appendix stating that no cases had been heard up to that point in
A search of the Guernsey Legal Resources website shows that there are no
judgments up 21 April 2017. A common inference from a prolonged absence of
litigation around a statute is that it is working successfully. Although we
might also note a comment from a 2010 New Zealand Research Paper on that
country’s court-based discretionary system,“Litigation
costs rather than merit are forcing settlement of claims against estates”. Such issues are difficult to
research, save by asking the lawyers involved. However, where the law is of
uncertain outcome, legal costs inevitably increase. Those who would want to
avoid the strictures of légitime
are doubtless the ones most likely to be anxious to avoid any risk of
successful challenge to their will.
102 The Inheritance (Alderney) Law 2015 has created
the same change as seen in Guernsey.
103 The position in Ireland is governed by the
Succession Act 1965. The relevant provision are s 111 and s 117—
If the testator leaves a spouse and no children, the spouse shall have a right
to one-half of the estate.
(2) If the testator leaves a spouse
and children, the spouse shall have a right to one-third of the estate.”
“117.—(1) Where, on application
by or on behalf of a child of a testator, the court is of opinion that the
testator has failed in his moral duty to make proper provision for the child in
accordance with his means, whether by his will or otherwise, the court may
order that such provision shall be made for the child out of the estate as the
court thinks just . . .
(2) The court shall consider the
application from the point of view of a prudent and just parent, taking into
account the position of each of the children of the testator and any other
circumstances which the court may consider of assistance in arriving at a
decision that will be as fair as possible to the child to whom the application
relates and to the other children.”
104 The Irish Law Reform Commission said this of
the provision in 2004—
a testator dies without making proper provision for the children, the latter
may apply to the court to have such provision made for them out of the estate.
In contrast to the legal right share of a surviving spouse, a surviving child
is not entitled to a fixed share of the estate, the size of the award, if any,
is at the discretion of the court. The test is whether the testator failed in
his or her ‘moral duty’ to make proper provision for the applicant
and in considering this, the court will assume the role of ‘a just and prudent
parent’. Where it is established that the applicant failed in his or her ‘moral
duty’, the court in determining the size of the award will take into
account the position in life of each of the testator’s children and any
other relevant circumstances, such as prior provision or particular need.”
105 The principles Re: ABC Deceased XC v RT—
“(a) The social policy underlying s. 117 is primarily directed to
protecting those children who are still of an age and situation in life where
they might reasonably expect support from their parents, against the failure of
parents who are unmindful of their duties in that area.
has to be determined is whether the testator, at the time of his death, owes
any moral obligation to the children and if so, whether he has failed in that
is a high onus of proof placed on an applicant for relief under s. 117, which
requires the establishment of a positive failure in moral duty.
a court can interfere, there must be clear circumstances and a positive failure
in moral duty must be established.
duty created by s. 117 is not absolute.
relationship of parent and child does not, itself and without regard to other
circumstances, create a moral duty to leave anything by will to the child.
117 does not create an obligation to leave something to each child.
provision of an expensive education for a child may discharge the moral duty as
may other gifts or settlements made during the lifetime of the testator.
(i) Financing a good
education so as to give a child the best start in life possible and providing
money, which, if properly managed, should afford a degree of financial security
for the rest of one’s life, does amount to making ‘proper
(j) The duty under
s. 117 is not to make adequate provision but to provide proper provision in
accordance with the testator’s means.
just parent must take into account not just his moral obligations to his
children and to his wife but all his moral obligations, e.g. to aged and infirm parents.
(l) In dealing with
a s. 117 application, the position of an applicant child is not to be taken in
isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the
application in the overall context. In other words, while the moral claim of a
child may require a testator to make a particular provision for him, the moral
claims of others may require such provision to be reduced or omitted
circumstances giving rise to a moral duty may arise if a child is induced to
believe that by, for example, working on a farm, he will ultimately become the
owner of it, thereby causing him to shape his upbringing, training and life
example of special circumstances might be a child who had a long illness or an
exceptional talent which it would be morally wrong not to foster.
needs would also include physical or mental disability.
the court has very wide powers both as to when to make provision for an
applicant child and as to the nature of such provision, such powers must not be
construed as giving the court a power to make a new will for the testator.
test to be applied is not which of the alternative courses open to the testator
the court itself would have adopted if confronted with the same situation but,
rather, whether the decision of the testator to opt for the course he did, of
itself and without more, constituted a breach of moral duty to the plaintiff.
court must not disregard the fact that parents must be presumed to know their
children better than anyone else.”
106 It is thus possible for a testator to take the “Gordon
Ramsay” approach to inheritance, i.e.
that having provided a good education and a deposit on a house, that was all
his children should need by way of material help. If we recall the New South
Wales concept of parental duty to provide “advancement” (see,
above, paras 96–97), the Irish principles recognise
that such a duty can be discharge definitively in life.
107 It is also worth noting that the means of a
testator are often a crucial factor. For example, in the case of SB v Bank of Ireland, a gift of
£100,000 to a child was increased to £250,000 by reason of the size
of the estate rather than need.
(ix) Provision in European Union states
108 It is of great interest to set out the
protection from disinheritance provisions of all the other European Union
jurisdictions (i.e. those other than
the British jurisdictions and Ireland, which have already been considered).
These are near neighbours—particularly given that Jersey shares at least as much of a common legal
heritage with the European continent than it does with the United Kingdom.
109 There is not the space to set out a
detailed study but a summary of the various systems will be sufficient. The
text in the right hand box should be taken to be a direct translation from the source given, with the
exception of Germany and Poland.
The compulsory portion (which restricts the degree of testamentary
freedom) amounts to half the legal portion due for the deceased’s issue and, if there is
no issue, to one third of the legal portion due for relatives in the
ascending line. The compulsory portion for surviving spouses or registered
partners is half their legal share. If a compulsory heir never had a close
family relationship with the deceased, the compulsory portion may be reduced.
(a) In the case of children (or
descendants), the reserved portion is half the estate where there is one
child, two thirds where there are two children and three quarters
where there are three children or more.
(b)Where there are no descendants,
the father and mother are each entitled to one quarter of the estate. In that
case, however, the entire estate may be left to the surviving spouse.
(c) The surviving spouse always
receives at least either usufruct (the right to enjoy the use and benefits)
of half the assets comprising the estate or usufruct of the property used as
the main residence and its furniture, even if that exceeds half the estate.
The surviving spouse and children of the deceased or, in the absence of
descendants, the parents of the deceased are entitled to a reserved share. If
the testator has descendants, surviving parents or a spouse, the testator may
not make a disposition or gift of property adversely affecting their reserved
share. The sum total of the reserved shares of all beneficiaries may account
for up to five-sixths of the property if the deceased leaves behind a spouse
and two or more children. The property other than the reserved share
represents the testator’s disposable share.
If there is no surviving
spouse, the descendants (including adoptees) have the following reserved
shares: in the case of one child or that child’s descendants: one half;
in the case of two or more children or their descendants: two thirds
of the testator’s property.
If there are descendants and a
surviving spouse, the reserved share of the spouse is equal to the reserved
share of each child. In this case the disposable share amounts to one third
of the property in the case of one child, one quarter in the case of two
children and one sixth of the property in the case of three or more
If the testator leaves no
descendants, the reserved share of the spouse is one half if the spouse is
the only heir or one third if there are surviving parents of the deceased.
The reserved share of the
surviving parent or parents is one third.
The testator’s freedom to dispose of property
is restricted by the right of forced heirs to a reserved share.
Forced heirs are—
(a) the testator’s descendants, adopted
children, children in the care of the testator as a partner and their
descendants, the testator’s spouse or extramarital
partner, the testator’s life partner or informal life
partner—they are entitled to a reserved share amounting
to one half of the portion that would have gone to them in the legal order of
succession had there been no will;
(b) the testator’s parents, adopters and
other ancestors—they are entitled to a reserved share only if
they are permanently incapacitated to work and indigent, and their reserved
share amounts to one third of the portion that would have gone to them in the
legal order of succession had there been no will.
Children have the right to share up to 25% of the net value of the
estate. If there is no child but a surviving spouse or parent (father or
mother), they have the right to share up to 50%, whereas in all other cases,
the entire inheritance may be devolved.
Reserved share—general information
The mandatory heirs of a testator are his relatives in descending order.
A mandatory heir who (i) has not waived a right of succession or a right to a
reserved share; (ii) is an eligible heir; and (iii) has not been effectively
disinherited is entitled to a reserved share or to the supplementation
thereof if he or she is wholly or partly omitted by the testator in the
disposition of property upon death, ie he or she does not receive, in the form of a share in
succession or a legacy, estate which, by value, is equal to his or her
reserved share. The surviving spouse and any relatives in the ascending order
are not mandatory heirs. Minor relatives in the descending order must receive
at least the equivalent of three quarters of their statutory
share of succession; adult relatives in the descending order must receive at
least one quarter of their statutory share of succession. If the
will contradicts this and if the testator has not disinherited a mandatory
heir for reasons defined by law, a mandatory heir is entitled to payment of a
sum of money equal to the value of his or her reserved share. If the testator
is widowed and has two children, the share of succession of each of them is
one half. If one of them is a minor, his or her reserved
share comprises three eighths; for an adult relative in the descending order,
the reserved share is one eighth.
If a mandatory heir is (consciously) omitted from a will without being
disinherited but has engaged in acts fulfilling any of the statutory reasons
for disinheritance, such an omission is treated as disinheritance effected
tacitly and rightfully, and in this situation the relative in the descending
order has no right to a reserved share.
If a mandatory heir is omitted
from a will solely because the testator, in the disposition of property upon
death, did not know about him or her (eg the testator was under the impression that this
relative in the descending order had died, or had no awareness of the fact
that a particular person was the testator’s relative in the
descending order), that mandatory heir is entitled to the reserved share to
which he or she has a right by law.
There is forced heirship for the surviving spouse and the heirs in
class 1. The forced share is one quarter of the intestate share. By will the
forced share of children can be reduced to 1 million DKK (approximately 135,000 EUR); a predeceased child’s 1 million DKK forced share is divided equally between his children. Lifetime
gifts are not taken into account when calculating the forced share unless the
gift was made as an advancement (arveforskud).
The presumption is that lifetime gifts are not intended to be an advancement.
Freedom of testation is restricted by the institution of reserved share
which restricts the testator’s freedom to leave his or her property to
the heirs of his or her liking . . . The amount of the
reserved share is half of the value of the share of the estate that an heir
would have received in the event of a succession under law, had all of the
legal heirs accepted the estate.
(a) Direct descendants and adopted
children, as well as their own descendants, are entitled to a legal share of
the deceased person’s estate. The legal share amounts to half the value
of the share of the estate devolving to that heir in accordance with the
statutory order of succession.
(b) A spouse also enjoys protection
from a will made by the first deceased spouse. The surviving spouse may keep
the deceased spouse’s undivided estate, subject either to an
application by a direct descendant for distribution of the estate or to a
will made by the testator. The surviving spouse may always, however, retain
undivided possession of the spouses’ common home, as well as the usual
household effects, unless the surviving spouse owns residential property that
is suitable as a home.
Reserved portion for children: half if the deceased leaves only one child
on death, two thirds if he leaves two children and three quarters if he
leaves three children or more
Reserved portion for a
surviving spouse: the reserved portion for a surviving spouse is one quarter
of the assets in the estate.
Half of the share that the spouse and children would have received on
A. The descendants and
parents of the deceased, as well as the surviving spouse or a survivor with
whom the deceased had concluded a registered partnership, who would have been
called as intestate successors, are entitled to a reserved portion of the
estate. (Article 1825 of the Civil Code and art 11 of Law 3719/2008.)
B. The reserved portion of the estate corresponds to half of the
intestate portion. The legal beneficiary of that portion is included as an
heir apparent in relation to that portion. (Article 1825
of the Civil Code.)
C. The method used to calculate that ratio is complex. Account is taken
of the chargeable benefits already received by the beneficiary from the
deceased and of the total (notional) value of the estate. (Articles 1830–1834 of the Civil Code.)
Pursuant to s 7:10 of the Civil Code, testators are entitled to
freely dispose of their property, or a part thereof, by a disposition of
property upon death.
Accordingly, the freedom of
testamentary disposition extends to all the assets of the testator. Even
though Hungarian law contains the statutory arrangement of reserved share accruing
to certain close relatives (descendant, spouse, parent) of the testator, the
reserved share under Hungarian law is a claim subject to contract law, which the beneficiary may enforce vis-à-vis the heirs. (The period
of limitation for this claim is five years.) The person entitled to a
reserved share does not become an heir, that is, he is not entitled to any
material (in rem) share in the
estate even if he is successful in enforcing his claim against the heir.
Italian law has a complex system of reserved quotas.
Where there is one child and
a spouse, both must receive one third.
Where there is two children
or more and a spouse, the children share one
the spouse takes one quarter.
If there is only one child
and no spouse, he or she must receive one
If there are two children or
more, and no spouse, they share two thirds.
There are also rules on ascendants.
A testator may freely determine the disposition of their whole estate in
the event of their death, with the restriction that those persons entitled to
a reserved share are bequeathed the said reserved share. Persons entitled to
a reserved share have only the right of claim to the transfer of the reserved
share in monetary form.
Yes, the Civil Code provides for the right to the reserved share: the
deceased’s children (adopted children), spouse and parents (adoptive
parents) who were financially dependent
on the deceased on the day of his or her death inherit, irrespective of
the content of the will, half of the share that each of them would have been
entitled to by intestate succession (the reserved share) unless more is
bequeathed in the will. The reserved share is determined on the basis of the
value of the estate, including ordinary household furnishings and equipment.
In Luxembourg law, only the descendants of the deceased (children, or
their children if they have already predeceased him at the time of his death)
are entitled to the reserved portion.
The reserved portion is half
the legal assets of the estate if the deceased leaves one child, two thirds
if he leaves two children and three quarters if he leaves three children or
The Civil Code refers to the reserved portion. This is a right of credit
on the estate of the deceased set aside by law for the descendants of the
deceased by the surviving wife or husband. In accordance with s 616 of the said Code, the reserved portion set aside for all of the
children—whether conceived or born in wedlock, conceived
or born out of wedlock, or adopted—amounts to one third
of the value of the estate where there are no more than four children, and
half of the value of the estate where there are five children or more.
Only the descendants of the deceased (children or—if the children have
predeceased—their children) are entitled to a reserved
share. Neither the spouse nor the ascendants are entitled to a reserved
share. The reserved share amounts to half of the estate.
Polish law provides provision for reserved shares, to protect the
interests of spouses and close relatives. It is unclear what this is.
The reserved share of the spouse and children is two thirds of the
The reserved portion of the succession is the part of the inheritance to
which forced heirs (surviving spouse, descendants, and privileged ascendants—parent of the deceased) are entitled, even against the wish of the
deceased. The reserved portion for each forced heir shall be half of the
share which would have been due to them as a legal heir, in the absence of
any liberalities or disinheritance in the will.
Yes, s 479 of the Civil Code (Act No 40/1964) specifies
the reserved portions of the estate and the heirs entitled to them—
“Minor descendants must
receive at least as much as constitutes their share of the estate under the
law and descendants of age must receive at least as much as one half of their
share under the law. Where a will contradicts the above, the relevant part of
the will shall be void, unless the specified descendants have been
Necessary heirs are entitled to a portion of the estate that the testator
is not permitted to dispose of. (Article 26(1) of the ZD.)
This portion of an estate is the “necessary share”. Necessary heirs are:
the deceased person’s descendants, his/her adopted children and their
descendants, his/her parents and his/her spouse. The grandfathers,
grandmothers, brothers and sisters are necessary heirs only when they are
permanently incapable of work and have none of the means required for
sustaining a livelihood. The persons listed above are necessary heirs if they
are entitled to inherit under the statutory order of inheritance.
(Article 25 of the ZD.)
Spanish common law reserves a portion of the inheritance for certain
relatives, in the form of a legitimate portion. According to the Civil Code,
the “legitimate portion is the portion of the estate
that the testator cannot distribute as this portion is reserved by law to
certain heirs, referred to as ‘legal heirs’”.
and descendants, with respect to their parents and ascendants.
the absence of the above, parents and ascendants, with respect to their
children and descendants.
widow or widower in the manner provided by law.
The legitimate portion of
children and descendants consists of two thirds of the estate of
the father and mother. However, the latter may distribute one of the two thirds
forming the legitimate portion in order to improve the inheritance of their
children or descendants. The remaining third will be freely distributable.
The local or special laws
contain various rules laying down specific provisions relating to legitimate
portions. Each of these rules must be examined to determine the specific
aspects regulated in each of these territories, which range from the pars bonorum legitimate portion to pars valorumo involving a right to a
share of the value of the property, which is paid in cash and is a simple
credit right, as in Catalonia, and even a symbolic legitimate portion as in
Navarre, which simply requires a ritual formula in the will of the testator
required to pay.
the testator was married, the surviving spouse is entitled to receive
property that, together with what the surviving spouse received at the
division of their joint estate or that constitutes the spouse’s
separate property, corresponds to SEK 177 600. This right is valid
as far as the estate is of a sufficient value. This means that if there is no
property of such a value, the surviving spouse inherits all the property that
exists. Wills that restrict this right will not be valid in this respect.
and grandchildren of the deceased (known as bröstarvingar, “heirs of the body”) are entitled to a statutory minimum portion of the inheritance. The
statutory portion (laglott) is half
of the share that is due by law to the children and grandchildren where there
is no will, to which the children and grandchildren have equal rights.
110 This comprehensive tour of European Union laws
demonstrates that fixed-rule entitlements for children are common in civil law
jurisdictions. In every European Union country from a civil law tradition, such
rules are found. There are variations as to amount, and in the case of Denmark
the amount of legal entitlement can be restricted to €135,000. Latvia
restricts entitlement to dependants. However, in the vast majority of cases, adult
children are entitled as of right to a percentage share of their parent’s
European Succession Regulation
111 The European Succession Regulation No 650/2012 has made certain changes
relevant to protection against succession. The Jersey Finance Report described the effect of the EU Regulation as
the origin of légitime being in French jurisprudence, it would be remiss
not to note the impact of the European Succession Regulation No. 650/2012 (nicknamed Brussels IV)
which has applied since 17 August 2015. Under Brussels IV, French forced
heirship rules can now be avoided both by French nationals who are not
habitually resident in France at the time of death and by non-French nationals
who live in France (and who can apply the succession laws of their own
IV means that just one law applies to succession across all EU Member States
(the Regulation Area) except Denmark, Ireland and the United Kingdom.”
112 However, it is important to understand what the
Regulation achieves, as the summary given by Jersey Finance Ltd does not
capture the relevant essence. It elides the point that EU law does not just
permit an individual to avoid local inheritance law—it creates a choice as between which
of two relevant jurisdictions should apply to resolve questions of entitlement.
113 The relevant parts of the Regulation are as
otherwise provided for in this Regulation, the law applicable to the succession
as a whole shall be the law of the State in which the deceased had his habitual
residence at the time of death.
by way of exception, it is clear from all the circumstances of the case that,
at the time of death, the deceased was manifestly more closely connected with a
State other than the State whose law would be applicable under paragraph 1, the
law applicable to the succession shall be the law of that other State.
Choice of law
person may choose as the law to govern his succession as a whole the law of the
State whose nationality he possesses at the time of making the choice or at the
time of death.
person possessing multiple nationalities may choose the law of any of the
States whose nationality he possesses at the time of making the choice or at
the time of death.”
114 The point is simply this, a person who moves between member
states may opt for his estate to be governed by the substantive laws of
succession of his country of nationality—or one of those countries, should he
have more than one EU citizenship.
115 The first point to note is that all
EU jurisdictions other than England and Wales, Northern Ireland and Gibraltar
have fixed-rule inheritance provisions. The Republic of Ireland’s
provision relates only to spouses, although it has a fairly generous
(in comparison to England) court-based discretionary approach for children.
However, it is only accurate to say that the European Regulation permits, for
example, a German living in France to opt out of French laws on protection from disinheritance if we add that
such a testator would bring himself immediately into the equivalent German
provisions. Unless moving to Latvia, it may be very difficult to use the
Regulation to avoid “forced heirship”.
116 The significance of the European
Regulation, perhaps, is as a precedent for people who have moved to a
jurisdiction opting out of that jurisdiction’s substantive rules of
inheritance, and instead being subject to the provisions of their home
jurisdiction. This example may be of interest to Jersey—although obviously the effect of the
European Regulation cannot easily be created unilaterally by a single
Conclusion to Part 1
117 As explained at the beginning, this
article will be in two parts. This first part has set out the background to the
debates in Jersey. This has included a review of two basic approaches towards
protection against disinheritance, that of a “fixed-rule system”
and a “court-based discretion system”. The perceived advantages and
disadvantages of the two approaches, and their basis in local social attitudes,
were set out. This was re-enforced by a comparative analysis which shows that a
fixed-rule system, far from being an unmodern system, is the overwhelmingly dominant
approach in continental Europe. There is no right or wrong answer, just
different answers to complex issues seen through the lens of local thinking.
118 In Part 2, we shall move to the question of what particular issues
need to be addressed in Jersey.
Dennis Dixon is a
Legal Adviser at the Law Officers’ Department, Jersey. The article is
based on a review of the Law Officers’ Department. Any amendments of that
review are his opinion and should not be taken to represent the view of the Law