wills and successions (amendment No. 2) (Jersey) Law 201-
[25/02/13] DRAFT REPORT
1. Introductory
1.1 This projet de loi would amend the customary law as well as the Wills and Successions (Jersey) Law 1993 (“the 1993 Law”).
1.2 The amendments relate principally to the rights of dower (douaire)[1] and viduité in Jersey law. Dower may be claimed by a wife when her husband dies; and viduité is a right enjoyed by a husband when his wife dies. As will be explained below in more detail, the two concepts differ in nature, and this results in substantially differing rights as between husband and wife on the death of the other.
1.3 The difference in husbands’ and wives’ rights in this respect was the subject of a Report commissioned by the Jersey Community Relations Trust in 2009 (see paragraph 6. below) which assessed the extent to which the existing law complied with the European Convention on Human Rights.
1.4 That Report has been considered carefully by the Legislation Advisory Panel; and the result is this draft Law which is intended to equalise the rights of surviving spouses, male and female, by –
(a) removing altogether the husband’s right of viduité; and
(b) reforming dower (douaire) so that a usufructuary right equivalent to it can be claimed by the husband when his wife dies, as well as by the wife when her husband dies.
1.5 This reform follows on from the Wills and Successions (Amendment) (Jersey) Law 2010 (L.22/2010) which was adopted by the States on 23rd March 2010 and came into force on 29th January 2011.
1.6 That Law met the aim of the original Legislation Committee’s Consultative Document entitled Succession Rights for Children Born out of Wedlock to “… extend the rights of the illegitimate child to inherit from the estates of his or her wider family as though he or she were legitimate”. But this was intended as part only of an ongoing consideration at the time by the Legislation Advisory Panel of other aspects of the laws of succession.
1.7 The Panel has gone on to consider Article 8 of the 1993 Law which prevents a separated spouse, in the case of desertion or judicial separation, from claiming the life enjoyment of the matrimonial home and certain other succession rights when the other spouse dies. A corresponding provision – Article 8AA – was made by the Civil Partnership Law 2012 in relation to a civil partner who deserts, or separates from, the other. Amendments to these provisions are also made, which will be explained in further detail in paragraph 9. below.
2. What are dower and viduité?
2.1 A married person’s immovable[2] property left by will is subject to a claim –
- of dower (douaire) by the widow, or
- of viduité by the widower.
2.2 Dower is a right to the life enjoyment – the usufruit[3] – of ⅓ of the late husband’s immovable estate.
2.3 Viduité[4] is a right to the usufruit of the whole of the late wife’s immovable estate.
2.4 It should be emphasised that the right to dower or viduité arises only when the property has been left by will. Under Article 6(3) of the 1993 Law, to the extent that a spouse dies intestate (i.e. does not make a will) as to immovable estate, the surviving spouse is not entitled to dower or viduité. (See paragraph 4. below for further details about what happens if there is no will.)
3. How do dower and viduité work?
3.1 Dower and viduité both guarantee provision for the surviving spouse, but they do so in different ways, and subject to different conditions.
3.2 Proportion of the estate affected: As noted already, douaire extends to one third of the deceased’s immovables; whereas viduité extends to the whole of the deceased’s immovables.
3.3 Child of the marriage: For douaire, no child of the marriage need have been born (although the marriage must have been consummated); whereas for viduité, there must have been a child born of the marriage.
3.4 Conduct during the marriage: An unworthy wife may forfeit her entitlement to douaire e.g. by having deserted her husband; whereas the husband’s right to viduité is not affected by any similar consideration of his conduct.
3.5 Re-marriage: A widow may remarry and keep her dower entitlement; whereas a widower loses his right to viduité if he remarries.
3.6 Procedures: Widows must make application to court to secure their entitlement to dower; whereas widowers are automatically entitled to viduité.
4. What happens where no will has been made?
4.1 As mentioned in paragraph 2.4, dower and viduité do not apply to property in respect of which no will has been made. Instead, under Article 6 of the 1993 Law the surviving spouse is entitled to the whole of the immovable estate, if the deceased spouse died without children.
4.2 If the deceased did leave children, then the surviving spouse takes an equal share with each of the children surviving. If any of the children has already died leaving children of their own, then those grandchildren of the deceased step into the shoes of their deceased parent and claim what would have been his or her share.
5. Are douaire and viduité peculiar to Jersey law?
5.1 No they are not.
5.2 Reserved rights of life enjoyment over a deceased’s immovable estate may not be familiar to present day common law practitioners, but Scots, French and other civil law practitioners will recognise them at once. They have much in common with e.g. earlier Scots law concepts of terce and courtesy. Terce was the right of the widow to the enjoyment (‘liferent’) of one third of the deceased’s immovable (heritable) property; courtesy was the right of the widower to the enjoyment of the whole of the deceased’s heritable property.
5.3 More particularly where Jersey is concerned, douaire was firmly established throughout the northern pays de coûtumes of France, and especially so in Normandy. So too in Normandy was franc veuvage, i.e. viduité. In modern French law, the rights of the surviving spouse are able to be protected by choice of an appropriate régime of community of matrimonial property (communauté de biens).
6. Is there a need for reform?
6.1 On 12th October 2009 a Report by Professor Meryl Thomas was published. As mentioned in paragraph 1.3 above that Report had been commissioned by the Jersey Community Relations Trust, and examined certain Jersey laws of succession in relation to the Human Rights (Jersey) Law 2000.
6.2 The Thomas Report concerned itself (among other things) with the fact that surviving spouses were treated differently vis-à-vis dower and viduité and that such differences appeared to be discriminatory and might infringe certain rights secured under the European Convention on Human Rights. To quote Professor Thomas:
“Men and women are treated differently in relation to their rights of inheritance over immovable property in testate[5] succession. This undoubtedly constitutes a difference in treatment between persons in similar situations, based on sex, but this does not necessarily make it discriminatory within Article 14 [of the European Convention on Human Rights]. A difference in treatment is discriminatory if it has no objective and reasonable justification, it does not pursue a legitimate aim, or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the contracting member states enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. Therefore the question is whether there is a reasonable justification or a legitimate aim in according different rights to the widow and widower on the death of the spouse. . .”.
6.3 The Report went on to note that douaire had existed in France and “was particularly appreciated in Normandy since community of property[6] did not operate [there]” and that “dower was and is a means whereby the widow was and is protected since there was no community of property régime in Normandy and thereby Jersey.” Viduité also existed formerly in France and, although it fell into disuse elsewhere, “it retained its force in Normandy because of the lack of a community of property régime . .”.
6.4 The Report concluded:
“In short both dower and viduité were and are necessary to protect a surviving spouse on the death of the deceased since there is no community of matrimonial property in Jersey. Failure to recognise dower and viduité could result in freedom of testation, which could have dire consequences for the surviving spouse.”
Both therefore appeared to fulfil a legitimate aim.
6.5 But, in spite of both having an entirely legitimate aim, there still needed to be justification for the difference in the way that the two concepts operated, in other words some rational reason in the modern age for –
- the widow’s right of dower to be of a different amount to the widower’s right of viduité; and
- the different conditions attached to each.
6.6 This has resolved itself, therefore, into these basic questions that the Legislation Advisory Panel has had to pose itself: can the difference in amount and the difference in conditions be regarded as reasonable and justified? Do those differences achieve a legitimate aim?
6.7 Professor Thomas observed that the difference in amount between dower and viduité were largely historic:
“The fact that dower extends merely to ⅓ of the immovable property echoes the laws of the Salic Franks (who invaded Normandy prior to Duke Rollon[7]). Under Salic law the widow was given ⅓ acquêts, and we see this ⅓ echoed in Norman law. It was reduced to writing in the Grand Coutumier, where dower was said to amount to ⅓ of ‘toute la terre’ which the husband possessed when the marriage was contracted.
The reason that viduité extends to the whole of the wife’s immovable property is believed to result from the Norman rule protecting lineage – paterna paternis materna maternis. The wife’s propres would return to her family according to the maxim. Viduité is a means whereby the widower is given a right to use the property for life before lineal succession occurs.”
6.8 The different conditions attached to dower and viduité were again of historical origin.
6.9 It is unnecessary to reproduce in full the helpful historical analysis provided by Professor Thomas. Suffice it to say she concluded that “ . . . the difference in the conditions attached to dower and viduité and the difference in the nature of the rights themselves [seemed to be] rooted in the history of Normandy and Jersey”. But the concepts of dower and viduité, in the context of the European Convention on Human Rights, have to be judged by contemporary views. Any justification based upon historical antecedents would, in her opinion, have been “very unlikely to succeed”.
6.10 The Legislation Advisory Panel reflected carefully on the content of the Report commissioned by the Jersey Community Relations Trust insofar as it related to matters of dower and viduité and the possibility that the discrimination based on sex inherent in those concepts might violate the Human Rights (Jersey) Law 2000.
6.11 The Panel noted the antiquity of these concepts and their origins in our Norman coûtume, possibly even in the laws of the Salic Franks. The Panel was not quick to counsel discarding something so deeply rooted in the history and culture of Jersey. Nonetheless, it recognised that there had to be a justification for the difference in the way that the two concepts operated, and that such justification had to be sustainable, not on the basis of historical attachment, but by reference to the values and assumptions of the modern age.
6.12 With that in mind, the Panel felt bound to accept that the discriminatory elements inherent in the workings of douaire and viduité were in substance at odds with the egalitarian norms of the modern western world of which Jersey – obviously – is part.
6.13 The Panel therefore accepted the need for legislative change to equalise the treatment of surviving spouses insofar as their reserved rights of life enjoyment of property were concerned.
7. The decision to reform
7.1 Having concluded that change was needed, the Panel did not recommend to the Chief Minister the outright abolition of reserved usufructuary rights. To repeat the words of Professor Thomas:
“ … dower and viduité … are necessary to protect a surviving spouse on the death of the deceased . . . . Failure to recognise dower and viduité …… could have dire consequences for the surviving spouse.”
7.2 The Panel, in connection with the preparation of the Civil Partnership (Jersey) Law 2012, had already examined the possibility of aligning dower and viduité rather than abolishing them altogether, and reached the conclusion – now reflected in that Law – that same sex couples should enjoy a reciprocal right equating to that of dower.
7.3 In the light of the Panel’s consideration of the concepts of dower and viduité, it was decided to recommend to the Chief Minister that married couples should likewise enjoy what would, in effect, amount to a reciprocal right of dower (to the exclusion, that is, of any right of viduité). Therefore the principal goal of this draft Law is the establishment of such a reciprocal right; and in turn the abolition of the law relating to viduité.
7.4 This would secure equality of treatment, not only as between husband and wife, but overall as the law applies both to married couples and to civil partners.
7.5 The adoption of a universal right equating to douaire was thought to be more appropriate than the adoption of a universal right equating to viduité.
7.6 The Panel did also look at the régime governing intestacy[8] and also at the separate rules of légitime governing movables (money, furniture etc.), and explored the possibility that some form of either or both of these might apply where there was a will of immovables, instead of a right of dower. But this threw up difficulties and considerations about testamentary freedom in the wider sense, and more fundamentally the nature in law of movable and immovable property, and would have entailed a far reaching and fundamental review of the whole law of succession, better suited to another phase of the Panel’s review.
8. The draft Law
8.1 As stated, the main purpose of the draft Law is to establish the equivalent of a right of dower between spouses irrespective of gender (and to abolish the existing right of a male surviving spouse to viduité). The similarity of purpose with civil partnerships in this respect meant that much of the drafting groundwork was done in preparing the Civil Partnership Law.
8.2 This draft Law contains amendments of the 1993 Law to secure for a surviving male spouse a right of usufruit in his wife’s immovable estate in the same proportion, and on the same terms, as that to which a surviving female spouse is entitled by virtue of her droit de douaire. There is no need to duplicate the detail contained in the draftsman’s Explanatory Note, but it will be helpful nonetheless to highlight the following aspects.
8.3 The legal hypothec attaching to the right of dower i.e. the hypothèque de douaire – by virtue of which a widow is able to make her claim in a dégrèvement – is provided for by Articles 7 to 9 of the Loi (1880) sur la propriété foncière. The necessary amendments of that Law have been made to accommodate equivalent hypothecary rights for male surviving spouses. In the process, the relevant provisions of those Articles, as amended by the draft Civil Partnership Law, have been consolidated so as to provide collectively for the hypothecary rights of surviving husbands, surviving wives and surviving civil partners, the rights of each now being wholly aligned.
8.4 One further matter required to be addressed in terms of the alignment of the rights of surviving spouses with the rights of surviving civil partners. The draft Civil Partnership Law, in conferring on surviving civil partners the right to claim dower, exempted them from the rule known as ‘le douaire se gagne au coucher’. This is the rule of customary law under which a widow loses her claim to dower if it is shown that the marriage was not consummated.
8.5 This rule having been disapplied in relation to dower claimed by surviving civil partners, the Legislation Advisory Panel decided to recommend to the Chief Minister that it be abolished in relation to the right of usufruit claimed by a surviving spouse. In this way, there will be no difference in the treatment of spouses and of civil partners in terms of their entitlement. The law relating to petitions for nullity of marriage in cases of non-consummation would remain intact, of course.
9. Reform of Articles 8 and 8AA (of the 1993 Law)
9.1 Reference was made at paragraph 1.7 above to Articles 8 and 8AA of the 1993 Law which bar a separated spouse or civil partner, in the case of desertion or judicial separation, from claiming the life enjoyment of the matrimonial home, or civil partnership home, and certain other succession rights when the other spouse/civil partner dies.
9.2 Articles 8 and 8AA operate in relation only to what are known as the statutory surviving spouse and surviving civil partner provisions, that is to say, the right of a surviving spouse or civil partner to –
- life enjoyment of the matrimonial/civil partnership home (under Article 5 of the 1993 Law);
- the immovable estate on intestacy (under Article 6); and
- part of the movable estate – known as légitime (under Article 7).
9.3 This does not include the customary law right of dower which is able to be claimed when a will has been made which does not otherwise provide for the surviving spouse or surviving civil partner. In relation to dower, the rules governing disqualification are contained not in the 1993 Law, but in case law. Thus e.g. a claim for dower will not lie where a widow has been convicted of the manslaughter of her husband: In Re Estate Poole 25 GLJ 48.
9.4 This leaves the Royal Court having to apply two different tests – one statutory and the other customary law – depending upon whether the deceased did or did not leave a will. The Legislation Advisory Panel has concluded, following consultation, that there is no good reason for the test to differ depending merely upon whether the succession was testate or intestate.
9.5 The amendments to Articles 8 and 8AA – contained in Articles 3 and 4 of the draft Law respectively – would therefore enable the Royal Court to apply the same test whenever a surviving spouse or surviving civil partner made a claim in an estate, irrespective of whether the claim is based on a customary or statutory law right. Accordingly –
(a) Articles 8 and 8AA would apply whenever a surviving spouse or civil partner claimed any right in an estate; and
(b) this would not prejudice the power of the Royal Court, upon any other lawful ground, to exclude a surviving spouse or surviving civil partner from claiming in the estate.
10. Conclusion
10.1 To summarise the principal effect of this draft Law, it would remove one of the remaining discriminatory elements in the Jersey law of succession, by finally equalising the rights of surviving spouses where land left by will is concerned. This would be achieved by –
(a) removing the husband’s right of viduité; and
(b) enabling the right of usufruit attaching to dower to be claimed by the husband or the wife depending on which of them died first.
10.2 Taken together with the earlier reform of the succession rights of non-marital children in 2011, this would represent a significant modernisation of Jersey’s inheritance laws.
10.3 As noted earlier, the law of viduité is rooted deep in Jersey’s Norman customary tradition, and there will always be an understandable reluctance to abandon what may be seen as an integral part of the Island’s legal heritage. But, ultimately, Jersey law must respond to the needs and values of a community living in the 21st Century in a global economy.
10.4 The other reform – in relation to Articles 8 and 8AA of the 1993 Law – would be essentially a rationalisation of the powers of the Royal Court and, as such, a non-contentious measure.
[There are no financial or manpower implications]
Human Rights
The notes on the human rights aspects of the draft Law in the Appendix have been prepared by the Law Officers’ Department and are included for the information of States Members. They are not, and should not be taken as, legal advice.
APPENDIX
Human Rights Note on the Wills and Successions (Amendment No. 2) (Jersey) Law 201-.
- This Note has been prepared in respect of the draft Wills and Successions (Amendment No. 2) (Jersey) Law 201- by the Law Officers’ Department. It summarises the principal human rights issues arising from the contents of the draft Law and explains why, in the Law Officers’ opinion, the draft Law is compatible with the European Convention on Human Rights (“ECHR”). References below to “Articles” are to Articles contained in the draft Law unless otherwise specified.
These notes are included for the information of States Members. They are not, and should not be taken as, legal advice.
- The principal purpose of the draft Law is to eliminate differential treatment between married men and women in terms of their succession rights to the estates of each other.
- To this end –
Article 2 inserts a new Article 6B in the Wills and Successions (Jersey) Law 1993 (“the 1993 Law”) which provides that, where a wife dies testate as to immovable estate, the widower shall have a right of usufruit in that immovable estate to the same extent and upon the same terms as a widow has by virtue of her right of dower in the immovable estate as to which her husband dies testate. This change to the law does not affect a succession which opens before the change comes into force.
Article 7 inserts a new Article 14A in the 1993 Law abolishing a widower’s entitlement to viduité in the immovable estate of his deceased wife as to which she died testate. This change to the law does not affect a succession which opens before the change comes into force.
- These two provisions are effective to remove the potential objections to the present law based on the engagement of either –
ECHR Article 1 Protocol 1 (respect for ‘possessions’) in conjunction with Article 14 (discrimination); or
ECHR Article 8 (respect for private and family life, home and correspondence) in conjunction with Article 14.
- The remaining Articles, except for Article 3, contain provisions that are consequential upon the above ‘core’ provisions removing the discriminatory features of the existing law. None calls for comment, except the new Article 14B of the 1993 Law – inserted by Article 7 – which abolishes the rule of law expressed in the maxim le douaire se gagne au coucher. This is the rule in relation to dower whereby the widow loses her right of douaire if it is shown that the marriage was been consummated. No such rule applied to a widower claiming viduité. Accordingly the abolition of the rule is consistent with the core provision of the draft Law eliminating differential treatment.
- Article 3 is concerned with the grounds upon which a person may be disqualified from claiming in the estate of his or her deceased spouse or civil partner. The purpose of the amendments to Articles 8 and 8AA, respectively, of the 1993 Law is to make it clear that the grounds upon which a person may be so disqualified do not differ depending merely upon whether the succession is testate or intestate. The existing statutory grounds are desertion by the surviving spouse or a decree of judicial separation in favour of the deceased spouse; the existing customary law grounds are not definitively settled, but they must be of a substantially serious nature e.g. the manslaughter of the deceased by the claimant In Re Estate Poole 25 GLJ 48. The grounds for such disqualification are not extended in themselves by the draft Law; the purpose is simply to make it clear that such grounds – be they statutory or customary law grounds – are to be applied on the same footing to testate and intestate successions.
ECHR rights engaged
Article 14
- Article 14 provides that the enjoyment of rights and freedoms set forth in the Convention shall be secured without discrimination on any ground. Therefore, this is not a standalone Article and only when a “primary” ECHR Article is engaged, Article 14 shall also be capable of being engaged if there is discrimination in the enjoyment of the primary Article.
Article 14 & Article 1, Protocol 1
- Article 1, Protocol 1 ECHR (“right to enjoy possessions”) is not engaged because this Article “does no more than enshrine the right to the peaceful enjoyment of ‘his’ possessions, that consequently it applies only to a person’s existing possessions and that it does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions.” (Marckx v Belgium (1979-80 2 E.H.R.R. 330, para 50). Therefore, this Article is only concerned with a person’s existing possessions and not those which may be acquired by inheritance or succession.
Article 14 & Article 8
- ECHR Article 8 (respect for private and family life, home and correspondence) is however engaged as matters relating to succession and disposition are “intimately connected with family life” (Marckx v Belgium). There is a difference in treatment between a widow (douaire) and a widower (viduité) in the enjoyment of an Article 8 right, and therefore Article 14, in conjunction with Article 8, is engaged.
- As mentioned in Paragraph 6 of the main body of the Report, a difference in treatment shall only be found to be discriminatory for the purposes of Article 14 ECHR if such differing treatment has no objective and reasonable justification, it does not pursue a legitimate aim, or if there is not the means employed to achieve the legitimate aim pursued are not proportionate. Moreover, contracting states enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment.
- There is clearly a legitimate aim (i.e. protecting the interests of surviving spouses). However, the difference of treatment between a widow and a widower would, as noted in Paragraph 6.9 of the Report, be difficult to justify, based on the historic roots of both douaire and viduité.
- As a result, the draft Law seeks to remove this difference in treatment by abolishing viduité whilst extending the douaire to surviving widowers, the latter currently only enjoyed as a right by widows (in both cases, where the deceased spouse has died testate). Furthermore, the draft Law shall also extend the douaire to surviving civil partners (where the deceased civil partner has died testate). Thus, in light of the Civil Partnerships (Jersey) Law 2012, the draft Law shall provide surviving civil partners with equivalent rights to surviving spouses.
- Following these revisions, the issue of compatibility with Article 14 ECHR, when read with Article 8 ECHR, that exists regarding the differing treatment between female surviving spouses and male surviving spouses, and between both of those groups and surviving civil partners, shall be remedied. The draft Law is therefore compatible with Article 14 ECHR, when read with Article 8.
Article 1, Protocol 1
- As mentioned above, Article 1, Protocol 1 ECHR does not extend to succession rights and therefore, Article 1, Protocol 1 is not engaged as regards abolishing the right of viduité.
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