Jersey &
Guernsey Law Review – October 2013
The Future of
Légitime—Vive La Différence!
Meryl Thomas and Brian Dowrick
Légitime is not a curious and outmoded interference
with the rights of a testator to dispose of his property as he sees fit.
Rather, it is one of the ways in which all countries protect the rights of
widows, widowers and children, and assert the value of family in society. Légitime in
Jersey is a product of the Island’s
jurisprudential history.
Introduction
1 The debate concerning the reform of
succession rights, and in particular freedom of testation over movables and immovables, has rumbled on for more than a decade,
with suggestions that the States ought to implement a system of inheritance
rules similar to that in the Inheritance (Provision for Family and Dependents)
Act 1975.
There is no doubt that grist was added to the mill of those we term the “abolitionists”’
by the fact that aspects of the law relating to légitime over movables were at one time
incompatible with the European Convention on Human Rights. This was remedied by
the Wills and Successions (Amendment) (Jersey)
Law 2010, so that it seemed that there was little more to say on the subject.
Jersey had chosen to maintain a system of fixed rights of inheritance over
movables which was not dissimilar to that in Scotland
and France.
Yet there still seems to be an undercurrent of discontent with this decision,
which can no longer be based on the argument that légitime does not comply with the provisions of
the European Convention on Human Rights, and which must have its roots
elsewhere.
2 The social function of the law of
inheritance is inextricably linked with the family,
which is an important social unit, and must be protected economically. As Hayton says, “All civilized systems of law
. . . provide some protection against a testator leaving his family
too little by giving or bequeathing his estate to others”.
It is just that the manner by which these systems achieve this is different,
with civil law systems having a rigid, compulsory share system for the
deceased’s relatives, and legal systems whose origins lie in the common
law relying on judicial discretion. Jersey is
neither a common law system nor a civil law system, but rather a mixed legal
system, with her laws of succession having originally arisen from Norman French
customary law. There has been an increasing influence of English law in Jersey which
may be due, in part, to the fact that most Jersey lawyers study in England, where
freedom of testation and discretionary rights of inheritance are the norm. The
aim of this paper is to explore why there is this dichotomy of approach between
England and Jersey, and to
demonstrate that it is a natural result of the differing historical, legal and
political factors which operated in England,
Jersey and northern France.
Jersey has remained wedded to the ideas and
concepts that underpinned Norman French customary law, and this in turn is much
closer to a civilian lawyer’s thinking than that of a common lawyer.
Origins of légitime in Jersey
3 The origins of légitime (in the sense of it being a right of a
child to inherit a portion of the movable estate of its parents) lie in Roman
law. The lex Falcidia, which was
enacted in 40BC, prevented a testator from making legacies which exceeded three
quarters of the estate, thus guaranteeing the heir, who was often the
testator’s son, a portion of the testator’s estate. Later the
Institutes of Justinian set out the rules of how the lex Falcidia interacted
with the concept of testamentary freedom, both of which were inextricably
linked to the notion of pietas within
the Roman family, which as Saller says was
“[a]t the center of the Romans’ ideal view of familial
relations”. This “piety”
had a reciprocal quality, with children owing duties to parents and vice versa. In cases where the
obligation owed to the child was breached, Justinian said that the action of
the inofficious will (the querela inofficiosi testamenti) was available. A connection between “natural
affection” and the inofficious will was thus
established, and where children
demonstrated a regard for their parents, obedience and deference they had a
claim against the estate. The lex Falcidia became the legitima portio or the “legitimate portion”
in the Codex of Justinian:
the Novels of Justinian (from around 538AD), changed the amount of the legitima portio, and
the testator was obliged to leave one third of his property to the children if
there were not more than four, and one half if there were more than four
children; the share of ascendants and of brothers and sisters was fixed at one quarter.
4 Transfers of movables are rarely mentioned
in the early charters in Normandy and, as Génestal
says, transfers of movables are less likely to be recorded than transfers of immovables, given the relative importance attached to the
latter compared with the former. Extant documents
from early Norman times contain examples of gifts of a person’s pars, portio or substantia (the terminology had
not been standardised) of movables being made to a
convent after his death, and a “portion”
seemed to be a recognised feature of post-obit gifts
to convents, at least in eleventh-century Normandy. Nevertheless the
evidence of a quota system operating generally in relation to property in Normandy is meagre.
5 There is no doubt that légitime was in use
amongst the Gallo-Romans in the pays de
droit écrit and that it was firmly
entrenched in most districts of southern France by the year 1100, but there is no
evidence of it operating in northern France until much later (see post). Thus légitime existed in
practically the same form as it had in Justinian’s Novella. The indisposable portion of the estate was one third if there
were fewer than four children, and one half if the children numbered five or
more. In cases of unjust disinherison, the will fell, and in cases where a claimant had received less
than he was entitled he could obtain the shortfall.
6 Légitime does not appear in the pays de droit coutumier until towards the
middle of the thirteenth century, and it is likely that it spread from the
south and this spread reflected a desire to foster a moral duty to provide for
one’s children. The amount was not at
first fixed in the Roman manner, but rather was decided upon by a judge, at
least during the period of Phillipe de Beaumanoir, and would be determined
so that the “heirs could live reasonably and have their maintenance
according to their condition in life”. The amount of légitime
finally became fixed in the fourteenth century and applied to both
movables and acquêts. By the sixteenth century,
the Parlement of Paris declared that légitime
was part of local custom,and it was included in a
revised text of the Custom of Paris in the late sixteenth century. A combination of court
decisions and revision of the published customs resulted in it being adopted
throughout the pays de droit coutumier. The introduction of légitime into Normandy appears at a later date than in the
rest of the pays de droit coutumier. The Ancienne Coutume de Normandie did not
grant children either a right of légitime nor
a right of réserve.
Nevertheless the redacted coutumier, from around 1583, set out the increased
children’s rights to the property of their parents, where they were given
a right to a “tiers” of the movables of the father and of
the mother. This right was in a way
an analogue of the “douaire des enfants” practised in other regions of northern France, in
particular Paris, where in cases where the mother predeceased the father the children were given the right of dower which the widow would
have taken were she to have survived: it was in effect a “propre héritage
aux enfants”.
Terrien, some ten years earlier in his commentaries
on the law of Normandy, had written of the child’s “part légitime” (in the context of avancements de succession), and this is one of the first examples of légitime
being referred to as such in Normandy: by the time Godefroy
was writing in the 1620s the term légitime had slipped more into common usage.
A system similar to that in Normandy operated in Jersey, certainly by the time
Le Geyt was writing, since in his Privileges Loix
& Coustumes de l’Ile
de Jersey he describes the
limitations that are imposed on a testator vis-à-vis
the disposition of his movables where there is a surviving wife and child(ren), and these limitations closely mirror the current law
of légitime in the Island.
The English position
7 England was not wedded to freedom
of testation until the nineteenth century. Up to this point there was a degree
of testamentary restriction over both movables and immovables.
Légitime
and jus relictae
(i.e., the right of a surviving
spouse to a portion of the movables of the deceased) existed in England and Wales at a very early date,
although their origin has remained obscure. Glanvill,
when writing his treatise of the laws of England around 1187, describes the
customary division of a person’s chattels into thirds (where a wife and heir survive, with one third devolving to the wife, one third
to the heir and one third being the free part over which the seriously ill
testator had a power of disposition), or halves (where only the heir survives,
with one half devolving to the heir and one half being the free part). The writ of de rationabili
parte bonorum lay for the enforcement of the
right, although it was more usually asserted in the ecclesiastical courts,
primarily because of the evolution of the separate religious and secular courts
in England.
It is somewhat ironic that these restrictions over testamentary freedom were
waning in many regions of England
and Wales by the end of the
fourteenth century, before they had taken root in Normandy
and Jersey, although in many regions of England and Wales they continued until 1724. Ultimately the Wills Act
1837, s 3 provided that a person was entitled to freely dispose of all his
movables.
8 Likewise, the testator’s power to
dispose of immovables in England was also controlled, and
this control was linked to the doctrine of tenures and estates, the rule of
primogeniture and incidents, such as wardship. From
the time of Bracton around 1257, freehold land could
not be devised, except where local custom allowed otherwise (for example,
gavelkind). This led to land being conveyed to feoffees
to uses for the use of the feoffor until his death
and then to the uses declared in the will. The Statute of Uses in 1535 was
designed to put an end to this, but instead led, in part, to the rebellion
known as the ‘Pilgrimage of Grace’ which in turn led to the Statute
of Wills 1540. This Act, as amended, allowed a landowner to devise two thirds
of the land they held in knight’s service and all the land they held in socage tenure. The Tenures Abolition Act of 1660 converted a
knight’s service into socage tenure, thereby
allowing all land to be devised by the landowner. Nevertheless, despite the
fact that a man had freedom of testation over his immovable property after
1660, this was subject to his widow’s dower which gave her a life
interest in one third of the freehold estates of inheritance of which her
husband was seised during the marriage, and which the
issue was capable of inheriting. It was not until the nineteenth century and
the Dower Act of 1833 that a widow’s right of dower could be overridden
by a disposition made by the husband. Thus the Dower Act 1833
and the Wills Act 1837 represented a move towards complete freedom of testation
in relation to both movables and immovables which reached its zenith
in the nineteenth century. The position is summed up clearly by Sir James Hannen, P in Boughton v Knight where he said–
“By the law of England everyone is left free to
choose the person upon whom he will bestow his property after death entirely
unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and
leave his property to strangers to gratify his spite, or to charities to
gratify his pride, and we must give effect to his will, however much we may
condemn the course he has pursued”.
The political reasons for the dichotomy of approach
9 Complete testamentary freedom in England
is very much a construct of the nineteenth century, and probably reflects a
type of English laissez-faire
liberalism of the time; it was an aspect of ‘freedom of property’. Perhaps it was seen to reflect
the spirit of the age much better than the restrictive system which was
redolent of a feudal system, which had collapsed as an economic system in the
fourteenth century. As we have seen, inroads into forced heirship
began in 1540 with the Statute of Wills, and was complete with the abolition of
a widow’s right to dower. The fact that this freedom could result in a
testator not providing for his family was not a reason to deny this freedom.
Rather it allowed the making of appropriate provision in the circumstance, and which could be
exercised to reward “dutiful and meritorious conduct”. Even Jeremy Bentham saw
the power to make a will as a beneficial instrument of social control,
“an instrument of authority confided to individuals, for the encouragement
of virtue and the repression of vice in the bosom [of one’s family]”. The few occasions where a
man might leave his property away from the family were not considered a reason
for denying the freedom itself. As the nineteenth century
progressed, testamentary independence became embedded in common law thinking.
10 Nevertheless, by the end of the
nineteenth century there was a shift towards a more humanist philosophy and an
acceptance of legislative intervention (by the state) over individual power
where that power had been abused. The old liberalism of laissez-faire had changed to a “new”
liberalism of state interventionalism occasioned by
the need to protect the weaker members of society. As Freedon
said, “the new liberal aim was to establish an ethical
framework to prescribe and evaluate human behaviour
and, where necessary, to re-create social institutions”. The power of testamentary
disposition was abused in cases where the husband or father had not exercised
it in a way that fulfilled the expectations of the law, and the testator
ignored their responsibilities to their spouses and children. The problem of
testators ignoring their wives and children was acute in the newly developing
dominions of Australia, New Zealand and Canada. As a reaction to the
perceived injustice of unrestricted freedom of testation in the late nineteenth
century, New Zealand introduced a Bill in Parliament, the Limitations of
Disposition by Will Bill in 1896, which mirrored the approach of forced heirship in civil law countries, and which was designed in
the main to prevent a husband from making a will which directed the whole of
his property away from his wife. This Bill was never approved since, it was
believed, it interfered too much with a testator’s freedom of testation.
The ruling liberal party in New Zealand
at the time held the same views as the “new” liberals in England, and
accepted that the state should intervene in certain cases. It did not however
approve of the mandatory nature of the inheritance which the Bill proposed; the
Bill failed to discriminate between individual cases and circumstances, and
failed to establish a link between inheritance rights and the liberal rationale
of intervention. Therefore it was not until 1900 that New Zealand successfully
introduced the Testator’s Family Maintenance Act, which provided for a
discretionary form of family maintenance, which enabled the court to overturn
wills so far as was necessary to provide the proper maintenance and support for
a spouse and children, i.e., the Act
introduced a moral framework within which it could operate, and the emphasis of
the law moved away from the rights of the deceased’s heirs to the
sanctity of the perceived intention of the testator. This was quickly copied in
Australia, Canada (except Quebec)
and England and Wales. Thus the
origin for the legal basis of the reform of the English system of testamentary
succession came from the British Commonwealth, rather than England’s
European neighbours, where the ideas of “new”
English liberalism had been embraced.
11 Political liberty and individual equality
were two of the main objectives of the French Revolution, and within this
framework the law of succession was seen to be one of the most important
branches of the law. The right to own property was a construct of society, and thus must be exercised within the limits of the interest of
the state, which represented society. Thus a decree passed on 4
August 1789 abolished the feudal regime in France, and promoted equality of
inheritance. Nevertheless it was in the interest of the state and society that
an individual’s freedom of testation (and of inter vivos gifts) was curtailed. Forced heirship would lead to the parcellation
of land, which would in turn break up the large estates, and the encouragement
of the maximum distribution of property was necessary for the development of
the state,
and the widening of the distribution of wealth which was core to the tenets of
the Revolution. Between 1790 and 1800 there was a succession of laws which
fixed the limits of the disposable portion of a testator’s estate, with
the remainder of the estate devolving by means of forced intestate succession
largely in favour of the children. All plans for the
codification of French civil law contained rules for the transmission of
property, which were based on a just balance between the right of ownership,
the bonds of blood, political laws, the division of property and pubic
prosperity.
12 Curiously there was not a “clean
break” with the pre-Revolutionary ideas pertaining to the restriction of
the power of testamentary disposition in France, but rather these ideas were
adapted to accommodate the new post-revolutionary philosophy. In the
legislative debates that led to the Civil Code there was no opposition to the
idea of limiting a testator’s testamentary power in relation to the
rights of his children. A parent was responsible for giving a child his natural
existence, and thus it was his duty, not only as a parent, but also as a citizen,
not to abuse his power of ownership of property, but rather to use it to ensure
that the child had a proper civil existence. A man’s rights of ownership
came to an end with his death, and the state was justified in becoming involved
with this matter, since the interests that were involved here were wider than
the interests of the testator. It was important to the interest of the state
that it encouraged a good family spirit and hence good citizenship. The law was
not acting in contravention of a parent’s wish in these matters, but
rather was confirming the presumed affections of the parent. Thus the law did
not place restrictions or limits on the power of disposition, but rather
granted the child a positive right to légitime (although that particular term was not used
in the Civil Code, but rather the term la réserve which had been a type
of forced intestate succession that operated in the most of the pays de droit coutumier
and was of Germanic origin) in favour of a
certain proportion of the estate, which the child would only lose if he were “unworthy”.
13 Jersey
was unaffected by the French Revolution and the pervading ideas of the role of
the state in the life of its citizens. But as we have seen the Civil Code took
many of its concepts from the “old” (pre-Revolutionary) law and
these remained the basis of the law of succession in Jersey; hence the law of
succession in Jersey is more closely aligned
to that of its civilian neighbour. That is not to say
that the law of inheritance in Jersey remained
stale and outdated: it did not. The liberal ideas and
reforms which were sweeping England,
France and the rest of Europe affected the Island
too, so that the Loi
(1851) sur les testaments d’immeubles
conferred on persons leaving no surviving descendants the power to dispose of
their acquêts
and certain propres.
This testamentary power was extended to persons who had descendants by a Law of
1902, and finally in 1926 the Loi sur les héritages propres gave an unrestricted power of testation to all
persons to dispose of immovables in their will. The
only restriction being the widow’s right of dower and the widower’s
right of viduité.
Conclusion
14 It is clear that the principles
underpinning the law of succession in Jersey are closer to those of France than
of England, and this is particularly (although not exclusively) the case in
relation to the curtailment of a testator’s testamentary power; this
article has sought to examine the reasons for this, and to show that both the
fixed and discretionary system of testamentary provision for the
deceased’s family are a natural social function of the law of succession,
with there being no “correct” way of achieving this goal. No weight can be given to
the argument in favour of the abolition of légitime
based on the fact that the English system of discretionary rights is superior
in some way. Fixed rights of inheritance for a child are a common feature of
the testamentary succession laws in most countries which do not have the common
law as their jurisprudential basis. In fact, to the civil law lawyer it is the
English system of discretionary rights of inheritance which
is a little peculiar. It is usual to consider one’s own legal system as
natural and normal, and anything that is different to be somewhat curious; this
may be part of the reason why many English lawyers consider theoretical freedom
of testation as a necessary and usual incident of ownership, and that
discretionary rights of inheritance based on the exercise of a judicial
discretion should supplement this freedom. This method is merely one way in
which a child may be economically provided for after the death its parent. Jersey has a different method, albeit one which is closer
in its philosophical basis to civil law.
Meryl Thomas is a Lecturer in Law at Cayman Islands
Law School, Visiting Professor at the Institute of Law, Jersey and Professeur Invité at the Université Paris Ouest
Nanterre La Défense.
Brian Dowrick is a Senior Lecturer in Law at the University of
South Wales.