The Wills & Successions (Jersey) Law 1993, as amended (the "Law") was the subject of a Report by Professor Meryl Thomas ("Professor Thomas") dated 12 October 2009, which was commissioned by the Jersey Community Relations Trust in 2009 (the "Report").
The Report was commissioned in order to assess whether the Law was compliant with the European Convention on Human Rights and, in assessing whether it was compliant, Professor Thomas analysed two important Jersey law rights known as 'dower' and 'viduité' and the different rights and conditions attached to each right.
Dower and viduité
Dower is a right that may be claimed by a wife upon her husband's death which, if claimed, entitles her to a life enjoyment (otherwise known as a 'usufruit') of one third of her deceased husband's immovable estate.
Viduité is a right which a deceased wife's husband has to a life enjoyment of the whole of his late wife's immovable estate without the need to apply to court (e.g. it is an automatic right).
Differences between dower and viduité
There are certain conditions that need to be satisfied in order to claim dower and viduité but, other than each right applying only to immovable estate, those conditions are noticeably different. For example:
- a widow must claim her right to dower by making an application to the Jersey court; whereas a widower need not make such application because he will be entitled to viduité automatically on his wife's death (subject to certain conditions as outlined below);
- a widow may remarry without forfeiting her dower rights; whereas a widower loses his viduité rights automatically upon any remarriage;
- if a widow has been an unworthy wife (e.g. having deserted her husband during his lifetime) then she will not be able to claim dower; whereas a surviving husband is entitled to viduité
- a widower is only entitled to viduité if there has been a child of the marriage; whereas a widow needs only to have consummated the marriage in order to claim her dower rights; and
- dower only applies to one third of a deceased husband's immovable estate; whereas viduité applies in respect of the whole of a deceased's wife's immovable estate.
The Report's conclusions
Despite the apparent differences highlighted above, Professor Thomas concluded as follows:
"a difference in treatment between persons in similar situations, based on sex,...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...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...
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."
The Legal Advisory Panel (the "Panel") was responsible for analysing the Report in order to assess whether the Law complied with The Human Rights (Jersey) Law 2000. The Panel was of the opinion that the differences between dower and viduité had to be justified in accordance with the values and assumptions of the 21st century, but concluded that they did not do so. Consequently, the Panel concluded that legislative change was required in order to introduce equality between surviving spouses regarding their rights of life enjoyment of immovable property.
The Wills & Successions (Amendment No.2) (Jersey) Law 201-
The Wills & Successions (Amendment No.2) (Jersey) Law 201- (the "Draft Law") has been produced with the Report and the Panel's recommendations in mind and the most significant and note worthy amendments can be summarised as follows:
- dower is extended so that it becomes a right enjoyed not only by widows, but also by widowers. Both sexes and civil partners enjoy the same right, in the same proportions and upon the same terms;
- viduité is abolished meaning that a widower, from the date that the Draft Law comes into force, no longer has a right to a usufruit over the whole of his deceased wife's immovable estate;
- there is clarification as to the extension of dower to civil partners on the same terms as for spouses, such right having been extended to civil partners pursuant to the Wills & Successions (Amendment) (Jersey) Law 2010 (the "2010 Amendment") which came into force on 29 January 2011; and
- the requirement for a marriage to be consummated in order to claim dower is abolished in order to ensure that spouses and civil partners are treated equally.
The primary purpose of the 2010 Amendment was to equalise the rights of legitimate, legitimated, adopted and illegitimate children and to equalise the inheritance rights of spouses and civil partners following the implementation of the Civil Partnership (Jersey) Law 2012, which came into force on 2 April 2012. The Draft Law will remove the last remaining inequality in respect of the differences between dower and viduité and ultimately give the Law a modern face lift and bring it into the 21st century.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.