"Prior to the Amendment, dower was a right that could be claimed by a wife upon her husband's testate death (i.e. dying with a valid will) which, if claimed, entitled her to a life enjoyment (otherwise known as a 'usufruit') of one third of her deceased husband's immovable estate."

Wills & Successions (Amendment No.2) (Jersey) Law 2013

15 Jan 2014

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. 

On 1 January 2014, the Wills and Successions (Amendment No.2) (Jersey) Law 2013 came into force (the "Amendment"), and it takes into account the Report and recommend-ations of the Legal Advisory Panel (the "Panel") who were responsible for analysing the Report and assessing whether the Law complied with the Human Rights (Jersey) Law 2000.

The Amendment will be discussed following a brief explanation of the concepts 'dower' and 'viduité' and a review of the position prior to the Amendment.

Pre- the Amendment: Dower and viduité
Prior to the Amendment, dower was a right that could be claimed by a wife upon her husband's testate death (i.e. dying with a valid will) which, if claimed, entitled her to a life enjoyment (otherwise known as a 'usufruit') of one third of her deceased husband's immovable estate. Viduité was a right which a deceased wife's husband had to a life enjoyment of the whole of his late wife's immovable estate without the need to apply to court (e.g. it was an automatic right).

Differences between dower and viduité prior to the Amendment
There were certain conditions that needed to be satisfied in order to claim dower and viduité but, other than each right applying only to immovable estate, those conditions were noticeably different. For example:

  • a widow must have claimed her right to dower by making an application to the Jersey court; whereas a widower did not need to make such application because he was entitled to viduité automatically on his wife's death (subject to certain conditions as outlined below);
  • a widow could remarry without forfeiting her dower rights; whereas a widower lost his viduité rights automatically upon any remarriage;
  • if a widow had been an unworthy wife (e.g. having deserted her husband during his lifetime) then she would not have been able to claim dower; whereas a surviving husband was entitled to viduité irrespective of whether he deserted his wife;
  • a widower was only entitled to viduité if there had been a child of the marriage; whereas a widow needed only to have consummated the marriage in order to claim her dower rights; and
  • dower only applied to one third of a deceased husband's immovable estate; whereas viduité applied 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 in the Report 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 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 Amendment
The most significant and note worthy amendments to the Law included in the Amendment 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 Amendment came 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.

Comment
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 Amendment removes the last remaining inequality in respect of the differences between dower and viduité and ultimately gives the Law the face lift that it has required for some time now.