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BCR Explores Law – Légitime

July 1, 2021

In Jersey law a person does not have complete freedom to leave their property to whomever they wish. Légitime is a Jersey law doctrine which provides protection against disinheritance for certain individuals who might expect to benefit from the estate of the deceased (such as spouses/civil partners and children). This is a form of forced heirship. Before we look at what the principles of légitime are, it is important to understand a few key points:

  1. Légitime only applies to movable property (i.e. personal property, such as cash, shares, cars, furniture, jewellery etc.). Légitime does not apply to immovable property (i.e. real property, such as a freehold house or flat).
  2. Légitime does not apply to any intestate successions (i.e. any situation in which a person dies without having left a will of movable estate). There are other specific principles which apply in that scenario.

What is Légitime?

Légitime is in essence the entitlement of the surviving spouse, civil partner, and/or issue (lineal descendants, typically children or grandchildren) of the deceased to inherit a part of the deceased’s movable estate. The guiding principle of Jersey’s laws on succession has historically been one of preserving family assets. In the 16th century, there was an almost total prohibition on the freedom to leave assets to individuals outside of one’s family. Things have moved on considerably since then. Now a testator (the person making the will) is, generally speaking, permitted to leave their immovable property to whomever they wish, subject to certain rights such as dower. However, as people are often surprised to learn, restrictions remain which place limits on a person’s testamentary freedom in relation to their movable assets.

Who gets what?

The rules which apply are now set out in the Wills and Successions (Jersey) Law 1993. The provisions relating to légitime and the interested parties’ entitlements are set out in Article 7 of the 1993 Law. There are three possible situations that might arise on the death of the deceased:

  1. The testator is survived by a spouse or civil partner only, with no (or at least, no surviving) children or remoter issue. In this scenario, the surviving spouse or civil partner is entitled to claim as their légitime, the household effects of the matrimonial home, plus two thirds of the rest of the net movable estate. The remaining third (the ‘partie disponible’ or ‘disposable share’) the testator is free to leave to whomever they wish.
  2. The testator is survived by both a spouse or civil partner and by children or remoter issue. In this case, the surviving spouse or civil partner is entitled to claim the household effects of the matrimonial home, plus one third of the rest of the net movable estate. The children are also entitled to claim one third of the rest of the net movable estate. The children’s one third share is divided between them equally. If a child has predeceased the testator but has left children of their own then those children (the grandchildren of the testator) inherit their parent’s share of the testator’s estate. For example, if the testator left a spouse and two surviving children, with one further child having predeceased the testator but leaving two children of their own: (1) the spouse would receive one third; (2) the two surviving children would each receive one ninth; (3) the two children of the deceased child (the grandchildren of the testator) would each receive one eighteenth; and (4) the remaining third the testator would be free to leave to whomever they wished.
  3. The testator is survived by children and remoter issue only. Here, the issue are entitled to two thirds of the net movable estate. As before, where a child has predeceased the testator leaving children of their own, those children (grandchildren of the testator) split their deceased parent’s share equally between them. The remaining third is the partie disponible.

Household effects are items of personal, ornamental, or household use which are usually situate around the matrimonial home, such as furniture. Not included is, for example, motor vehicles, cash, items which have been specifically bequeathed to another person, and items exceeding £10,000.00 in value.

What if the testator ignores légitime?

In circumstances where a testator exceeds their testamentary freedoms and leaves a will of movable estate which is not in accordance with the principles of légitime, the aggrieved party or parties can issue proceedings. This is known as having the will reduced ad legitimum modum. An application to reduce a will ad legitimum modum must be made within a year and a day from the date of death. Where such an application is made, all parties who would have been entitled to légitime receive what they ought. The bequests made by the testator in the will are then, to the extent possible, paid out of the partie disponible, if necessary with all bequests being reduced proportionately.

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