Légitime Reform: Lessons From Different Systems Of Protection From Disinheritance (Part 1)

This article is based upon a recent report by the Law Officers’ Department on issues arising from proposals to reform or abolish légitime, Jersey’s system for giving fixed minimum rights to spouses, civil partners and children where the deceased dies testate. Using a comparative law analysis, it is argued that the question is not one of modernity but of different philosophical approaches to the claims of relatives. Common law jurisdictions tend to use a “court-based discretion” system to provide a safeguard to dependants and close relatives; civil law jurisdictions tend to provide “fixed rights”. Within such systems there is considerable variation as to what the rights should be. Jersey’s légitime system often fails to uphold fairness between children, suggesting a need for reform entirely separate from arguments as to whether should be a “fixed rights” system. However, the English court-based discretion system has considerable uncertainty in its application. If, on the other hand, the aim is to meet the financial services concern that “forced heirship” deters high net-wealth individuals coming to Jersey, this could readily be met through trust planning without creating concerns as to a two-tier system of law.