News and Insights

For several years, Viberts have been acting in the important case of Mauger v Mauger before the Island’s Courts. The Jersey Court of Appeal has just confirmed the legal position maintained from the outset by Viberts in a case that examined the rights of a widow and children, where the deceased had gifted valuable assets to his wife during his lifetime and where he left a will of his movable estate (for example, cash, investments, company shares) leaving the entire estate to her. 
                                                                                                                 
Under Jersey law, a spouse or child of a deceased may, within a year and a day of the date of death, be ordered to return to the estate the value of movable assets gifted to them during the deceased’s lifetime. This is known as making “rapport” or return. This is usually done in tandem with the spouse/civil partner or child applying to the Royal Court for légitime. Légitime gives any surviving spouse, civil partner or child of the deceased the right to inherit a certain portion of the deceased’s movable estate, regardless of the terms of the deceased’s will of movables. Under légitime the total estate, including the value of any movable gifts which are subject to rapport claim, are split into thirds. In this situation, by law one third of the value is required to go to the spouse/civil partner, one third to the children and one third under the terms of the will. 

In the Royal Court’s 2023 Mauger v Mauger judgment, the Court decided that a beneficiary may “rest on their advances” (i.e. keep lifetime gifts given to them within the lifetime of the deceased), regardless of the value of the gifts in question. That is to say, a person during their lifetime may gift away the entirety of their movable estate, with a view to circumventing the centuries-old heirship rights of their spouse (now including civil partners) and/or children to receive a portion of their movable estate. The Royal Court made this decision, despite noting that, to gift away the entirety of a person’s movable estate prior to death, could in certain circumstances amount to a “fraude on the légitime” (i.e. it would deliberately deprive the deceased’s children and/or spouse/civil partner of their legal entitlement to a portion of the movable estate under Jersey law).
 
The widow of the deceased claimed that her husband’s movable estate was worth a nominal sum, being comprised of bank accounts totalling £833.82, and a twenty year old BMW. To the contrary, Viberts, on behalf of one of the deceased’s sons, argued that significant gifts received by the widow during his father’s lifetime (including a treasure trove payment from the find of a hoard of Roman coinage in a family field and the shares in the family company) should form part of the movable estate. The family company owns property in the Island. 
 
The Court of Appeal has reversed the Royal Court decision, confirming the position always maintained by Viberts. Viberts’ lawyers, Advocates Giles Emmanuel, Michelle Cabot and Solicitor Rebecca Gueno and Advocate Charles Sorenson successfully acted for the son. The Court of Appeal decided that to gift away one’s entire movable property during one’s lifetime, and not to require a surviving spouse/civil partner or child to make rapport of the value of lifetime gifts exceeding the value of a third of the estate, is inconsistent with long-established inheritance rights of the “légitime” rule. In essence, a spouse/civil partner or child must account for lifetime gifts received when dividing the estate into thirds. The Court of Appeal was clear: for a Court to order to the contrary and rule that an individual is free to dispose of his entire movable estate as he sees fit requires a change to the law by the States Assembly. It is not for the Royal Court to change the law in this manner. 
 
This is not to say that légitime will not one day be abolished, or that the principles of rapport will not be altered. But for now, they remain, as they have been for centuries, enshrined in and clearly part of Jersey’s customary law.
 
For advice on contentious estates disputes and estate planning matters, please do not hesitate to contact Giles, Michelle or Rebecca.