The Adviser: Here’s why you need to know about ‘usufruit’

Monday 24 June 2019

Do you know the difference between moveable and immoveable property? Many don't, and it's not until after a death that they end up confusedly trying to figure it out.

In his practice, Advocate Olaf Blakeley frequently receives questions on the topic.

He therefore delves into the issue in his latest column for Express...

"I have once again been asked about Jersey law relating to wills, and restrictions on to whom you can leave property.

The confusion occurs much of the time because of the difference between movable property (everything but land/houses) and immovable property (land/houses). I understand why people become confused, and so it may be useful and interesting to deal with this topic regarding what you can do with houses and land after death. 

Under Jersey law, there are significant restrictions in respect of bequeathing movable property in your will if you die leaving a spouse and/or children. The law provides that you only have liberty to leave one-third of your property as you please, the other two thirds is ‘controlled’ under the law.  However, the questions that have been asked of me relate not to movable property but instead to immovable property, meaning land, and bricks and mortar.  

Pictured: "The general rule is that you are entirely free to leave immovable property to whoever you like."

So, the general rule is that you are entirely free to leave immovable property to whoever you like. If you have children they have no claim over immovable property. The situation is slightly different if you are married, and I will come to this shortly. Before I do, however, I am going to explain ‘ownership.’

What I have just said is correct if you are the sole owner of the property(ies). If you own property jointly with another person (i.e. a spouse/civil partner/relative/friend) then you cannot leave your interest in your will; you don’t actually have an interest to leave. Instead, your ‘share’ of the property automatically passes to the surviving joint owner by operation of law.

So, the first thing you will need to ask yourself is, “do I own this property entirely?”  If you do, then the following is relevant; if you do not, then, as a joint owner you have no property to leave under your will. 

Pictured: "If you own property jointly with another person then you cannot leave your interest in your will."

I return now to the issue of spouses. If you own property outright (i.e. there are no other owners), and you leave a surviving spouse after your death, there is a restriction on how you may leave your property. You are free to leave the ultimate ownership of such property to whoever you like but - and this is the restriction - a surviving spouse is entitled to claim a right of ‘usufruit’ over all that immovable property.

So, what is a right of ‘usufruit’? Usufruit gives the receiver a life-time interest over the property meaning they can live in it or rent it. For all intents and purposes, they have a life-interest over the property, as though they were the owner, except they cannot sell it or make large scale modifications to it.

They need to look after the property, because while they have life-time interest they are ‘holding’ it for the next person, who is the person you have decided to leave the property to under your will. Thus, the ultimate beneficiary’s receipt of the property is ‘delayed’ until the surviving spouse also dies.

Until a few years ago, the rights of a surviving widow differed from the rights of a surviving widower. That has all changed now and equal rights apply. Furthermore, when using the term ‘spouse,’ it covers not just traditional marriages but also civil partnerships.

Pictured: Until a few years ago, the rights of a surviving widow differed from the rights of a surviving widower.

The rules are different if you die without a will. That’s something I will cover another time should I get even more questions on this topic! 

Another question that constantly crops up in this regard is, “how do I avoid the consequences of the law in regard to this right of usufruit?”

In short, if you are the owner of real property and you leave a surviving spouse, you can’t. Thus, if you do not wish for the law to operate in this way you must ensure, at the time of your death you are not the owner of real property.

If you have a particular person who you want to receive your property on your death, with no interruptions, then you ensure, before your death, that that person becomes a joint owner of the property with you. As I set out above, if this is the case, when you pass away, your ‘share’ in the property automatically passes to that other joint owner, and there are no issues of succession at all.  

Such a move does carry risks associated with any form of joint ownership, but it will get you over the mark, if you wish to avoid rights of usufruit coming about."

This article first appeared in the June edition of Connect. You can read it by clicking here.