Ryan-Cox (on her own behalf and as representative of Theobalds Cox deceased) v Cox (as representative of Rhona aka Lorna Mary Cox) (Saint Lucia)

Legal dower under the superseded Civil Code of 1879 attached only to the immoveables identified in article 1347: one half owned by the husband at marriage and one half later acquired by succession from ascendants. Property bought during marriage with borrowed funds was outside that class and could not attract legal or conventional dower. A marriage covenant excluding dower therefore did not prevent a husband from disposing of such property by will. Even where property could otherwise have been charged, exclusion freed it from the charge. The rule against altering marriage covenants after marriage, or conferring inter vivos benefits, did not invalidate a testamentary disposition. Dower arising from an earlier marriage did not extend to property later acquired outside article 1347.

The appeal concerned competing claims by the children of two marriages to the Champagne Estate in Saint Lucia. A 1948 marriage contract excluded dower. The estate was bought during that marriage in 1954 with borrowed funds. A 1959 will gave the second wife a usufruct and the children of the second marriage the bare ownership.

Wilkinson J held that the exclusion of dower prevented the second wife and her children from benefiting under the will and invalidated the dispositions. The Court of Appeal of the Eastern Caribbean Supreme Court allowed the appeal and set aside those orders on 19 December 2013. The central questions before the Board were whether the marriage covenant restricted testamentary disposition and whether the estate was subject to legal dower arising from the first marriage. A new legal argument was also raised for the first time before the Board.

Lord Hodge delivered the judgment of the Board.

1. Disposition. The appeal was dismissed. The Board advised that the Court of Appeal had correctly set aside the first-instance orders. Written submissions on costs were invited within 21 days.
2. The matrimonial-property regime in the Civil Code of 1879 derived from French customary law. Articles 1180 and 1195 established the relationship between community property and immoveables owned at marriage or acquired by succession. Article 1340 described legal dower as a charge in favour of the wife as usufructuary and the children as owners, but article 1347 defined the assets subject to that charge. They were one half of the husband’s immoveables owned at marriage and one half acquired during marriage by succession from ascendants.
3. The exclusion of dower under article 1344 did not restrict testamentary freedom over property outside that class. Even if property could otherwise have been charged, exclusion would free it from the charge and permit testamentary disposition. The Champagne Estate was bought during the second marriage with borrowed funds, so it could never have been subject to legal or conventional dower.
4. Article 1185, which prevented alteration of the marriage covenant after marriage and the conferral of inter vivos benefits, did not assist the appellant. The testamentary gift neither altered the covenant nor constituted an inter vivos gift.
5. The proposed first-marriage dower argument also failed. Article 1347 excluded the Champagne Estate because the husband neither owned it before the first marriage nor acquired it by succession. Article 1349, dealing with dower on successive marriages, was inconsistent with the contention that first-marriage dower extended to the whole estate at death. The Board also noted that there was no evidence of other qualifying immoveable property or of any reinvestment of its proceeds.
6. The Board stated that it ordinarily does not permit a new point of law to be argued without the benefit of lower-court judgments, save in exceptional circumstances, citing Pillai v Comptroller of Income Tax [1970] AC 1124, Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1 and Deosaran v Barrow [2006] UKPC 33. The Board nevertheless answered the new argument through its analysis of legal dower.

1. Privy Council: In [2019] UKPC 32, the Board dismissed the appeal and advised that the Court of Appeal had been correct.
2. Court of Appeal of the Eastern Caribbean Supreme Court (Saint Lucia): On 19 December 2013, Pereira CJ, Michel JA and Mitchell JA (acting) allowed the appeal and set aside Wilkinson J’s orders.
3. First instance: Wilkinson J allowed the claim, declared the testamentary dispositions concerning the Champagne Estate invalid and ordered the second wife to vacate and distribute the estate to the children of the first marriage.