National Assembly resumes work on modernisation of Civil Code |12 March 2020

The National Assembly, sitting in committee stage, yesterday resumed with its work towards modernising Book Three of the Seychelles Civil Code, under the speakership of Deputy Speaker Ahmed Afif.

As was the case during Tuesday’s sitting, Attorney General (AG) Frank Ally, Vice-President Vincent Meriton, senior legal draftsperson Victor Pool and consultant to the judiciary Professor Tony Angelo were present to guide the assembly.

Chairman of the bills committee, Honourable Bernard Georges led the assembly through Article 821 which comprises over 2,000 clauses pertaining to co-ownership through to Article 836. There was some confusion and differing lines of thought as to the provisions of the Code and the current law with regards to the courts function in property matters when the property is co-owned and the powers and rights of co-owners.

AG Ally proposed that the reforms may in fact give rise to other legal issues whilst also noting the relevant legislation, the Immovable Property and Judicial Sales Act, an extensive law that sets out the powers of the courts in resolving property disputes among co-owners.

Similarly, numerous members of the assembly proposed amendments to the clauses under the article, most notably (1) and (2), although, Honourable Georges outlined other provisions in the law for the appointment of a fiduciary, and adding that Article 821 is a default provision and does not bind any individual to perform any obligation and that it is intended to avoid situations in which a person is forced to part with their property, for instance through auction sales, held by the courts.  

The assembly voted to approve Articles 815 to 836, on co-ownership by 22 votes in favour. Members also moved to add an additional clause, Article 837, which is to be drafted by Professor Angelo, for the assembly to vote on today.

Honourable Georges continued on to note the provisions under Article 870 pertaining to the responsibility of heirs when a debt on the property applies, through to Article 909, which stipulates categories of persons who cannot inherit. Again, there were debates about the inclusion of home carers as persons who can stand to benefit from a property and a clause (Art 910) preventing home carers from being gifted by inter vivos or by will, to be considered by the assembly during today’s session.

In regards to Article 913 which applied to disguised donation, and which is being replaced by a maintenance provision, AG Ally noted that the provision is an important one which relates to how succession will be dealt with in future.

As further elaborated by Honourable Georges, the provision is a new one, which will serve to replace the old provision dating back to 1804 after the French Revolution and which made provisions for reserves, depending on the number of offspring a person has.

“The committee is proposing that we change this completely. We are suggesting that what applied in 1804 in France, has no necessity in the modern day Seychelles. We are suggesting that rather than have a reserve that we leave it to the person, through testamentary freedom to do whatsoever they wish with their property following their death, as they would when alive,” Honourable Georges stated, noting the need to include a safeguard clause for dependents who can prove that they were somehow being maintained by the deceased at the time of death.

Numerous members of the assembly expressed support for the new provision emphasising numerous scenarios in which someone may not want someone whom they would have never wanted or who they feel is unworthy of benefiting from their estate and property.

Honourable Georges encouraged individuals to draft testaments detailing who will benefit from their property and estate.

Article 914 pertains to gifts given while someone is still alive (inter vivos), 932 and 933 when a gift is binding, gifts to wards 939, if there is a mortgage on the gift, 942 wards cannot claim restitution of the gift without a transcription, 943 (ii) gifts applying to property that exists, 947 articles do not apply to gifts under an agreement made under Article 1400 (a new provision pertaining to domestic property and including agreements such as prenuptial or postnuptial agreements).

The discussed provisions and minor amendments to Articles 893 to 958 pertaining to Gifts inter vivos and wills were approved by 22 votes.

The following section to be nitpicked by the assembly focused on wills and testaments, the last section under succession and which covers contracts and procedural matters, a section which according to Honourable Georges remains largely unchanged. Honourable Georges talked the members through Articles 981, 982 pertaining to wills for persons in the armed forces, Article 985, testaments made in locations on lock-down or where a notary is not available, such as in the circumstance of being on an isolated island or where there is a contagious disease, before removing Article 1000, on account that it is not necessary to modern day Seychelles and making minor amendments to the wording of different clauses.

Article 1001 of Book Three related to wills testaments which do not comply with the requirements and which holds no value, what a person can dispose of, Article 1007 pertaining to holographic wills and testaments which are entirely handwritten and signed by the testator. Other clauses covering immovable and moveable property, pure and simple legacy, all of which are not of legal interest or of interest to the general public, comprising provisions that are “obvious but included in the law”, Honourable Georges said.

Article 1025 which covers executors and, was hotly debated by members of the assembly, although once again, the assembly were reassured that the heirs have residual powers imparted by law, to take action against an executor. Articles 967 to 1078 were approved as amended, unanimously by 26 votes.

As for the section of the book dedicated to obligations, including contractual obligations, set out in Article 1101 onwards. Honourable Georges once again set out for the members the provisions including offer, acceptance and contractual obligations, consideration and circumstances in which contracts are not binding (Article 1113).

Before concluding the session, Honourable Georges noted that he will not be able to lead the assembly until 10am this morning, after tending to a matter before the courts. Thus, the assembly will also take a vote on the last section pertaining to contract and contractual obligations.

During yesterday’s session, leader of the opposition Wavel Ramkalawan, and other honourables also pronounced a few words to express the assembly’s solidarity with the Seychellois diasporas and others living in Italy, one of the country’s most affected by the COVID-19 epidemic, wishing that their lives be restored to normalcy at the soonest.

Laura Pillay