On 25 October 2013 the so-called ‘Downton Abbey’ law, which would allow female heirs to succeed to hereditary titles, received its second reading in the House of Lords and will now go to a committee of the whole House.
The proposed changes would enable the current title holder (referred to as the ‘incumbent’) to make an election that his eldest daughter should succeed to the title in place of a younger son or more distant male relative. For this to happen, the incumbent would deliver a petition to the Lord Chancellor confirming that he has taken all reasonable steps to discuss his intention with his legitimate children. There is a mechanism for legitimate sons, but not more distant relatives, to object, for example if they are likely to suffer financial hardship or if succession to the title has already been promised to them.
It is by no means certain that the bill will become law – it still has to pass the committee stage in the House of Lords and then get through the House of Commons, but its enactment is eagerly awaited by many who feel that it would correct an injustice. As the fifth Earl Balfour tells us, ‘When the Royal family have decided that male primogeniture is outdated, it does seem strange and against all modern concepts of equality that a daughter is not able to inherit a title that until now has passed via “heirs of the body male”, an expression which itself is open to interpretation.
‘Lord Lucas’ Bill is to be commended as it is crafted to redress this while offering an opt-out for the present generation where such a change could lead to blue-blooded internecine warfare.’
The draft legislation would not only apply to hereditary titles in the peerage (duke, marquess, earl, viscount and baron) but also to baronetcies (as possessed by, eg, Sir Mark Thatcher). Hereditary titles usually pass to the eldest male heir with only very few English titles passing through the female line (although most Scottish peerages do already pass to the ‘heirs general’, so women can inherit them). The precise devolution of hereditary titles varies and will depend on the terms under which the title was originally granted – usually by letters patent – and any subsequent amendments.
Lord Lucas, who presented the bill to the House, emphasised that this was a ‘permissive bill’ so it will not apply automatically. He went on to say that it did ‘not seek to compel peers to change the pattern of inheritance of their titles. Peerages are complicated things. In many families, there is a pattern of legitimate expectation that a younger son will be the one to inherit. He may have settled his life on the expectation that he will take on the rights and obligations that go with a particular title.’
He concluded that ‘in order not to cause great disruption to already settled lives, we are best to respect the slow march of history and say that making this bill permissive rather than compulsory is the best way to go about things.’
Where a person has more than one title, each title is treated separately so this may mean that in the future they could be split with those where the incumbent obtains a certificate during his lifetime passing to the eldest female child leaving other titles unaffected and passing to the eldest male child – perhaps a good way of bringing spare titles back into circulation.
While the ability for sons to object may be sensible, there is certainly scope for disputes, as the draft law also purports to cover interests in trusts and estates or other property limited or settled to devolve with that peerage – although in practice these are now quite rare. This risk was highlighted by Lord Northbrook who, when commenting on the factors that the Lord Chancellor has to take into account when considering an objection, said it would be very difficult to demonstrate whether changing the succession would be ‘grossly inequitable’ and ‘whether or not the succession had previously been promised to the child making the objection’.
The proposed legislation would also extend the right for husbands or civil partners of any person who holds a title to use the courtesy title ‘the Honourable’ although it still leaves various anomalies in place: for example, there is no suggestion that the husband of the daughter of a duke, marquess or earl would be given an equivalent honorific to his wife’s courtesy title ‘lady’, even though the wife of the son of a duke or marquess is.
The ability to allow female heirs to succeed under the proposed legislation will be quite limited and in particular it will only apply to daughters of the incumbent. Julian Fellowes (now Baron Fellowes of West Stafford) has long been advocating a change to the law to enable his wife Emma to succeed her late uncle, the third Earl Kitchener, to prevent the title from dying out. He has been quoted as saying that he finds it ‘ridiculous that a perfectly sentient adult woman has no rights of inheritance whatsoever when it comes to a hereditary title, I think it’s outrageous, actually.’
Ironically, even if the proposed legislation had been enacted before the third Earl Kitchener’s death in 2011, it would not have helped Lady Fellowes to succeed to the Kitchener title as the ability to nominate a female successor only extends to the incumbent’s daughter and (as drafted) does not allow more distant female relatives to succeed.
Robert Brodrick, partner, and Freddie Bjørn, associate, Payne Hicks Beach