Abeyance (from the Old French abeance meaning "gaping") is a state of expectancy in respect of property, titles or office, when the right to them is not vested in any one person, but awaits the appearance or determination of the true owner. In law, the term abeyance can only be applied to such future estates as have not yet vested or possibly may not vest. For example, an estate is granted to A for life, with remainder to the heir of B. During B's lifetime, the remainder is in abeyance, for until the death of B it is uncertain who is B's heir. Similarly the freehold of a benefice, on the death of the incumbent, is said to be in abeyance until the next incumbent takes possession.
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The most common use of the term is in the case of English peerage dignities. Most such peerages pass to heirs-male, but the ancient baronies created by writ, as well as some very old earldoms, pass instead to heirs-general (by cognatic primogeniture). In this system, sons are preferred from eldest to youngest, the heirs of a son over the next son, and any son over daughters, but there is no preference among daughters: they or their heirs inherit equally.
If the daughter is an only child or her sisters are deceased and have no living issue, she (or her heir) is vested with the title; otherwise, since a peerage cannot be shared nor divided, the dignity goes into abeyance between the sisters or their heirs, and is held by no one. If through lack of issue, marriage or both, eventually only one person represents the claims of all the sisters, he or she can claim the dignity as a matter of right, and the abeyance is said to be terminated. On the other hand, the number of prospective heirs can grow quite large, since each share potentially can be divided between daughters.
A co-heir may petition the Crown for a termination of the abeyance. The Crown may choose to grant the petition, but if there is any doubt whatsoever as to the pedigree of the petitioner, the claim is normally referred to the Committee for Privileges. If the claim is unopposed, the Committee will generally award the claim, unless there is evidence of collusion, the peerage has been in abeyance for more than a century, or if the petitioner holds less than one-third of the claim.
This doctrine is a seventeenth-century innovation, although it is now applied retrospectively for centuries; the seventh Baron De La Warr had three surviving sons; the first died without children, the second left two daughters, the third left a son. By modern law, the title would have fallen into abeyance between the two daughters of the second son, and nobody else would have been able to claim it even if the abeyance were settled; in 1597, the grandson of the third son claimed the title and its precedence. In 1604, the Baron le Despencer case was the peerage abeyance ever settled; the second was at the Restoration in 1660. Most subsequent abeyances (only a few dozen cases) were settled after a few years, to the benefit of the holder of the family properties; there were two periods in which long-abeyant peerages (in some cases peerages of doubtful reality) were brought back: between 1838 and 1841 and between 1909 and 1921.[1] Abeyance has never applied to earldoms, and the only baronies have been called out of abeyance.[2]
It is entirely possible for a peerage to remain in abeyance for centuries. For example, the Barony of Grey of Codnor was in abeyance for over 490 years between 1496 and 1989, and the Barony of Hastings was similarly in abeyance for over 299 years from 1542 to 1841. Some other baronies became abeyant in the thirteenth century, and the abeyance has yet to be terminated. The only titles other than a barony that have yet gone into abeyance are the earldom of Arlington and the viscountcy of Thetford, which are united, and (briefly) the earldom of Cromartie.
Titles in the Peerage of Scotland cannot go into abeyance. In Scotland, the eldest sister is preferred over younger sisters; sisters are not considered equal co-heirs.
It is common, but incorrect, to speak of peerage dignities which are dormant (i.e. unclaimed) as being in abeyance.
Abeyance can be used in cases where parties are interested in temporarily settling litigation while still holding the right to seek relief later if necessary. This may be considered a desirable outcome in cases where the party to the lawsuit is an organization with a transient membership and political perspective. The use of abeyance in such instances can allow such an organization to 'settle' with the party without officially binding its actions in the future, should a new group of decision makers within the organization choose to pursue taking the dispute to court.
For example, abeyance was used as a settlement method in a Canadian lawsuit involving the University of Victoria Students' Society (UVSS), the BCCLA, and a campus pro-life to whom the UVSS denied funding to. The parties agreed to settle the lawsuit by holding the case in abeyance in return for the UVSS temporarily giving resources back to the club. With this arrangement, the pro-life club held on to its right to immediately reopen the case again should the UVSS deny resources to the club in the future, and the UVSS was able to avoid an expensive legal battle it did not have the will to pursue at the time. Thus the use of abeyance provided the security of a settlement for the pro-life campus club, while preserving the student society's voting membership's ability to take the matter back to court should they choose in the future to deny resources to the club.[9]