The settlement of succession is always a very delicate moment in a family, even for those who thought themselves welded, it is at that moment that stands out antagonisms sometimes very old. Few families, however, think about organizing and anticipating these situations. Succession result, abuse of weakness …. unfortunately it is not only among others. The article below is here to convince you.
Each year, about five hundred thousand successions are opened and many are those where difficulties arise. It is clear that these disputes could often be avoided by anticipating the transmission of assets, by putting in place measures to protect people that age and illness weaken; unfortunately, in practice few families use it.
Without a thoughtful organization of the transmission of a patrimony, without measures of protection of the weakened persons, when the succession opens at the time of death, whereas it must in principle lead to an amicable division, frequently it is impossible the judicial division is required.
It should be noted that inheritance disputes affect all areas of inheritance law. They oppose more and more regularly the heirs of the deceased to the surviving spouse, at a time when blended families multiply.
Sometimes conflicts arise between the heirs themselves when the veto of one of them creates a situation of blockage, this is particularly the case when one of the heirs opposes the sale of an apartment under the succession he occupies.
Other conflicts arise sometimes following the contestation of operations carried out by the deceased such as the subscription of life insurance contracts, the writing of a will or the making of a donation.
Finally, conflicts also arise when an heir is suspected of having abused the weakness of the deceased, or when a property has been diverted from the estate. In this post, we discuss the themes of abuse of weakness and inheritance. Subsequently, the question of judicial division, the tools for removing the inheritance blockages, the remedies available to the heirs who wish to challenge the acts of disposition attributed to the deceased will be dealt with later.
Abuse of weakness
The media often echo stories about famous people who are victims of abuse of weakness. In law, the abuse of weakness is legally defined as the exploitation of vulnerability, ignorance, the state of psychological or physical subjection of a person in order to lead to commitments that she can not appreciate. the scope.
The victims of abuse of weakness are the elderly (and especially women who live alone), infirm, sick (Alzheimer’s disease for example), disabled or pregnant women. They are also people who have psychological problems or weaknesses (depressed or schizophrenic for example) or do not speak French well. In the secret of the cabinets, the narrated stories are edifying and sadly much more numerous than one thinks.
Thus I was led to intervene as counsel in a case where a holographic will was held against a person with advanced Alzheimer’s disease.
What is the risk for the person who is guilty of such an offense?
Firstly, a penal sanction as provided for in Article 223-15-2 of the Penal Code and also by the law of consumption, pursuant to Article L122-8 of the Consumer Code, if the offense is committed in the context of commercial transactions.
The prescribed penalty is three years in prison and a fine of € 375,000. It can be pronounced on the complaint of the victim when the act committed is particularly prejudicial to him.
Beyond a penal sanction, the abuse of weakness is on the civil plane considered as a vice of consent allowing the cancellation for example, of a liberality like a will or life insurance. The victim may also seek damages.
The Criminal Division of the Court of Cassation recently addressed this issue in its decision of December 16, 2014, and stated that “constitutes a seriously prejudicial act entitled to compensation the fact for a vulnerable person to dispose of his property by will in favor of the person who conducted it. ” This solution is not new but reminds that despite the absence of prejudice within the meaning of the Penal Code, the abuse of weakness is applicable to wills.
The heirs will be able to use it to claim damages. The abuse of weakness can also result in the revocation of an heir’s rights for ingratitude.
The inheritance is not defined by the Civil Code. The definition has been established by the courts.
Since 1890, case law has defined inheritance as any act, behavior or voluntary process by which an heir attempts to appropriate a share in the succession superior to that to which he is entitled, and thus breaks the equality in the division of inheritance.
Courts sanction the concealment when it is possible to prove an objective act committed by an heir with the fraudulent intent to distort the sharing operations to the detriment of one or to the advantage of the other.
Can be sued for estate inheritance, the heir who will have:
- subtracting or concealing property dependent on the estate, such as withdrawing money from a bank account (CA Paris, 2 December 1987),
- failed to disclose the existence of estate assets,
- makes statements leading to the drafting of an inaccurate inventory,
- conceal an heir,
- made a false will,
- concealed a donation,
- concealed a debt to the deceased,
The heir guilty of receiving
- is deemed to accept the estate outright. He can not renounce his rights in the succession, even if he is in deficit;
- is deprived of his share on all the goods concealed which are entirely attributed to his coheirs;
- must return all the income produced by the reclaimed property he has enjoyed since the opening of the succession, even if the hereditary reserve has not been reached.
- may be required to pay damages to his co-heirs.
If the concealment arises from the concealment of an heir, the rights of the concealing heir are diminished by the return of the concealed heir.
The concealment heir may always escape receiving penalties if, before any prosecution, he spontaneously returns to the estate the property he held, as stated by the Court of Cassation in a judgment of 14 June 2005.
As soon as a death occurs, it is possible for any heir, legatee, or creditor empowered to take all necessary measures to prevent any slippage. It is therefore recommended to have a notary draw up an inventory of the succession as soon as possible so that if a property disappears after the act of inventory, it will constitute indisputable proof that a property suitable for an heir belonged to the deceased on his death. It is also recommended to affix the seals on the property of the deceased by addressing the Registry of the District Court.
This is the first batch of possible measures to avoid litigation when opening an estate. Legal tools also exist to guard against an abuse of weakness. This may include, for example, anticipating any physical or psychological deterioration by setting up a future protection mandate. This mandate will make it possible to designate the person who will take care of the property of the person concerned if he is no longer able to do so. This precaution will avoid the heirs’ heavy task of placing a relative under judicial protection.
The trust-protection contract that transfers asset management to a third party authorized by regulation may also be an interesting tool for a person who feels weak position to face the stress of managing a heritage. The trust will allow him to transfer this charge to a seasoned professional.
These few examples demonstrate that Anticiper is, therefore, the keyword to avoid many inheritance disputes and it is even more crucial to avoid an always harmful judicial division or disputes between children and non-parent spouse.