You can’t prevent your heirs from contesting your will

Some parents think of preventing conflicts between their heirs by inserting in their will a “penal clause of inheritance”: anyone who contests their will would be deprived of all rights to the “available portion”, that portion of their property that they can bequeath. freely, because it does not encroach on the “hereditary reserve”.

However, the child can contest the will and then have the clause annulled, as the following case shows. On January 10, 2008, André X (all first names are changed) wrote his will as follows: “In the event of disputes for the sharing of cash, objects or goods whatsoever, by any of my three children or by several of my three children, I deprive the latter or these latter of all rights in the quota. available, and its share, or their shares, will increase the share of the others or the share of the other. “

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When he died in 2013, two notaries established a plan to share his estate, which his daughter, Sylvie X refused. In 2015, the latter assigned her two half-brothers, in order to obtain a judicial partition (notary appointed by the judge). The brothers then ask that she be deprived of her share of the available quota..

Fundamental right

The tribunal de grande instance, then the Paris Court of Appeal ordered the judicial partition, “ in view of the disagreements of the heirs “. But they invalidate the penalty clause, because it would risk “Unduly infringe the absolute right, recognized to any joint owner, to request judicial partition », As the court explained, on May 26, 2021.

Their decision applies recent case law of the Court of Cassation – itself inspired by European case law -, according to which the penalty clause must be subject to a “Proportionality check”. When it infringes a fundamental right, such as “Right to a fair trial”, guaranteed by the European Convention on Human Rights (article 6), the judge can only validate it if a reason of general interest justifies it. Otherwise, he must declare it “Unwritten”.

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In 2015, the Court of Cassation thus quashed a judgment which had validated a penal clause prohibiting the contesting of a shared gift, without having previously noted that it involved “Excessive interference with the right to sue” (14-29.285, followed by 19-24.407). In 2016, it ruled unwritten a clause infringing the right of the joint owner not to remain in joint possession (15-13.312).

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