The testamentary partition: little-known method of dividing the estate

The testamentary partition is above all a will that can take several forms, including: the holographic form (i.e., handwritten) or the authentic form (will dictated to a notary and two witnesses or two notaries).

The interest of the testamentary partition lies in the fact that if one of the heirs refuses its application (notably because the share allocated to them does not please them), they cannot request anything else in the succession (this is provided for by article 1079 of the Civil Code). The only limit to the testamentary partition lies in a possible infringement of the heirs' reserved share: if an heir has not received at least the amount of their reserved rights in the succession, they may take action (known as an action for reduction) so that the other heirs ultimately return the excess received.

Indeed, if one of the lots is not sufficient to fulfill an heir's rights, it means that the lots of the others are, in value, too large.

How can a specialized inheritance lawyer help you?

A partition will not being a trivial act, it is necessary to be assisted by a qualified professional in order to benefit from informed advice. For example, it can be noted that a partition will will be annulled if it concerns assets that do not belong entirely to the testator.

This is what the Court of Cassation recently ruled (on December 5, 2018) in a case where both parents, through identical wills, intended to proceed with the division of all their assets: both their own property and their joint property.

The Court of Appeal, upheld by the Court of Cassation, considered that both wills were void in their entirety because each testator had disposed of assets over which they did not have full control.

It is therefore strongly recommended to consult a lawyer specialized in inheritance sharing before making arrangements for your estate, which will ensure the validity of the wishes set out on paper.