When to request the reduction of a donation or a legacy in a succession indivision?

A succession opens upon the death of a person: their estate is transferred to their heirs at the very moment of death. The heirs then form what is called a succession co-ownership, and it is up to them to divide the assets, which gives rise to numerous disputes.

It sometimes happens that the deceased left a will favoring one child or another (it is often said that some are disinherited, but in reality their share is simply reduced compared to that of others).

It must however be remembered that the reserved share for children (the reserve share) is not automatic: if the heirs do nothing, then the inheritance can be transferred to third parties in its entirety.

It is therefore necessary for heirs (like the children of a recently deceased rock star) to ask the court to respect their reserved share of the inheritance.

Within what time limit must the judge be seized?

The Civil Code gives us a procedure to follow which consists of saying that one must request the protection of their reserved share within 5 years of the death, or within two years from the day one knows that the reserved share is in danger, without ever being able to exceed 10 years from the death.

It must therefore be remembered that from the first consultation with your lawyer specialized in inheritance law, you must consider the time limit within which to act because the deadlines are very short (the deadline was previously 30 years).

Which court has jurisdiction?

It is the high court of the place of the deceased's last domicile that has jurisdiction to hear claims between the heirs (Article 45 of the Code of Civil Procedure). It is therefore necessary to determine the place of the last domicile beforehand in order to avoid the risk of bringing the claim before a court that would not have territorial jurisdiction.

In what form should the request be made?

One might have thought, in application of the Civil Code text, that the request for protection of the hereditary reserve (known as the action for reduction) had to be brought before the High Court (tribunal de grande instance) in order for the limitation period to be validly interrupted. However, in a ruling of January 10, 2018, the First Civil Chamber of the Court of Cassation indicates that the request for reduction of gifts is not subject to any formalism, and this request could arise from a request for judicial partition.

Such a position of the High Court is quite surprising since a request for judicial partition is a specific request that will lead to a judgment referring (most often) the heirs to the notary.

What to remember

In its latest case law, the Court of Cassation considers that a request for judicial partition constitutes a genuine request for reduction of gifts. Such a decision will need to be confirmed in other rulings, but as it stands, it is not satisfactory.