How to Contest an Estate
How to Contest an Estate
– Step 1: Defend your rights in the event of concealment of inheritance
– Step 2: Have the deceased’s last will and testament changed
– Step 3: Challenge the valuation of the deceased’s assets
– Step 4: Challenge the succession and the sharing operations
The death of a person can be a source of conflict between his or her heirs, or between the heirs and the legatees: in particular, the will of the deceased may be contested or even denied. There are several causes of conflict, and there are as many types of disputes as there are successions.
You can show your disagreement at the time of death on several grounds permitted by law. Here are the steps you can take to dispute an estate.
1. Defend your rights in the event of concealment of inheritance
You can defend yourself against fraudulent manoeuvres that taint the proper settlement of the deceased’s estate. Concealment of inheritance is a fraud against which you can take action.
Invoking inheritance fraud
The law allows you to claim inheritance fraud if you can prove that a person has deliberately attempted to conceal an heir’s existence or misappropriated part of the deceased’s assets for his or her benefit.
In practice, it is up to you to prove that this heir is in bad faith:
– concealed or destroyed an unregistered holographic will;
– has drawn up a false will in his favour, for example, by imitating the handwriting and signature of the deceased;
– concealed a donation;
– has stolen furniture or money…
Take legal action
If you have succeeded in proving the fraudulent manoeuvres carried out by an heir, you must take legal action to have the concealment of the estate established and sanctioned.
The judicial court (formerly the district court), at the request of your lawyer, will take protective measures to protect the assets of the deceased’s estate and prevent any further misappropriation.
Good to know: this protection by the judge can go as far as affixing seals.
An inventory is also requested by the judge.
Receipt of inheritance is punishable under Article 778 of the Civil Code:
– The perpetrator may be ordered to pay damages.
– The judge will impose a civil penalty; there is no criminal penalty for receiving stolen property.
2. Reclassify the last will and testament of the deceased
When the deceased’s estate is opened, the reading of a legacy or the knowledge of the charges and conditions of a donation may give rise to questions, or even doubts, on the part of the heirs, including yourself.
If you believe that the deceased did not have full capacity at the time the deed was drawn up, or if you have doubts about the terms of the arrangements made, you can take action.
Challenge the interpretation of the deceased’s last will and testament
You have the possibility of proving that the acts carried out by the deceased during his lifetime can be interpreted differently at the time of his death.
In practice, the heirs often come up against the question of whether a sum of money is a loan or a donation.
Thus, determining the real nature of an act and the will of the author of the gift or bequest is not always easy, and can be a source of dispute.
Ask for the requalification of the deceased’s acts
You must provide the judge with proof of what you are claiming, i.e. prove that the acts carried out by the deceased during his lifetime must be interpreted differently.
The judge is sovereign in his interpretation: he makes his decision on the basis of the evidence and allegations provided to him.
Act to annul a will
You have one year from the disclosure of the problem, when you notice that the will may be called into question.
The annulment of the will is requested by petition addressed to the court of law of the place where the succession is opened, and the assistance of a lawyer is compulsory.
Good to know: you do not have to carry out any particular formality (neither petition nor lawyer) if the will is not notarised; it is sufficient to invoke its nullity before the notary.
3. Challenge the valuation of the deceased’s assets
The valuation of the estate’s assets is essential: it is on this basis that the shares of each heir are calculated. If you disagree, you can take action.
Good to know: you can even ask for the appointment of a legal expert.
Ask for a revaluation of the estate’s assets
The difficulty of valuation arises above all for property previously donated by the deceased, the beneficiaries of which are obliged to report. Thus, if at the time of the deed of gift the terms and conditions for the return of the donated property and its value were provided for, the valuation must be carried out in accordance with the provisions of the deed, and no dispute is possible.
Important: if no amicable agreement is reached between the heirs, you can contest the property’s reported value.
Act to contest the valuation of an estate
Suppose no amicable agreement is reached between the heirs on the valuation of the property to be reported. In that case, an expert is appointed by the judge to value the property and propose a valuation to the judge. The succession is then settled judicially.
4. Contesting the succession and the sharing operations
If no amicable agreement is reached between the undivided co-owners at the time of the division, it is possible to contest both the succession and the division operations.
The distribution of the deceased’s entire estate among his heirs is established:
– according to the last will and testament of the deceased, who has designated the beneficiaries and recipients of his property;
– or according to the instructions of the heirs themselves, who agree amicably on the distribution.
Good to know: the law states that the heirs may remain in undivided ownership, but it is also possible to request the division of the estate.
Some heirs may request the allocation of one or more specific assets. If the heirs fail to reach an agreement at this final stage of the division of the estate, you can contest the division if you feel that your interests have been prejudiced.
Please note: a partition can only be annulled on the grounds of error if the error relates to the existence or the share of the rights of the co-sharers or to the ownership of the property included in the partitionable mass. An erroneous evaluation of the property to be shared or of an allotment whose value is less than that to which the co-sharer was entitled to claim gives rise to an action to supplement the share on the grounds of lesion if the conditions are met.
Action to make up for the division
You may bring an action to make up for a share if you believe that you have been deprived of at least 25% of what was due to you at the time of the sharing.
The judges consider cases where the lesion is due to an error in establishing the divisible assets and where the deceased’s property was wrongly valued. It is assessed on the day of the partition and not from the date of death.
Good to know: do not delay in taking action; the action to fill the gap in the partition is time-barred (expiry of a period after which legal action can no longer be taken) by 2 years from the date of partition.
Action to reduce a shared gift
You can take action to reduce a shared gift if you feel that you have been wronged: your reserved share has been affected. This challenge must be made on the death of the donor.
This action is time-barred after 5 years from the opening of the inheritance operations, or after 2 years from the day on which you became aware of the infringement of your inheritance reserve.
Action for annulment of a shared gift
You can apply to the courts to have the shared gift annulled if you have been forgotten during the transaction, or if you consider that fraudulent manoeuvres by other heirs have caused you real and certain harm.
You have a period of 5 years to act from the date of the deed of gift-sharing. You must prove to the judge that you have an interest in taking action.
Read more: How to Settle an Estate Litigation