Contesting disqualification

Contesting disqualification

"I'd like to know whether it's possible to defend oneself in the event of disenfranchisement. Following a remarriage, my father has gradually ceased all contact with me and my children, leaving only my brother and my nephews. I'm afraid they're joining forces and doing everything they can to disinherit me. Is there anything I can do in advance? How can I defend myself if I'm disinherited?

A. N.

Thank you for your reaction to our column published on Monday 27 January 2014. In order to avoid too much repetition, the conditions for disclaiming a relative are very briefly summarised as follows: either the heir has committed serious behaviour constituting a breach of family law obligations or criminal offences, or the heir is over-indebted and the assets would be at risk of passing directly into the hands of creditors. It should also be remembered that disinheritance is the only way of depriving an heir of his reserve.

Generally speaking, shares of the estate in excess of the reserve may be allocated at the discretion of the deceased, who is free to favour one of his children to the detriment of another, even without cause.

It is not possible to protect yourself in advance against a possible expulsion. However, there are ways of defending against unjustified disinheritance. The excluded heir can apply to the court to have the disinheritance clause annulled or to bring an action for reduction. The first of these avenues consists of arguing that the disinheritance clause is invalid, for example if the deceased was no longer capable of disposing, while the second possibility will be preferred if the substantive or formal conditions specific to disinheritance are not met (see on this subject the chronicle of 27 January 2014 for the conditions for disinheritance). In fact, an heir who believes that his reserve has been adversely affected always has the right to apply to a judge to have this fact established and to require the other heirs to return a share of what they are entitled to according to the will of the deceased so that the said reserve remains intact.

You should also be aware that in cases of serious misconduct against the deceased, a pardon granted by the deceased can play an important role in cancelling an exoneration clause.

According to your explanations, the conditions for disinheritance seem far from being met, since a disagreement is not sufficient. Therefore, unless you can prove otherwise, your father will not be entitled to deprive you of all rights in his estate.