When several heirs inherit, they share the estate in indivsion and may experience difficulties to agree to decide what to do with the estate that inevitably deteriorates because of ineffective maintenance. You know from an earlier post on this blog that indivision affects not only the legal title but also management powers.1 Practitioners who have been educated in a common law country easily distinguish between title and management thanks to Equity even if they do not practice trusts. This earlier post illustrates the fact that the court may focus on powers to solve management. Nevertheless, this case is a bit peculiar to a French lawyer. It may weaken the legal title as Equity does.
A lawyer who has at least some knowledge of Equity and trusts knows that Equity and common law do not address the same issues.2 A French lawyer understands this but may feel uncomfortable with competing powers that may overshadow the principle of succession universality that requires each heir to own a share of everything that has to be divided between heirs while an estate is not seen in English law as a cake that has to be divided into shares but as a bundle of elements that are bound by powers that enable someone to look after the coherence of the ensemble over time despite divergent interests between stakeholders. A cake does not move under the influence of the stakeholders' interests while a bundle of items may be dismantled because of them.
When one focuses on the interests of the stakeholders, one has to pay attention to any aspect of the estate from conflict of laws in private international law to the validity of the will that materialises the estate that cannot be reduced to a list of items that are about to be distributed. The French descriptive approach may hinder estate maintenance and thus delay estate liquidation. This is why a new version of article 840 and following of the French civil code will enable the judge to use specific powers to deal with several aspects of succession that may be a source of conflict and therefore to facilitate estate liquidation.
Stay tuned!
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Burrows, A. "We Do This At Common Law But That In Equity". Oxford Journal of Legal Studies 22, no 1 (2002), p. 1‑16. https://doi.org/10.1093/ojls/22.1.1. ↩