Five forced heirs, no undivided rights

Tue 24 November 2020, Philippe Ropenga Forced heirship Estate management

This blog casts a different light on French law. It has started by showing that some consequences of forced heirship were largely underestimated because forced-heirship avoidance was more appealing to Anglo-Saxon practitioner and clients than management issues.¹ You know that estate management in the context of forced heirship can be really difficult and you pay a great attention to it since you still enjoy my French variations on English trusts² a lot. I am happy about it. I have shown that forced heirship was a hard rule in French successions and that legal institutions could be used to add flexibility to estate management.³ A case decided by the French Cour de cassation that is the supreme court that deals with civil, commercial, and criminal cases gives me the opportunity to add a detail to your picture of French law. Let us examine the link between forced heirship and indivision to understand when the succession mandate applies (1). It reflects the distinction between title and management (2).

1 Forced heirship and indivision

It may seem that forced heirship and indivision are tightly linked (1.1). It often is true, but this link can be looser (1.2).

1.1 A tight link

Indivision is a state that takes place i.a. before the distribution of rights to undivided co-owners, such as heirs during a succession. Indivision takes place in case of plurality of heirs, not necessarily forced heirs. Forced heirship can make things more complicated because a forced heir cannot be deprived of his share by the will left by the deceased who could otherwise draft a will to exclude an heir who may trouble the management of the estate that he will leave behind. A testator can however decide to give his entire estate to one of his forced heirs since 2006.⁴ The other heirs are entitled to an indemnity corresponding to their share. Article 813-1 of the French civil code in its Legifrance translation⁵ provides that:

The judge may name any qualified person, physical or juridical, as a succession mandatary, for the purpose of administering the succession provisionally because of the inaction, of the deficiency, or of the fault of one or more heirs in this administration, because of their disagreement, because of conflicting interests among them, or because of the complexity of the situation of the succession.

The demand is made by an heir, a creditor, any person who assured, for the account of the deceased, the administration of all or part of his patrimony while he was alive, any other interested person, or by the State Prosecutor’s office.

The association of co-owners of an immovable known as syndicat de copropriété requested the appointment of a mandatary since rights to this immovable were part of a succession. The heir who received the whole estate according to article 924 of the French civil code has not taken care of formalities related to the legal title to the property and has not paid the condominium-like fees either⁶ The simple case has given the Cour de cassation the opportunity to state that the link between forced heirship and indivision* was not as tight as one might have thought before reading this case.

Let us loosen this link.

1.2 A looser link

The forced heir who received the estate and another forced heir have argued that this claim was unfounded because there was no succession to administrate! Audacious as it seems, the argument makes sense if one interprets Article 813-1 of the French civil code as designed to avoid troubles due to quarrels between heirs who share undivided rights. Following this interpretation, this provision does not apply to cases without indivision. The Cour de cassation had to decide whether Article 813-1 could be applied in cases of succession without indivision. It has approved the reasoning of the Court of Appeal and has stated that the said Article could be applied in any succession matter. This decision is sensible. You are however not connected to this blog to read how to apply common sense; you already do it. Theory matters to me as much as it matters to you. Indivision is not only a stage in a succession process; it is a legal situation that changes the regime of the estate. This changes of legal regime has an effect on powers to act, just as a change of political regime changes the balance of powers that has been elaborated by those who drafted a constitution. This brutal power shift may have severe effects due to appearance theory that preserves creditors' rights.⁷ When indivision takes place in a succession, heirs do not necessarily know what it changes, and conflicts between heirs can lead to a dead end. Hence, Article 813-1 of the French civil code can be useful. One should bear in mind that indivision is not only a matter of legal title but also of powers.

It appears that the link between forced heirship is tight when it comes to legal title and looser when it comes to powers. Let us now see that, even in French law, one should distinguish between title and management.

2 Title and management

Title and management are two different issues (2.1) that have to be combined to shape an estate (2.2).

2.1 Two different issues

This case seems exceptional to those who do not wish to distinguish between rights and management. Furthermore, French law itself is not as comfortable as Equity with this distinction. If one sees Article 813-1 of the French civil code as a tool to solve issues caused by the plurality of heirs who hold a legal title, one focuses on the title. This tool should thus not be available to heirs who only can claim an indemnity since the legal title is not at stake. The Cour de cassation has made clear in this case that this provision applied although this succession did not involve indivision and that it could be relied on this Article to solve management issues. The distinction between title and management is not new and occurs also in matrimonial matters.⁸ Matrimonial regimes are however based on a distinction between title and management powers that do not completely overlap the rules of indivision that may become applicable during divorce.⁹ My education in English trusts makes it convenient for me to follow the distinction between title and management. The reasoning followed by the French Cour de cassation is less obvious to a practitioner who has only been educated in a jurisdiction of civil law. This point makes the case interesting and, I am not sure that a practitioner who has been educated only in a jurisdiction of common law would pay enough attention to this cultural difference.

Let us now see that beyond the distinction between title and management, there is only one estate.

2.2 One estate

An estate is not a plurality of goods that has to be transferred to someone else. When one furnishes one's home, one does not accumulate goods; one wants one's home to look like something. Material wellness and comfort are appealing and often make people buy things that they do not really need. These things are not strictly necessary; people do not think about them when they think about their estate. When they consider their estate, they always think about something that allows them to feel at home and sometimes to work. This is what they wish to give. Maintaining an estate requires a dynamic approach that pays attention to values.¹⁰ This dynamic approach requires to combine title and management.

It has been seen that title and management were two different issues that had to be combined to foster values and make an estate unique.

In brief, forced heirship, as any core concept, is more equivocal in reality than it is in textbooks.

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