Freedom to take back

Wed 19 May 2021, Philippe Ropenga Will drafting

This blog pays a great attention to global trends in trust and estate law. It has been written here four years ago that Ilott v The Blue Cross¹ could be part of a trend involving courts that would require the testator to use testamentary freedom reasonably.² You know from the beginning of this blog that forced heirship has lost its strength in French international law³ but that it still is a fundamental concept because its swings alongside with testamentary freedom and gives succession law its dynamics.⁴Ilott v The Blue Cross dealt with the right not to give whereas the Cour de cassation, ie the French supreme court that deals with civil, commercial, and criminal matters, has decided a case regarding the right to take a gift back by testament.⁵ A testament contains clauses that state that if an heir challenges the will or a gift for any reason he loose his the gift and his share of the estate that is not protected by forced heirship. An heir challenged the validity of a gift made by the testator to another heir as well as the validity of the will during the liquidation of the estate. The Court of appeal imposed a penalty of €50,000 for violation of the clauses. It stated, as a matter of principle, that these clauses should not violate public policy, that they are disproportionate when they infringe forced heirship, that the court can modulate the penalty, and that it should be proportionate to the heir's fault. The Court of Appeal then ruled that the portion of the estate that was not protected by forced heirship or quotité disponible amounted to €857,175.93 and noted that the claimant could not prove that he suffered any other loss than advocate fees and dismissed the Appeal. The heir than brought a claim to the Cour de cassation arguing that the clauses violated her right to a fair trial as protected by Article 6§1 of the European Convention on Human Rights and that the appeal judges had not addressed the issue correctly. One may think that such a case is of no interest to Anglo-Saxon lawyer since forced heirship is not a big practical issue anymore in international law and because one may not deal with this Convention at all. This would be a narrow interpretation of the case. You know that narrow interpretations can leave technical pitfalls unnoticed and you care about legal practice in jurisdictions of civil law. You are right. Let us look at the case from a different perspective.

The legal question that the highest court had to answer can be formulated like this: in order to establish that the heir's right to a fair trial has not been excessively restricted by such clauses, is it enough to show that the penalty is lower than the quotité disponible and that the loss caused by the clause is moderate? The supreme court has answered negatively to this question and has partially quashed the case. You care about practical issues, and therefore, you care about the reasoning. You already know that the Cour de cassation does not examine pieces of evidence but that it does examine facts to decide whether the law has been correctly applied to them. The Court examines the legal base or base légale of the litigious decision.⁶ This appeal case has been quashed on this ground. The Court of Appeal has payed attention to different criteria that allow to impose a penalty based on a testamentary clause but has not shown that facts could not support the heir's view of these clauses as an unreasonable restriction of the fundamental right to a fair trial. Fair trial is a widespread concept and the Cour de cassation, unlike its British functional equivalent, does not reexamine evidence. Nevertheless, both supreme courts are keen on verifying that testamentary freedom is used reasonably. As one can see, even successions without extraneous elements are influenced by global trends.

In brief, this case confirms the global trend regarding courts that are keen on checking that testamentary freedom has been reasonably used.

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