Movable or immovable?

Sat 01 May 2021, Philippe Ropenga Forced heirship

This blog post deals with a very recent French case that is so straightforward and simple that it could easily be unnoticed by lawyers who deal with French legal matters outside France. You know that under French law, a forced heir cannot be deprived of his share and that when a forced heir receives everything from the testator, others can claim an indemnity.¹ The French Cour de cassation, i.e., the supreme court that deals with civil, commercial, and criminal cases has decided another case regarding the nature of the indemnity claim in an international context.

A lady who was domiciled in Sweden died in 2013, before the EU Succession regulation 650/2012 took effect. She has left three forced heirs, her children. On 7 March 1961, she had decided to donate inter vivos an immovable that she owned in France.² Some gifts are examined after the death of the donor to determine whether they infringe forced heirship. If they do, forced heirs can claim an indemnity from the donee. This blog has followed the evolution of French international law regarding forced heirship from its start³ and you know that forced heirship can be circumvented in many cases.⁴ Nevertheless, one can read this small case as an interesting methodological reminder. Before knowing whether forced heirship can be avoided in a given matter, one has two solve two separate questions:

1. What court does have jurisdiction?
2. What is the applicable law?

The claimant argued that the lower court had decided that the immoveable was located in France and thus that the applicable law was French, and therefore that French courts had jurisdiction. The junction of jurisdiction and applicable law is unfortunate. The supreme court has decided not only to explain what the lower court did wrong but also to decide the matter. This is quite rare and requires to rely on the principle of proper administration of justice since the function of the Cour de cassation is not to decide matters but to decide whether the law has been well applied and ask a lower court to apply the law correctly to points that have been misjudged. The lower court then applies the law in the manner that has been found correct by the Cour de cassation to solve the matter. This is why I do not translate Cour de cassation; the cassation is very different to an appeal. When the Cour de cassation decides to solve a matter, one should definitely pay attention to the reasoning.

The court has started with the first question, that of jurisdiction. Since the EU succession regulation did not apply, it examined principles of French private international law regarding the jurisdiction of French courts in succession matters. There are used when no specific rule applies.

There are two of them:

1. French courts have jurisdiction over movables when the deceased was domiciled in France.
2. French courts have jurisdiction over immovables located in France.

It is worth noting that the legal nature of a thing matters and that it may have a major effect on the solution to a matter in succession cases.⁵ The next question the Cour de cassation had to answer was the following one : Is an indemnity based on the reduction of a gift as described by Article 924 of French civil code a movable or an immovable? The supreme judges state that the indemnity claim is a movable.

The court then solved the matter. French courts have jurisdiction over movables when the deceased was domiciled in France. In this case, the deceased was domiciled in Sweden, and therefore, French courts did not have jurisdiction and…that's it! The supreme court also noted that a French court that had declined jurisdiction could only invite to seize another court without indicating what court it might be.

In brief, an indemnity regarding the reduction of a gift is a movable.

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