Structuring without dividing

Mon 23 March 2026, Philippe Ropenga Estate management Forced heirship Will drafting

Some French case transcripts are really worth reading since they enable the practitioner to get a grip on French legal theory that may look too peculiar or too complex to bother a trust lawyer. I believe that a smart practitioner wants to grasp the theoretical background that underpins a matter to make the most of it. This is why I have spent some time in 2021 explaining you how a well-informed client understood his will.¹ You also know that I think that most issues in French succession law are a matter of dynamics that involves powers for instance.² This time, I am happy to just sit back and enjoy reading a very well written appeal case from Besançon.³ It explains that some wills follow Articles 1079 and following of the French Civil Code to divide an estate into shares that may be unequal and may be reduced if they encroach upon a share that is protected by forced heirship. It distinguishes these wills from the one that is at stake.

The testator has mentioned different bundles of items as parts of his estate, his intention to give these bundles to specific people, and has made clear that the share of his estate that was not protected by forced heirship, ie, the quotité disponible would go to other people. This will, known as an ordinary will, specifies what items are part of the estate, who may receive them, and indicates that the testator wanted his will to take effect, here by expressing the intention to give these items. By referring to the quotité disponible and other shares, the testator has made clear that he has seen the estate as a whole and that it had to be assessed before its winding up. The whole estate has to be virtually recollected to be assessed and then divided following Article 843 of the French Civil Code; the testator has not divided his estate prior to his death.

In brief, the consistency of the testator's intention matters more than the wording of a will.

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