The echo of silence in successions

Fri 31 July 2020, Philippe Ropenga Forced heirship

Everything sounds in successions, especially silence. Silence is not always easy to interpret. When one reads a will, one sometimes wishes to find an expression that would support an interpretation rather than another. Words that have been used by the testator leave room for interpretation. A deed is not a bundle of meaningful words aggregated by silence. The sound of a deed is made of silence. Silence in successions is not emptiness. We have listened to the beat going on during the French quarantine.¹ We have noticed that the option of the heir was a crucial step in French law. An heir may try to set the pace and lead the whole family to conflict. What happens when an heir remains silent and does not opt?

Let us recall how the option of the heir works. According to Article 720 of the French civil code, a succession opens at death. The Legifrance² translation of Article 768 of the said code provides that:

An heir may accept the succession purely and simply or renounce it. He may also accept the succession to the extent of its net assets when he is called to the succession as either a universal successor or a successor under universal title.

An acceptance or renunciation subject to a condition or a term is null.

Before he exercises his option, an heir is…an heir. This may not be as obvious as it seems. Legifrance translation of Article 724 of the civil code reads as follows:

Heirs designated by legislation have seizin by operation of law of the assets, rights, and actions of the deceased.

Universal legatees and universal donees have seizin under the conditions provided for in Title II of this Book.

If none exists, the succession is acquired by the State, which must cause itself to be sent into possession.

Article 734 of the civil code states that children and their descendants are the first to succeed in the absence of a surviving spouse. This really is important to notice. Practitioners with a common law background may overemphasise the influence of forced heirship.³ A forced heir is an heir above all. Does the silence of an heir have an effect on seizin by operation of law? This sounds like a theoretical question, doesn't it? Seizin and devolution follow abstract rules in French law that restrict testamentary freedom⁴ on the one hand but neutralise the uneasiness caused by intestate successions on the other hand. Once you know how and when to opt, should you care about anything else regarding the option? One may think that the only thing that matters in this context is what the heir says. If an heir has not exercised his option before the expiration of a ten-year delay counting from the opening of the succession, his silence sounds like a renunciation.⁵ This is true if one takes only the original sound produced by an heir into account. A sound can however be reflected and some ears may perceive it differently. A silence may echo. What does the echo of the silence of a non-opting heir sounds like to creditors' ears? This is the question of physics that had to be answered by the French Cour de cassation, i.e., the supreme court that deals with civil, commercial, and criminal cases.

A woman has benefited from social support by local authorities. The département has paid her housing. She has left her two grand sons as heirs. One has renounced the succession; the other remained silent. The local council claimed that the non-opting heir should reimburse the housing expenses.⁶ Is a non-opting heir liable for debts made by the deceased? The Court of Appeal found that the council had not brought evidence of express or tacit acceptance, and thus, rejected the département's claim. The Cour de cassation has ruled that creditors of a silent heir could rely on seizin by operation of law to bring a claim against him, unless he renounced. The silence of a non-opting heir echoes to creditors' ears in a way that does not sound like acceptance but is strong enough to ground a claim.

In brief, it is good practice to consider opting as soon as possible to avoid unwanted reflections.

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