SETTLING ESTATES: WHEN A NIECE IS FORGOTTEN BY HER UNCLES

Omission of an heir from the succession

Statement of facts:

Mr Seghir B. and Mrs Paulette N. had three children:

- Mrs Brigitte N.

- Mr Djeloul B.

- Mr Kamel B.

Mrs Brigitte N. died on 26 July 1993. She was succeeded by her daughter Sarah L., born on 2 June 1992.

Mr Seghir B. died on 14 June 1999 and Mrs Paulette N. on 27 March 2007.

Procedure (Omission of an heir from the succession) :

Thus, by bailiff's writ dated 24 August 2015, Ms Sarah L. :

-. summoned Mr Djeloul B. and Mr Kamel B. before the Tribunal de Grande Instance de Nice,

-to have it recognised that they have committed inheritance fraud,

-by intentionally concealing its existence during the succession of Mr Seghir B.. The property consists mainly of a flat at [...].

Nevertheless, by reversing the judgment under appeal :

-. the granddaughter, inheriting from her grandparents by representation of her predeceased mother,

-. dismisses its claim relating to the existence of a concealment of inheritance against his two uncles. 

If an heir deliberately conceals the existence of another heir in order to distort the division, this constitutes concealment.

It has not been established that the uncles deliberately omitted to reveal the existence of their niece in order to increase their hereditary share.

The deeds in which no mention is made of the existence of the co-heiress were drawn up before it was established that the uncles were aware of their niece's existence.

Consequently, it cannot be argued that, having learnt of the existence of the fraud, they did not repent; whereas repentance can only be justified if the handling of stolen goods is proven.

It is true that :

the niece is an undivided co-owner of the estate up to one third

-and that it consists mainly of a building so that its undivided rights on the building are of a third party.

However, there is no need to publicise the judgment if it does not transfer of property rights.

Solution chosen (Omission of an heir from the succession) :

Moreover, at the end of the partition, the rights of the parties may be modified by the effect, in particular, of an application for preferential allotment or by the existence of a claim relating to theprivate occupation by an heir.

To no avail, the niece made a direct claim against her co-heirs; she sought compensation for occupying the estate.

Only thejoint inheritance is therefore the creditor of this indemnity.

Lastly, as part of the liquidation and division operations to be carried out, it will be necessary to determine whether the private occupation is effective and to establish the joint ownership's claim on the occupant, a claim that will increase the "net value" of the property.estate assets.

Aix-en-Provence Court of Appeal, 2nd and 4th Combined Chambers, 13 January 2021, RG no. 17/21921