When opening a succession, it happens that an heir finds that the share he is entitled (the “reserve”) was amputated from a certain amount, corresponding to a gift (one ” liberality “) that the deceased has made a third party. He only has five years to undertake an “reduction action” of this liberality, which must not exceed the “available quota” whose deceased could have.
This relatively short period, was imposed by the law of June 23, 2006 bringing the succession reform and the liberalities (Article 13) . It was previously thirty, what the beneficiaries considered excessively long. By reducing the time to act from the heirs, the legislator has heard strengthening the legal certainty of donations.
In principle, all the heirs of a succession are subject to the same limitation period: if the deceased is dead before the 1 January 2007, the date of entry into force of the law, Their discount action can be done within thirty years. If he died after, their action is subject to the five-year period.
An infringement of the “reserve”
Things get complicated when the notary has to settle two successions simultaneously, that of the father and that of the mother, dead respectively before and after the January 2007, as in the following case. In 1986, Mr. and Mrs X, Parents of Josette and Lionel, divorced by each taking a house, worth 300,000 francs [78 162.46 euros]. In 1987, Mr. X decided to help his daughter: he resells his house, for the sum of … 160,000 francs, nearly half of what it is worth. In 2005, Ms. X donated his to Lionel.
When parents disappear on March 22, 2006 and January 24, 2012, equity seems little or preferred. Nevertheless, Josette believes that the donation of 2005 undermines his reserve, especially as the ground of his brother, which became constructible, saw his value increase. On April 8, 2015, she asked that the Tribunal de Grande Instance of Nantes (Loire-Atlantique) ordered the judicial sharing of his mother’s succession. Its action is considered inadmissible, because it was not preceded by an amicable approach (as it imposes on Article 1360 of the Code of Civil Procedure).
On November 14, 2019, Josette undertakes an action in reducing the liberality of which his brother benefited. Lionel replies that it is out of time, since more than five years have elapsed between his assignment and the death of their mother, in 2012. However, under Article 921 of the Civil Code, “the limitation period of the discount action is set at five years from the opening of the succession … “
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