Disinheritance: Grounds and Procedure

The alternative grounds for punitive disinheritance under TMK m.510 are a serious offence against the testator or someone close to the testator, or a substantial breach of family-law duties towards the testator or family members. Both grounds need not occur together; the first is not limited to legally defined family members.

These grounds are exhaustive; disinheritance may not be based on any other ground. Disinheritance is effected by a testamentary disposition (a will or a succession contract) and the ground must be expressly stated (TMK art.512).

Under TMK art.513, where one of the testator's descendants has been declared insolvent, the testator may disinherit that descendant in respect of one-half of the reserved share. That half must be allocated to the existing and future children of the disinherited descendant.

Protective disinheritance requires the certificate of inability to pay debts specified in TMK m.513, not merely general evidence of indebtedness. If it has ceased to have effect when succession opens, or the covered debt does not exceed half the heir's inheritance share, disinheritance is annulled on that heir's request.

If the disinherited person objects, the benefiting heir or legatee must prove the ground (TMK m.512/2). An omitted or unproved ground normally preserves the reserved share, subject to the separate rule in m.512/3 for the testator's manifest mistake concerning that ground.

Where the ground is not proved or is not stated in the disposition, the disinheritance fails and the disinherited heir takes his or her reserved share; the disposition remains valid as to the portion exceeding the reserved share.

In inheritance disputes, the first step is to clarify the status of the heirs, the scope of the estate and any dispositions on death. Civil-registry records, certificates of inheritance, land-registry records, bank correspondence, the records of the opening of a will and any transfers made by the deceased during their lifetime should be reviewed together.

The time limits and types of action for matters such as reduction, testator collusion, renunciation of inheritance, annulment of a will and inheritance waiver differ from one another. Correctly identifying the date of knowledge, the opening of the estate, the opening of the will and the date of any renunciation declaration prevents the loss of rights.

Because intra-family transactions are often conducted without written documents, bank receipts, the values reflected in the deed, the testator's economic needs, witness accounts and patterns of actual use are particularly important. The earlier the evidence is prepared, the more soundly the legal framework of the dispute can be established.