Inheritance Waiver Agreement: Requirements, Form and Effects

The inheritance waiver agreement is a form of succession contract and, under TMK art.545, must be made in the form of an official will — that is, before a notary, a judge of the Civil Court of Peace or a competent official, in the presence of two witnesses. Waiver agreements made by ordinary written instrument are absolutely void.

The parties to the agreement are the testator and the prospective heir. The testator must have testamentary capacity; the heir must be of age and have capacity to discern.

A waiver may be made for consideration (onerous) or without consideration (gratuitous). In an onerous waiver, the heir is given an immovable, a sum of money or some other value in exchange for waiving the inheritance. A gratuitous waiver is made without any consideration.

Under TMK m.528/3, a waiver for consideration extends to the waiving heir's descendants unless the agreement provides otherwise. A gratuitous waiver does not have that same automatic effect.

TMK art.530 provides that where, at the opening of the succession, the estate cannot satisfy its debts and the heirs do not pay them, the waiving heir and his or her descendants are liable to the creditors, in respect of the consideration received from the testator in the five years preceding death, up to the amount of their enrichment as at the opening of the succession.

TMK art.529 deals with lapse of the waiver: where the waiver was made in favour of a specific person and that person, for whatever reason, cannot inherit, the waiver lapses; where no specific beneficiary is designated, the waiver is treated as having been made in favour of the descendants of the nearest common ancestor, and if those persons cannot inherit, the waiver again lapses.

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.