Testator's Collusion: Cancellation of Title and Re-registration Action

Testator's collusion concerns a divergence between the apparent transaction (usually a sale) and the hidden transaction (usually a gift). Land-registry transfers shown as sales but for which no price was paid, or for which a price well below market value was paid, are typical examples of collusive transactions that infringe the rights of the heirs.

The typical case is a gift concealed as a registered sale to defeat heirs. Another apparent transaction, such as a lifetime-care agreement, may also conceal a gift. The apparent transaction, true intention, purpose and formal requirements must be examined together; a low price alone does not establish simulation.

Collusion may be proved by any type of evidence. According to the settled case-law of the 1st Civil Chamber of the Court of Cassation, the following factors are decisive: whether the testator had any need to sell at the time, whether the buyer had the financial means to pay the stated price, whether that price was below comparable market values, the degree of closeness between the parties, and the actual use of the property after the sale.

Payment records, the buyer's means and the testator's true purpose are weighed with all other evidence. Missing written proof of payment does not alone prove simulation. The heir alleging it must establish the claim through the full circumstances, including the parties' relationship.

If the action succeeds, the apparent sale is held void on grounds of collusion and the hidden gift is held void for non-compliance with form (TMK art.706). The land-registry entry is cancelled and the property is restored to the estate; the heirs then become entitled to re-registration in accordance with their statutory shares.

Because the testator's-collusion action is in the nature of a claim against the estate, it is not subject to any limitation period. The heirs may bring the action at any time after the testator's death. The court of subject-matter jurisdiction is the Civil Court of First Instance, and the court of territorial jurisdiction is the court of the place where the immovable property is located (HMK art.12).

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.