Eviction: how to defend against it?

What’s an outcast?

Disinheritance is a legal institution that allows the testator to explicitly exclude someone from the line of heirs in his will, even if he would have been legally entitled to inherit. Specifically, disinheritance refers to the obligatory share of a so-called non-nominal heir.

The children of the deceased and other descendants (grandchildren, great-grandchildren, etc.) are non-negligible heirs. The compulsory share is then the amount to which these non-nominal heirs are legally entitled. This share amounts to ¼ of the legal share for adult heirs and ¾ for minor heirs. The legal share of inheritance is determined according to the succession and is the amount that the non-minor heir would have received in the event of a succession by operation of law.

Who can be disinherited?

Only a non-nominee heir (children and their descendants) can be disinherited, and only for the reasons provided by law. There are 6 of them:

• The descendant failed to provide assistance in an emergency: this ground for disinheritance applies if the descendant refuses to help the testator in a situation where it is necessary for his/her health or life (for example, in illness or old age).
• The testator may disinherit the descendant if he/she does not show interest inthe testator, and this is long-standing and unilateral. It is assumed that the descendant has no contact with the testator and is not interested in his/her life or needs.

• The descendant has been convicted of a perverted crime: If the descendant has been finally convicted of a particularly serious or perverted crime, the testator may disinherit him or her. This applies particularly to crimes involving violence, moral turpitude and violence.
• The offspring leads a permanently uncontrolled life: The testator has the right to disinherit a descendant who has led a long term irresponsible, anti-social or otherwise disorderly life. This reason may include persistent substance abuse or failure to pay child support.
• The offspring is ineligible to inherit: Under the Civil Code, a descendant may be disqualified from inheriting if he or she is legally incapable of inheriting. Incapacity to inherit arises in situations where the descendant has, for example, committed an intentional crime against the testator or wrongfully interfered with the testator’s will.
• The descendant is indebted or wasteful: If the descendant leads a wasteful life, has debt problems or is reckless with money, the testator may decide to disinherit the descendant to ensure that the inherited property is not wasted or used to pay the descendant’s debts.

How do I find out about the disinheritance?

If your parents are still alive, finding out about the disinheritance can be a problem. In fact, disinheritance is determined by a declaration of disinheritance of the children, for which the same rules apply as for a will. Your parents could have handwritten this declaration and kept it somewhere safe at home, or had it drawn up as a public deed by a notary public. In the latter case, it is deposited with a notary and recorded in the central register of wills, which is not publicly accessible.

In both cases, you will not be able to get a declaration of disinheritance. The only way to find out about the disinheritance while your parents are still alive is to ask them.

If your parents die, you will learn about the disinheritance during the succession proceedings. The notary who is in charge of the succession proceedings is obliged to contact all the persons involved in the succession proceedings (including the disinherited). The specific reason for the disinheritance must be stated in the declaration of disinheritance. You have the right to know this reason and to defend yourself against it.

How do I defend myself against disinheritance?

If you disagree with the reason for your disinheritance, you have the option to defend yourself. Specifically, you must file a lawsuit in court challenging the eviction. The key is to challenge the truth of the reason given in the declaration of expulsion.

Indeed, an extradition is legally valid only if it meets the legal requirements and is proven. When bringing an action, it is therefore important to gather evidence that shows that the reason for the expulsion is invalid. For example, you may present testimony, medical reports, documents, photographs or other evidence.

Let’s explain this by looking at the individual reasons for disinheritance:

The offspring did not provide help in time of need

If the reason for disinheritance is that you did not provide emergency assistance, you can argue that you did in fact provide assistance or that you were not informed of the need for assistance. Evidence may include:

• Medical reports or testimony that you provided medical care to your parents.
• Evidence of financial assistance you provided.
• Witnesses who confirm that you took care of your parents.

The descendant shows no interest in the testator

This reason can be challenged if you can prove that you were interested in your parents and maintained contact with them, or that you were interested but your parents were not. Defences may include:

• Witnesses (family members, friends, neighbours) who can confirm that you were interested in your parents or that your parents were not interested.
• Records of phone calls, emails, visits or other forms of communication.

The offspring has been convicted of a perverted crime

If you have been convicted of a crime but the reason for the disinheritance is false or exaggerated, you may have a defense:

• By proving that the crime was not “depraved”: You can argue that your act does not fall into the category of serious depraved crimes that would justify an expulsion.
• Consideration of the circumstances: if the offence was less serious or committed in special circumstances, you can put this forward as a reason why extradition is inadequate.
• Certificate of Correction: You can show that you have made amends for your offence, for example by serving your sentence, subsequent exemplary behaviour, or that the offence no longer affects your position in the family.

The offspring is leading a permanently disorderly life

If your parents disinherited you on the grounds that you lead an unmanaged life (e.g. alcohol or drug addiction, problems with the law), you may be able to defend yourself:

• Witness statements from friends, family, employers, or professionals (doctors, therapists) confirming that your lifestyle is okay.
• Documentation of your behaviour (e.g. work contracts, bills, photographs, etc.) that proves you are not leading an unmanaged life.

The offspring is indebted or prodigal

This reason allows the testator to reduce the heir’s mandatory share to protect his or her estate from loss (due to debt or prodigality). If you disagree with this reason, you can defend yourself:

• Evidence that you are not in debt: you can provide evidence (e.g. bank statements, receipts) to prove your financial stability.
• Evidence of responsible money management: If you have been labelled as a spendthrift, you can show that you have a responsible approach to finances (e.g. stable employment, financial planning).

Summary

Parents may proceed to disinheritance if their offspring has failed to provide them with help in their time of need, has not shown an interest in them, has been convicted of a perverted crime, is leading an unmanaged life, is ineligible to inherit, or is in debt or spendthrift. You will usually only find out about the disinheritance in the context of the succession proceedings, where the notary is obliged to inform all parties, including the disinherited persons.

If you disagree with the reason for the disinheritance, you can defend yourself by filing a lawsuit in court. In this case, you must provide evidence that disputes the truth of the reason for disinheritance. This may include testimony, medical reports, proof of financial support, or other evidence that supports your claim to inheritance.