A father dies in 2013 leaving two sons, one of whom is named universal legatee by will. The other, a forced heir, claims reduction of the legacy (réduction, the cutting back of gifts and legacies that exceed the disposable portion). The court appoints an expert to establish the calculation pool of article 922, at the value at the date of death, but refuses to ask him for the value of the bequeathed assets at the date closest to payment of the reduction indemnity. The Versailles court of appeal confirms: without joint ownership between the brothers, there is no partition, and the legatee has owned the assets since the death, the date at which the indemnity is due. The Cour de cassation (the French supreme court for civil matters), on 22 June 2022, in a reported decision, quashed: under article 924-2, the indemnity is computed “on the value of the assets given or bequeathed at the time of the partition or of their sale by the beneficiary”, and “in the absence of joint ownership […] and, consequently, in the absence of partition, the amount of the reduction indemnity is computed on the value of the assets given or bequeathed at the time of its liquidation or of their sale by the beneficiary”. For the valuer, two dates in the same file: the death to know whether the reserved portion is infringed, the liquidation to quantify what the legatee owes.
The facts
The deceased dies on 15 September 2013, leaving two sons and a holograph will of 8 April 2010 naming one of them universal legatee. Difficulties arise in the settlement of the estate, and the forced heir claims reduction of the legacy.
The court, on 21 February 2019, appoints an expert with the task of determining the composition and value of all the assets existing at death and adding to them the assets given away, under the conditions of article 922 of the Civil Code, but rejects the forced heir’s request that the expert also value the bequeathed assets at the date closest to payment of the reduction indemnity. The Versailles court of appeal, on 27 October 2020, confirms: in the absence of joint ownership, no partition can take place; the universal legatee has held the bequeathed property since the death, the date of separate enjoyment, and it is at that date that the indemnity is due and must be liquidated. The forced heir appealed.
The decision
The first civil chamber quashed, under article 924-2 of the Civil Code (Cass. 1re civ., 22 June 2022, no. 21-10.570, reported). “Under that provision, the amount of the reduction indemnity is computed on the value of the assets given or bequeathed at the time of the partition or of their sale by the beneficiary and according to their condition at the date the gift took effect. In the absence of joint ownership between the beneficiary of the gift and the forced heir and, consequently, in the absence of partition, the amount of the reduction indemnity is computed on the value of the assets given or bequeathed at the time of its liquidation or of their sale by the beneficiary.”
By retaining the date of death, the court of appeal breached the provision. Ruling on the merits in the interest of the proper administration of justice, the Cour de cassation includes in the expert’s assignment the determination of the value of the bequeathed assets at the date closest to payment of the indemnity.
What this changes for valuation
Two questions, two dates. The first question is whether the legacy exceeds the disposable portion: it is decided on the calculation pool of article 922, assets existing at death at their value at death, gifted assets notionally added back. The article on the asset sold after death deals with that first date. The second question is how much the legatee must give back: the reduction indemnity is computed on the value of the bequeathed assets at the date of partition or, if there is no partition because the universal legatee is not in joint ownership with the forced heir, at the date of liquidation of the indemnity, that is, the date closest to its payment. The report gives both values and states which question each answers.
The condition at the date of the legacy, the value of today. As for rapport, the value of the bequeathed assets is set “according to their condition at the date the gift took effect”, the death for a legacy. The legatee’s works since the death do not count, nor do deteriorations; market movements count in full. A building bequeathed in 2013 and valued in 2022 for the indemnity is therefore estimated in its 2013 condition at 2022 prices. The valuer reconstructs that condition from the documents of the time and says so in the report. The glossary describes the réduction des libéralités and its dates.
A sold asset is valued at the date of sale. If the legatee sold a bequeathed asset, its value at the time of the sale replaces the value at liquidation. The report therefore traces, for each bequeathed asset, whether it is still in the legatee’s estate; for those sold, it retains the value at the date of sale, the price obtained serving as a reference subject to the particular terms of the transfer, as recalled by the article on the property given on again valued at the second gift.
An indemnity that moves until payment. Since the value is set at the date closest to payment, the indemnity changes as long as the dispute lasts: in a rising market the legatee has an interest in paying quickly, the forced heir in waiting. The expert report, often filed a year or two before judgment, states the date of its value and the indices allowing it to be updated, so that the judge sets the indemnity at the date of ruling without a new expert report.
The expert’s assignment must provide for both valuations. The case turned on the wording of the assignment: the court had omitted the value at the date of payment. An expert who receives an assignment limited to the article 922 pool in a reduction file where the legatee keeps the assets flags to the judge, from the outset, that the second valuation will be necessary, and proposes to include it; that saves everyone time. The guide on the standard court mission for a partition gives the vocabulary of these assignments.
An earlier decision to the same effect. The rule had already been stated in a reported ruling of 1 December 2021 (Cass. 1re civ., no. 20-12.923): “in the absence of joint ownership between the beneficiary of the gift and the forced heir and, consequently, in the absence of partition, the amount of the reduction indemnity is computed on the value of the assets given or bequeathed at the time of its liquidation or of their sale by the beneficiary”. In that case the bequeathed building had been pre-empted: the reduction indemnity was computed on “the amount of the indemnity awarded by the expropriation judge”, that is, the value of the asset at the time of its sale; and the reduction indemnity “bears interest from the date on which its amount was fixed”, even without joint ownership. A price set by the expropriation judge therefore counts as the sale value for the calculation.
What the valuer takes from it
- Infringement of the reserved portion is checked on the article 922 pool, at the value at the date of death; the reduction indemnity is computed on the value of the bequeathed assets at partition or, without partition, at liquidation.
- Without joint ownership between the universal legatee and the forced heir, the valuation date of the indemnity is the date closest to its payment.
- Assets are valued in their condition at the date the gift took effect, at the prices of the date retained.
- An asset sold by the beneficiary is valued at the date of sale.
- The report gives both values, states its date and allows updating up to judgment.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Standard court mission: market value for a partition and the glossary entries réduction des libéralités, quotité disponible and réserve héréditaire complement this article. On the same theme: Reduction of gifts: an asset sold after death is valued at death and Inheritance in France: gifted land is valued as bare land. The decision is available on Légifrance.
What next
A universal legacy encroaching on the reserved portion, assets kept by the legatee, and a reduction indemnity to quantify?
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