5 February 2024
A forced heir needs information to calculate their statutory share. They are entitled to inspect and take copies of all documents they need to calculate their statutory share. What is the extent of this right?
If a child is disinherited by one or both of their parents in a will, they can still claim a ‘statutory share’. This is the minimum share of the inheritance to which a child is always entitled. The statutory share is half of the legal inheritance. The person who claims their statutory share is called a forced heir.
A child who has been disinherited is classed as a forced heir, rather than an heir. Unlike an heir, a forced heir is not entitled to request all necessary information and financial records from third parties. A forced heir is merely a creditor of the estate.
The law stipulates that a forced heir (who is not an heir) has a right vis-à-vis the executor or heirs to inspect and take copies of all documents necessary to calculate their statutory share. The heirs or executor must provide the forced heir with all information to that effect if requested.
There is frequent litigation regarding the extent of this duty to provide information. According to established case law, the phrase ‘all information to that effect’ should be interpreted as broadly as possible, but limited to the information needed to calculate the statutory share. The right of the forced heir to information may refer to information relating to the period before the death of the testator. This could include bank statements or income tax returns or assessments. In order to obtain this information, a forced heir must argue and demonstrate that they have a legitimate interest.
The above applies in particular to information to trace gifts. Gifts that have been made are important for calculating the statutory share. But as a forced heir, how do you know what gifts have been made if you do not have full access to the flow of wealth during the testator’s lifetime? It follows from case law that the forced heir must receive a statement of all gifts made by the testator. However, such a statement is not always sufficient. In some cases, the issue of whether all gifts have been reported arises. If there is any suspicion that the statement of gifts is incorrect or incomplete, this may give a forced heir a legitimate interest to request further information.
The obligation to provide a forced heir with information is not such that they are entitled to the same information as the heir. For example, a forced heir is not automatically entitled to see the flow of wealth for the years before the testator’s death, but rather must have a legitimate interest to do so. The extent of the information obligation and what documents must be submitted to a forced heir must be assessed on a case-by-case basis.
If you have any questions or would like advice, please do not hesitate to contact me directly.
