By Evangelia Petsa,
According to article 1839 of the Civil Code: «The testator may for certain reasons, stated in the law, deprive the legal beneficiary of the legal fate (disinheritance). Disinheritance is done by disposition of the last will».
By the term disinheritance is meant both the deprivation of the beneficiary of his reserved portion by provision of the last will (disinheritance in the narrow sense), as well as the exclusion by will of a relative, who is included among the intestate heirs or a spouse from the intestate succession (disinheritance in broad sense). While disinheritance in the broad sense is not necessarily punitive, especially when disinheritance achieves a fairer distribution among several heirs, disinheritance in the narrow sense is always punitive.
Articles 1839 et seq. of the Civil Code strictly regulate disinheritance in the strict sense, namely the exclusion of a legal beneficiary from forced succession. The provisions of articles 1825 et seq. of the Civil Code aim to protect the institution of the family through legal fate. However, when the family ties are broken due to a serious offense by one of its members, especially an offense referred to in articles 1840-1842 of the Civil Code, then the testator can validly deprive the relative who committed the offense in question of his reserved portion.
The testator, therefore, validly excludes the legal beneficiary from the reserved portion, when the following conditions are met:
- a) The testator must have drawn up a valid will. The provision of the last will, which provides for the disinheritance, may also constitute the exclusive content of the will.
- b) The testator should invoke in his will one of the limiting reasons for disqualification mentioned in the provisions of articles 1840-1842 of the Civil Code. It is not necessary for the testator to have used the terms of the law (e.g. endangering life or causing bodily harm with intent), it is sufficient for the wording he used to show those facts, which constitute one of the reasons for disqualifying according to articles 1840 et seq. of the Civil Code. Proportional application of the reasons for disqualification in cases that do not directly fall within the letter of the relevant provisions, such as disqualification of the father from his child, because the father “leads a dishonorable or immoral life”, or because he caused physical injuries to his child, is excluded.
- c) The reason for disqualification, invoked by the testator, should actually occur, e.g. if the reason for disqualification concerns the testator’s children, the testator’s children have to had actually intentionally caused bodily harm to the testator himself or to his spouse, from whom the testator is descended.
- d) The reason for disqualification should have occurred at the time the will was drawn up. It is not required that it continue to exist even after the time of drawing up the will and until the death of the testator, with the exception of the cases of the provisions of articles 1840 c. 5 of the Civil Code and 1842 of the Civil Code.
- e) That the right of elimination has not been amortized on concrete grounds of a more or less blameless nature.
The dispossessed legal beneficiary is deprived of his reserved portion and is deemed not to have existed at the time of the testator’s death. His descendants take his place in the order of intestate succession. However, as long as the testator did not specify otherwise or something different does not emerge from the interpretation of the will, the descendants will take the place of the dispossessed ascendant, not according to the percentage of the latter’s reserved portion, but according to the percentage in which the ascendant would have accrued as ex intestate heir.
The burden of proving that there was a reason for disqualification is borne by whoever invokes the disqualification, that is, the heir who is called in the place of the disqualified person. If the validity of the disclaimer is disputed, a declaratory action can be brought, which will seek to recognize the validity of the provision of the will, by which the disclaimer was made. If the court recognizes the nullity of the provision, then the disinherited is considered to have acquired his inheritance at the time of the testator’s death. However, even if the conditions for elimination in the narrow sense are not met, it is accepted that the legal beneficiary will only receive the percentage of his reserved portion, because the elimination will apply in its broadest sense, i.e. as a limitation of the legal beneficiary to the reserved portion. In this case the will remains valid and as long as it is not annulled for another reason, its provisions are not valid only to the extent that they affect the reserved portion of the legal beneficiary.
Furthermore, according to article 1840 of the Civil Code: «The testator can withdraw the descendant if he: 1. contemplated the life of the testator, his spouse or other testator΄s descendant, 2. intentionally caused bodily harm to the testator or to his husband, from whom the descendant is descended, 3. became guilty felony or serious misdemeanor with intent, against the testator or his husband, 4. he maliciously breached the obligation he had from the law to support the testator, 5. lives a dishonorable or immoral life, despite the will of the testator. The disclaimer for this reason is invalid, if the beneficiary at the time of the testator’s death had definitively abandoned the dishonorable or immoral life».
All the reasons for disinheritance standardize forms of behavior of the dispossessed which have as their common element a certain mental attitude towards the testator and his family circle. This mental disposition is essentially identified with the concept of fraud and therefore a legal beneficiary, who only showed even gross negligence, cannot be disenfranchised. The second and third disqualification grounds are also criminal offences. However, for the valid liquidation by the testator, the criminal conviction of the beneficiary is not required. The disinheritance is also valid in case of statute of limitations for the offense or elimination of the punishable act.
Finally, articles 1841 and 1842 of the Civil Code provide for the following: «The testator can disinherit his parent if one of the disqualification reasons mentioned in the previous article no. 1, 3 and 4 is present» and «The testator can disinherit his spouse, if according to time of death he had the right to file a valid divorce action due to the fault of his husband».
References
- Αστικός Κώδικας, ministryofjustice.gr. Available here
