When the succession opposes father and son

IIt is possible to pass on his patrimony to two people, successively: if a “gradual bequest” is made, these two beneficiaries are guaranteed to receive the same thing, because the first has the obligation to keep them until his death. property of which he becomes the owner, in order to transmit them to the second.

If a “residual legacy” is made, the second legatee may receive nothing at all, because the first has the obligation to transmit only “What remains” property he has inherited. It is therefore better, for the notary who reads the will, not to confuse a gradual bequest and a residual bequest, as the following case shows.

In 2006, Danielle X wrote, on the back of a painting, this sentence: “I want this painting and everything I own [deux maisons] go live bequeath [sic] to my beloved husband, Marcel (…), the day I died. When he dies, everything will come back to my son, Olivier… ”

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When she died in 2010, Me Y, the notary in charge of the succession, considers that she has made a residual bequest: “The expression go live bequeathmilitates for a particular legacy of the buildings, to the father, without obligation of conservation for the benefit of the son ”, He explained, during the trials that followed, adding that the mother surely did not want to gratify a boy with whom she had been at odds for years.


Under the terms of the deed of partition established by Mr.e Y, the father obtains, in particular, the ownership of a house worth 120,000 euros. In 2013, when he needs cash, he sells it. Olivier, who does not touch anything on the transaction, then assigns it: he accuses him of having wronged him, together with the notary, by not drawing his attention to the difference that exists between the two types of bequests. He maintains that his mother had made a gradual bequest, and seeks compensation from the notary.

The Colmar Court of Appeal ruled in his favor, June 21, 2019: the phrase “At the death of this one, everything will come back to my son, Olivier” manifesto “The intention of the testator to transfer to her son all the property bequeathed”, and its “literal meaning does not suffer from any other interpretation”. The court ruled that the notary had made an error of interpretation, having caused the son a “Loss of chance to inherit the house”. She assesses this loss of chance at 85%, and condemns Me Y to pay 102,000 euros.

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