I – Introduction

Our culture has long celebrated men and women who leave a good inheritance for their children, and sometimes grandchildren. This is not always the case, unfortunately, and in some cases, what is left behind by the grantorcan be described as a poisoned gift.It is a common misconception that debt dies with an individual. Contrary to popular belief, debts are instead passed onto the estate of deceased persons and become the responsibility of the administrators of such estates or the executors of the deceased’s will.

In situations where the deceased person had debts that were greater than the total value of their assets, their estate is insolvent. In such situations, the beneficiary might find cause to waive such an inheritance that comes with encumbrances.This means that the heir declines to receive any assets or assume any liabilities associated with an inheritance.

A waiver of inheritance, also known as repudiation, renunciation or disclaimer of inheritance, is a legal mechanism whereby an individual who is entitled to inherit property from an estate chooses not to accept it. This means they give up their right to receive the assets and any associated obligations or debtsthat come with the inheritance.

Cameroon has a bijural system consisting of English Common Law and French Continental Civil Law applicable in the English-speaking and French-speaking parts of the country, respectively. In this brief write-up, our legal analysis shall be limited to the French-speaking part of the country where French Continental Civil law holds sway.

II – Applicable rules

The subject matter is governed principally by the provisions of Sections 780 et seq. of the inherited French Civil Code and Sections 80 et seq. of the inherited French Civil and Commercial Procedure Code.

III – The crux of the matter

As a matter of course, the estate is transferred to the heirs at the moment probate proceedings are closed before a competent jurisdiction, and the beneficiary heir(s) is (are) liable not only for the estate’s assets (claims) but also for its liabilities (debts).

Be that as it may, no heir may be obliged to pay the inheritance costs (including the debts which the heir is liable for even though they did not exist during the lifetime of the deceased and do not arise from the will, e.g. funeral expenses, estate management costs, settlement/liquidation costs, sealing costs and inventory costs).

IV – The heir’sright of option

The golden rule in this respect is laid down in article 775 of the Civil Code which provides that no one is obliged to accept an inheritance which devolves upon him.

Renunciation of a succession may not be presumed. Also, creditors of one who renounces his inheritance to the detriment of their rights may be authorized by the court to accept the inheritance on behalf of their debtor, in his place and stead.

In that case, the renunciation is avoided only in favour of the creditors and to the extent only of their claims: it is not so in favour of the heir who renounced.

That said, under the French Civil Code, heirs have three (03) alternatives or options with regard to the estate: they can either accept, renounce, or step back from inheriting the estate; this is known in law as the heir’s right of option.

As aforementioned, the heir’s right of option is the right to accept, renounce or step back from inheriting the estate. This last alternative is called ‘‘acceptance subject to the inventory of the estate’’.We shall examine each of these options in turn.

4.1 The option of outright acceptance of the inheritance of the estate

This is governed by the provisions of Article 778 of the inherited French Civil Code. Persons who lack capacity, such as minors (<21 years old)and insane adults, or their guardians, may not accept the inheritanceoutrightly or renounce it, without authorization from the family council, and such acceptance may only take place under the benefit of the inventory of the estate (Art 461 of the Civil Code).

The acceptance of an inheritance may be made expressly or implied by conduct (tacit). It is express when the title or capacity of heir is assumed in a legal or private document. It is tacitly accepted when the heir acts in a manner which necessarily implies his intention to accept, and which he would be entitled to do only in his capacity as heir.

However, there are cases where the heir may be forced to accept the inheritance. This is the case where heirs who have received and misappropriated or concealed the property of the estate or who have omitted in bad faith to include certain property of the deceased in the inventory of the estate,as provided by articles 792 and 801 of the Civil Code. In such cases, the heiris deemed to have accepted the estate notwithstanding his renunciation of the estate. He may not claim any right to the goods convertedor concealed.

However, case law recognizes that the person responsible for receiving stolen goods has the right to repent, which exempts him from the penalties for receiving stolen goods if he spontaneously makes restitution or admits his fraud before any legal proceedings.

Also, an adult may attack an acceptance, express or by conduct, which he made of an inheritance, only in the case where that acceptance was the result of a deception committed upon him: he may never claim on the ground that he suffered loss, except only in the case where the inheritance is absorbed or reduced more than one-half through the discovery of a will unknown at the time of the acceptance.

Acts of mere preservation, supervision, and interim administration are not acts of implied acceptance of an inheritance unless the title or capacity of heir has been assumed therein.

As previously noted, acceptance may be express or by conduct: it is express where one assumes the title or capacity of heir in an authentic or private instrument; it is by conduct where the heir does an act which necessarily implies his intention of accepting the inheritance and which he would be entitled to do only in his capacity as heir.

The effects of acceptance are retroactive, and they go back to the day of the conclusion of the estate proceedings.

4.2 The option of the renunciation or waiver of the inheritance of the estate

In principle, all heirs have the right to renounceor waive their inheritance, unless they have previously accepted it, or if the time limit for waiver has expired, or if they have been convicted before the expiry of that time limit.The share of a renouncing heir accrues to his co-heirs; where he is alone, it devolves upon the next degree.

Under the terms of article 784 of the Civil Code, renunciation is a solemn act. It must be expressly made at the Registry of the competent Court of First Instance of the district in which the inheritance proceedings were instituted and entered in a register kept for this purpose.

Under the terms of article 789 of the Civil Code, the right to accept or repudiate an estate inheritance is prescribed by the period required for the longest statute of limitations for property rights. This limitation period is 30 years under the inherited French Civil Code.

As long as the right to accept the inheritance is not time-barred against the heirs who have renounced it, they may still accept the inheritance, if it has not already been accepted by other heirs; and this is without prejudice, however, to any rights that may be acquired by third parties over the property of the estate, either by prescription or by deeds validly done with the court-appointed administrator of the vacant estate.

4.3 The option of stepping back from inheriting the estate, subject to the inventory of the estate

For the heir to step back from his inheritance, he must have neither accepted it nor renounced or waived it.To do this, 2 steps must be taken:

– The declaration at the Registrar’s Office of the competent Court of First Instance in the form set out in article 793 of the Civil Code;

– The estate inventory made before a competent notary public within three (03) months of the closure of estate proceedings before a competent court or notary public(article 794 of the Civil Code).

V – Legal implications of renunciation of inheritance

As already indicated earlier, article 785 of the Civil Code provides that an heir who renounces to his inheritance shall be deemed to have never been an heir.

Besides, there are two principal effects to renunciation, namely:

– There is a separation or legal distinction of properties between that of the estate and that of the heir.

– No ultra vires obligation. The ultra vires obligation means that the creditor of the estate who finds the assets of the estate insufficient to repay the debts of the estatehas the legal right topursue the personal property of the heir. In the absence of this obligation, the personal property of the heir will not be confused with that of the estate. This is expressly provided for by the provisions of article 802 (1) of the Civil Code.

VI – Our probate and estate services

At Dayspring Law Firm, we have a team of dedicated probate barristers and solicitors who are ready to help you resolve your queries relating to this area of the law as quickly and effectively as possible.

 

If a loved one has passed away or if you require assistance in dealing with the debts of an estate, obtaining a grant of probate or letters of administration, or simply want advice on dealing with the probate process, our wills, trusts, and probate barristers and solicitors have a wealth of knowledge and experience to assist you. They can help you through what can be a difficult time, dealing with estate and trust property and complex estates.

You can contact us by email at dayspringlaw@dayspringlaw.com.