In the field of inheritance law litigation, two important notions are often mentioned: “estate concealment” and “inheritance capture” . Although closely related, these two concepts have key legal differences and describe very different situations. PROCAP DETECTIVE aims in this article to present its characteristics and differences, as well as the role that a private detective can play in the context of issues related to inheritance concealment and the capture of inheritance.
Estate concealment: a break in the principle of equality before inheritance...
Estate concealment refers to a situation where an heir, using fraudulent tactics, conceals, withholds, misappropriates or squanders property forming part of the estate of a deceased person, with the aim of unduly appropriating this property and depriving it of it. the other legitimate heirs. The concealment of inheritance constitutes a real break with the principle enshrined in the law of equality before inheritance. Estate concealment only exists with regard to compulsory heirs, testamentary legatees or creditors of the deceased. Only persons entitled to claim the status of heir or creditors of the deceased can therefore seek the implementation of the sanction of concealment; donees and individual legatees are excluded.
Examples of inheritance concealments:
- Removal, concealment, of movable property, their sale or appropriation without the knowledge of other heirs;
- Drawing up a false will;
- Use of a power of attorney made by the deceased with a view to diverting funds from the estate to the detriment of other heirs;
- Concealment by an heir of a debt or loan made by the deceased for his benefit, to be included in the inheritance liability;
- Concealment of a reportable or reducible donation;
- Concealment of another heir
Sanctions incurred in the context of inheritance concealment
The civil code heavily sanctions the heir who is guilty of concealment of inheritance. Thus, Article 778 of the Civil Code provides: “Without prejudice to damages, the heir who has concealed property or rights of an inheritance or concealed the existence of a co-heir is deemed to accept the inheritance purely and simply. , notwithstanding any waiver or acceptance up to the net assets, without being able to claim any share in the property or rights misappropriated or concealed. The rights accruing to the concealed heir and which have or could have increased those of the author of the concealment are deemed to have been concealed by the latter.
When the concealment concerned a returnable or reducible donation, the heir must report or reduce this donation without being able to claim any share in it.
The receiving heir is required to return all the fruits and income produced by the concealed property which he has enjoyed since the opening of the succession. »
Thus, the concealing heir incurs:
- Total loss of the ability to accept the inheritance under the benefit of inventory or to renounce it: it is considered as accepting the inheritance pure and simple, including the liabilities or if it is in deficit;
- Deprivation of his share of all concealed property which will be entirely redistributed or allocated to his co-heirs;
- Restitution of the concealed property, including their products or the income derived from the enjoyment he had of them;
- Payment of damages
The capture of inheritance: a pure spoliation
Inheritance capture describes another situation, in which the inheritance is purely robbed and diverted by a third party to the detriment of the legitimate heirs. As with estate concealment, inheritance capture is obtained through fraudulent maneuvers in order to appropriate part or all of the assets intended to make up the estate.
Important clarification : unlike concealment of inheritance, which appears expressly in the Civil Code (notably art. 778), the capture of inheritance is not a notion appearing specifically or defined as such in the legal corpus, it is a concept drawing its source from different qualifications or legal foundations, such as abuse of weakness (art. 223-15-6 of the Penal Code), fraud (art.313-1 of the Penal Code), abuse of trust (art. 314-1 of the Penal Code) and may be punished for these offenses. The capture of inheritance can occur in different ways, such as psychological manipulation and subjection, intimidation or coercion exercised on the testator in order to influence him in his inheritance decisions (fraud, fraud or testamentary manipulation, disguised donation, designation of a universal heir, modification of a will, misappropriation of cash or movable property).
The inheritance generally comes from a person the abused trusts, such as a friend, a neighbor, a relative, a caregiver, a representative, etc.
Examples of situations characterizing inheritance capture:
- Misuse of bank accounts through untimely withdrawals; abusive and unjustified issuance of checks; power of attorney for the benefit of the applicant, etc.
- Living donation
- Testament made under duress or mental influence
- Universal legacies
- Subscription to life insurance for the benefit of a third party
- Fraudulent marriage
- False will
Legal action against “spoliation of inheritance”
Two types of action can be brought to cancel the effects of inheritance capture:
- A civil action for the nullity of testamentary provisions for defects in consent (deceit, deception, incapacity or insanity of mind of the grantor)
- Criminal action : depending on the case, filing of a complaint and prosecution for abuse of weakness, fraud, breach of trust.
Civil and criminal action are not exclusive, but can be combined.
How can the use of a private detective be very useful in the context of estate concealment or inheritance spoliation?
Whether in the context of estate concealment or inheritance spoliation, recourse to the expertise of a private detective can be very useful and constitute real added value in the success of a procedure, whether civil or criminal.
In matters of concealment of inheritance or spoliation of inheritance, the burden of proof falls on the plaintiff who invokes it. The concealment of inheritance and the capture of inheritance cannot be presumed, but must be demonstrated. To be constituted, two essential elements must be brought together: the intentional element and the material element.
- Proof of the intentional element requires demonstrating that the perpetrator of the concealment or spoliation act was aware of his actions, and that he acted with full knowledge of the facts or voluntarily. The intentional element is often the most difficult component to constitute, as inheritance disputes are complex, involving often conflicting human and family interactions. The intentional element can, however, be easily established concerning certain professions which, by their nature, are exposed to the risks of capture: for example, members of medical professions, doctors, pharmacists or care assistants, guardians of minors, legal representatives to protection of adults, cannot receive donations or legacies from an elderly person (art. 907 to 909 of the Civil Code). To prevent the risks of abuse linked to inheritance, the legislator has provided for an “irrebuttable presumption” concerning these professions. In other words, the intentional element of misappropriation of inheritance carried out by a doctor or a guardian of a minor or any professional referred to in articles 907 to 909 of the Civil Code, is no longer to be constituted, but it is presumed due to the presumption irrefragable which weighs on these professions. In relation to third parties, or other co-heirs, the intentional element must be reported, and not just assumed.
- Proof of the material element : the material element of concealment or misappropriation requires the production of sufficient and solidly supported evidence. It should be emphasized that the courts are strict on this point, in application of the principle of the materiality of the evidence. Facts of concealment or misappropriation cannot be presumed or based on fragile, isolated, unfounded evidence, but rather on material evidence sufficiently supported to characterize the incriminated facts. Thus, to demonstrate inheritance concealment through the concealment of movable property, it is necessary to provide proof of the effective possession and enjoyment of said movable property by the author of the concealment. Likewise, to prove misappropriation of inheritance through bank withdrawals, it is necessary to produce bank statements which will show said withdrawals. Finally, if it is an abuse of weakness, the applicant must provide cumulative proof of the state of health of the deceased at the time of the commission of the facts, proof that the perpetrator knowingly knew about it, as well as proof of concrete maneuvers of manipulation or subjection.
In cases of estate concealment or inheritance capture, the use of a private detective can prove extremely useful. Private detectives are competent to carry out in-depth investigations, collect evidence, carry out research and verifications in order to gather all the information necessary to prove the existence of concealment or theft.
Indeed, private detectives have specific skills and tools to carry out discreet investigations and obtain solid evidence. They can carry out investigations into financial transactions, examine wills and related documents, interview witnesses and collect convincing testimony, carry out asset and lifestyle investigations, reveal situations of fraud or uncover villainous modus operandi. , collect evidence of abuse of weakness, fraud or breach of trust, carry out surveillance and discreet checks. Their expertise helps establish the truth and provide solid evidence before the courts, and will help injured heirs assert their rights and defend their interests.
A little-known area in which private detectives can prove to be even more useful: the search and location of movable property (concealed or not) belonging to the estate (vehicles, jewelry, works of art, furniture) or in front of it. be the subject of an inventory. Often, in disputes linked to concealment or misappropriation of inheritance, one of the difficulties lies in the impossibility for the legitimate heirs to locate the concealed or misappropriated property. These are most of the time hidden in secret places (garages, boxes, safes, with complicit third parties), transferred abroad, or quite simply resold. The use of a private detective then proves essential. The latter, through the investigations he carries out and in complete discretion, will be able to locate the concealed or stolen goods.
The independence of the detective, his mobility, his discretion and his expertise constitute real added value in disputes relating to inheritance rights.
Do you suspect a co-heir of concealment of inheritance? Do you believe that part of the estate assets has been stolen or fraudulently misappropriated? The PROCAP DETECTIVE agency is competent to help you in the creation of material proof of concealment or capture of inheritance.
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