Partition of succession
PARTITION OF SUCCESSIONS
RIGHT TO PARTITION
836. Partition may not take place or be applied for before the liquidation is terminated.
837. The testator, for a serious and legitimate reason, may order partition wholly or partly deferred for a limited time. He may also order it deferred if, to carry out his intentions fully, it is necessary that the powers and obligations of the liquidator continue to be held under another title.
838. If all the heirs agree, partition is made in accordance with the proposal appended to the final account of the liquidator or is made as they see best.
If the heirs disagree, partition may not take place except under the conditions set out in Chapter II and in the forms required by the Code of Civil Procedure (chapter C-25.01).
839. Notwithstanding an application for partition, indivision may be maintained in respect of a family enterprise that had been operated by the deceased, or of the shares or other securities connected with the enterprise where the deceased was the principal partner or shareholder.
840. Indivision may also be maintained in respect of the family residence or of movable property serving for the use of the household, even where a right of ownership, usufruct or use is granted to the surviving married or civil union spouse.
841. An heir who before the death actively participated in the operation of the enterprise or lived in the family residence may apply to the court for the maintenance of the indivision.
842. When deciding an application for the maintenance of indivision, the court takes into account the testamentary provisions, as well as the interests involved and the means of livelihood which the family and the heirs derive from the undivided property; in all cases, the agreements among the partners or shareholders to which the deceased was a party are respected.
843. On the application of an heir, the court may, to avoid a loss, stay the immediate partition of the whole or part of the property and maintain indivision in respect of it.
844. Maintenance of indivision takes place upon the conditions fixed by the court but may not be granted for a duration of more than five years except with the agreement of all the interested persons.
It may be renewed until the death of the married or civil union spouse or until the majority of the youngest child of the deceased.
845. The court may order partition where the causes that justified the maintenance of indivision have ceased or where indivision has become intolerable or presents great risks for the heirs.
846. If an application for the maintenance of indivision contemplates a particular item of property or a group of properties, nothing prevents proceeding with the partition of the residue of the property of the succession. Furthermore, the heirs may always satisfy an heir who objects to the maintenance of indivision by paying his share themselves or granting him, after evaluation, other property of the succession.
847. A person entitled only to enjoyment of a share of the undivided property may only participate in a provisional partition.
848. Every heir may exclude from the partition a person who is not an heir but to whom another heir transferred his right in the succession, by paying him the value of the right as at the time of the withdrawal and his disbursements for costs related to the transfer.
MODES OF PARTITION
COMPOSITION OF SHARES
849. Partition may include all or only part of the undivided property.
Partition of an immovable is deemed to have been carried out even if parts remain which are common and indivisible or which are intended to remain undivided.
850. If the undivided shares are equal, as many shares are composed as there are heirs or partitioning roots.
If the undivided shares are unequal, as many shares are composed as necessary to allow a drawing of lots.
851. In composing the shares, account shall be taken of the testamentary provisions, particularly those charging certain heirs with payment of debts or legacies, as well as the rights of action the heirs have against each other for the amounts they paid in excess of their shares; account shall also be taken of the rights of the surviving married or civil union spouse, the applications for allotment by preference, the objections and, where such is the case, the reserve funds for satisfying potential judgments.
Consideration may also be given to, among other things, the fiscal consequences of the allotments, the intention shown by certain heirs to assume certain debts or the convenience of the mode of allotment.
852. In composing the shares, immovables should not be parcelled and enterprises should not be divided up.
Insofar as the dividing up of immovables and enterprises can be avoided, each share shall, as far as possible, be composed of movable or immovable property and rights or claims of equivalent value.
Any inequality in the value of the shares is compensated by the payment of an equalizing sum.
853. Heirs in indivision who make an amicable partition compose the shares as they see fit and decide, by mutual agreement, on their allotment or on a drawing of lots for them.
If they consider it necessary to sell all or some of the property to be partitioned, they also set, by mutual agreement, the terms and conditions of sale.
854. If the heirs in indivision fail to agree as to the composition of the shares, the shares are composed by an expert designated by the court; if the failure to agree concerns the allotment of the shares, the allotment is made by a drawing of lots.
Before the drawing, each heir in indivision may contest the composition of the shares.
PREFERENTIAL ALLOTMENTS AND CONTESTATION
855. Each heir receives his share of the property of the succession in kind, and may apply for the allotment, by preference, of particular property or a share.
856. The surviving married or civil union spouse may, in preference to any other heir, require that the family residence or the rights conferring use of it, together with the movable property serving for the use of the household, be placed in his or her share.
If the value of the property exceeds the share due to the spouse, he or she keeps the property, subject to the payment of an equalizing sum.
857. Subject to the rights of the surviving married or civil union spouse, if several heirs apply for the allotment by preference of the immovable that served as the residence of the deceased, preference goes to the person who was residing there.
858. Notwithstanding any objection or application for an allotment by preference presented by another co-partitioner, the enterprise, or the shares or other securities connected with the enterprise, are allotted by preference to the heir who was actively participating in the operation of the enterprise at the time of the death.
859. If several heirs assert the same right of preference or if an application for an allotment is contested, the contestation is settled by a drawing of lots or, if it concerns the allotment of the residence, the enterprise or the securities connected with the enterprise, by the court. In this case, account is taken of, among other things, the interests involved, the reasons for the preference of each party or the degree of his participation in the enterprise or in the maintenance of the residence.
860. Where the contestation among the co-partitioners is over the determination or payment of an equalizing sum, the court determines it and may, if necessary, fix the appropriate terms and conditions of guarantee and payment in the circumstances.
861. The property is appraised according to its condition and value at the time of partition.
862. If certain property cannot be conveniently partitioned or allotted, the interested persons may decide to sell it.
863. If the interested persons cannot agree, the court may, where applicable, designate experts to evaluate the property, order the sale of the property that cannot conveniently be partitioned or allotted and fix the terms and conditions of sale; or it may order a stay of partition for the time it indicates.
864. In order that the partition not be made in fraud of their rights, the creditors of the succession and those of an heir may be present at the partition and intervene at their own expense.
DELIVERY OF TITLES
865. After partition, the titles common to all or part of the inheritance are delivered to the person chosen by the heirs to act as depositary, on the condition that he allow the co-partitioners to make use of them at their request. Failing agreement on the choice, it is made by a drawing of lots.
866. At partition, any heir who so requests may obtain, at common expense, a copy of the titles to property in which he retains rights.
RETURN OF GIFTS AND LEGACIES
867. With a view to partition, each coheir is bound to return to the mass only what he has received from the deceased by gift or by will under an express obligation to return it.
A successor who renounces the succession is under no obligation to make any return.
868. A person who represents another in the succession is bound to return what the person represented would have had to return, in addition to what he is bound to return in his own right.
A return is due even if the person who represents the other has renounced the succession of the person represented.
869. A return is made only to the succession of the donor or of the testator.
It is due only from one coheir to another and is not due to the legatees by particular title or to the creditors of the succession.
870. A return is made by taking less.
Any provision requiring the heir to make a return in kind is without effect. However, the heir may elect to make the return in kind if he still owns the property, unless he has charged it with a usufruct, servitude, hypothec or other real right.
871. Each coheir to whom a return by taking less is due pre-takes from the mass of the succession property equal in value to the amount of the return.
As far as possible, pre-takings are made in property of the same kind and quality as the property due to be returned.
If it is impossible to pre-take in the manner described, the heir returning may either pay the cash value of the property received or allow each coheir to pre-take other property of equivalent value from the mass.
872. A return by taking less may also be made by imputing the cash value of the property received to the share of the heir.
873. Unless otherwise provided in the gift or will, property returned by taking less is valued at the time of partition if it is still in the hands of the heir, or on the date of alienation if it was alienated before partition.
Bequeathed property, and that which remains in the succession, is valued according to its condition and value at the time of partition.
874. The value of property returned by taking less, or returned in kind, shall be reduced by the increase in value of the property resulting from the disbursements or personal initiative of the heir returning it.
It is also reduced by the amount of the necessary disbursements.
Conversely, the value is increased by the decrease in value resulting from the acts or omissions of the heir making the return.
875. The heir is entitled to retain the property due to be returned in kind until he has been reimbursed the amounts he is owed.
876. An heir is bound to make a return in regard to property whose loss results from his acts or omissions; he is not bound to do so if the loss results from superior force.
In either case, he shall return any indemnity paid to him for the loss of the property.
877. The co-partitioners may agree that property charged with a hypothec or other real right be returned in kind; the return is then made without prejudice to the holder of the right. The obligation resulting therefrom is, in the partition of the succession, borne by the heir who makes the return.
878. The fruits and revenues of the property given or bequeathed, if the property is returned in kind, or the interest on the amount returnable, are also returnable from the opening of the succession.
RETURN OF DEBTS
879. An heir coming to a partition shall return to the mass the debts he owes to the deceased; he shall also return the amounts he owes to his co-partitioners by reason of the indivision.
These debts are subject to return even if they are not due when partition takes place; they are not subject to return if the testator provided for release therefrom to take effect at the opening of the succession.
880. If the amount in capital and interest of the debt to be returned exceeds the value of the hereditary share of the heir who is bound to make the return, the heir remains indebted for the excess and shall pay it according to the terms and conditions attached to the debt.
881. If an heir bound to make a return has a claim of his own to make, even though it is not exigible at the time of partition, compensation is effected and he is bound to return only the balance of his debt.
Compensation is also effected if the claim exceeds the debt and the heir remains creditor for the excess.
882. A return is made by taking less.
The pre-taking effected by the coheirs or the imputation of the amount to the share of the heir may be set up against the personal creditors of the heir who is bound to make the return.
883. A return shall be made of the value of the debt in capital and interest at the time of partition.
A returnable debt bears interest from the death if it precedes the death and from the date when it arose if it arose after the death.
EFFECTS OF PARTITION
THE DECLARATORY EFFECT OF PARTITION
884. Partition is declaratory of ownership.
Each co-partitioner is deemed to have inherited, alone and directly, all the property included in his share or which devolves to him through any partial or complete partition. He is deemed to have owned the property from the death, and never to have owned the other property of the succession.
885. Any act the object of which is to terminate indivision between co-partitioners is equivalent to a partition, even though the act is described as a sale, an exchange, a transaction or otherwise.
886. Subject to the provisions concerning the administration of undivided property and the juridical relationships between an heir and his successors, acts performed by an heir in indivision and real rights granted by him in property which has not been allotted to him may not be set up against any other heirs in indivision who have not consented to them.
887. Acts validly made during indivision resulting from death retain their effect, regardless of which heir receives the property at partition.
Each heir is then deemed to have made the acts concerning the property which devolves to him.
888. The declaratory effect also applies to claims against third persons, to any assignment of these claims made during indivision by one of the coheirs and to any seizure in the hands of a third person of the claims by the creditors of one of the coheirs.
The setting up of the allotment of claims against debtors is subject to the rules of the Book on Obligations relating to assignment of claims.
WARRANTY OF CO-PARTITIONERS
889. Co-partitioners are warrantors towards each other only for the disturbances and evictions arising from a cause prior to the partition.
Nevertheless, each co-partitioner remains a warrantor for any eviction caused by his personal acts or omissions.
890. The insolvency of the debtor of a claim devolving to one of the co-partitioners gives rise to a warranty in the same manner as an eviction, if the insolvency occurred prior to partition.
891. The warranty does not arise if the eviction has been excepted by a stipulation in the act of partition; it terminates if the co-partitioner is evicted through his own fault.
892. Each co-partitioner is personally bound in proportion to his share to indemnify his co-partitioner for the loss which the eviction has caused him.
The loss is valued as on the day of the partition.
893. If one of the co-partitioners is insolvent, the indemnity for which he is bound shall be divided proportionately between the warrantee and all the solvent co-partitioners.
894. The action in warranty is prescribed by three years from eviction or discovery of the disturbance, or from partition if it is caused by the insolvency of a debtor of the succession.
NULLITY OF PARTITION
895. Partition, even partial, may be annulled for the same causes as contracts.
However, instead of an annulment, a supplementary or corrective partition may be effected in any case where it is to the advantage of the co-partitioners.
896. Mere omission of undivided property does not give rise to an action in nullity, but only to a supplementary partition.
897. In deciding whether lesion has occurred, the value of the property is considered as at the time of partition.
898. The defendant in an action in nullity of partition may, in all cases, terminate the action and prevent a new partition by offering and delivering to the plaintiff the supplement from the defendant’s share of the succession, in money or in kind.
Voici une vidéo indiquant les recours possibles contre un liquidateur qui ne respecte pas ses obligations :
* Lacombe Avocats offre plusieurs types de services inhérents à la liquidation d’une succession:
1) un service clé en main de liquidation de succession et effectue chacune des étapes pour vous à tarif forfaitaire: 5% la valeur brute de la succession;
2) Un service d’accompagnement aux liquidateurs, idéal pour des consultations occasionnelles: Bloc de 10h à 1350$, Bloc de 20h à 2400$, Bloc de 40h à 4200$;
3) Un service d’avis juridique écrit permettant de répondre à des questions spécifiques: dès 850$.
Contactez-nous pour de plus amples informations: Tel: 514-898-4029 Courriel: malacombe@LacombeAvocats.ca