Can you disinherit a child in Belgium after years of no contact?

Can you disinherit a child in Belgium after years of no contact?

Can you disinherit a child in Belgium after years of no contact? Isn't every child entitled to his so-called "legal reserve"?

Following the publication of an article in The Latest News in which a notary mentioned a little-known possibility of disinheriting children, the family law specialists at Bannister Lawyers are inundated with questions. Nuancing the article is necessary. The title is misleading and the opinion is questionable.

It is true that the Inheritance Act 2017 thoroughly revamped inheritance law and thoroughly reformed the rules on the legal reserve.

It is also true that the presence of children does not force the testator, when making his will, to limit himself to dispositions compatible with the legal reserve. The disregard of the legal reserve does not lead to the nullity of the will, but opens the possibility for reservatory heirs (including children) to ask for the abridgment.

However, it is not true that the disinherited children should not be notified of the unfolding of the estate. The notary's job is to inform all heirs and explain the scope of the will. The notary should bring legal certainty.

Yet the article seems to use the disregard of this obligation as an opportunity to arrive at a de factodisinheritance of children. As attorneys, we should alert you to the risks of such practices and emphasize the importance of thoroughly vetting proposed testamentary dispositions in the context of inheritance planning.

The legal reserve of descendants today is equal to half of the testator's estate, regardless of the number of children he or she had at the time of his or her death (Art. 4.145 BW).

A will with the purpose of disinheriting a child because there was no contact for years, by definition affects the legal reserve of the disinherited child. The law protects children of the testator and to this end reaches out to them with a so-called claim for reduction (Art. 4.151 BW). This claim will allow the disinherited child to claim his legally protected inheritance share.

As the notary correctly points out in the article, the reduction - read the claiming of the legal reserve - no longer occurs in kind, but rather in value (Art. 4.150 BW). It is thus somewhat true that a "disinherited child" does not become a co-owner of the real estate, but can only claim the value that his or her share represents.

The notary in the article recommends setting aside the value of the disinherited child's share, in order to transfer it afterwards if necessary when the reserve is claimed. This is a particularly dangerous reasoning and can affect you financially later. In practice, most discussions arise about the size - read: the value - of the reserved portion. The size depends on the valuation of, among other things, gifts during the testator's lifetime, the valuation of real estate, etc. This could possibly raise the question of the extent to which an indexation of the value does or does not impose itself. This is just a sampling of possible disputes that may arise.

If the disinherited child successfully disputes the amount or the value needs to be indexed if necessary, and you have set aside too few funds, you will still have to cough up the remainder.

Deliberate failure to notify the reservatory heirs of the opening of the estate is thus particularly risky. It is true that certain rights will accrue to the heirs concerned, but these rights are precarious, provisional and uncertain. The risk of abridgment continues to hang over the head of the heirs concerned like the weight of Damocles for a period of 30 years.

Misjudging the size of the abatement claim can hit heirs hard financially. A consequence the testator did not intend.

Can you disinherit a child with whom you have had no contact for years? Unsurprisingly, only "few people know about this possibility" because it is extremely risky and the notary must basically involve all reservatory heirs in handling the estate.

The article deserves thorough nuance and your estate planning deserves thorough preparation. The family law specialists at Bannister Lawyers caution you against such practices because - contrary to claims - the proposed technique will only create more discussion and less peace of mind.

If you have any further questions regarding your estate, please do not hesitate to contact us or leave a message on our website. Our attorneys will provide you with nuanced and clear advice with their expertise.