Konstantina Daskalopoulou, LL.M
Summary: In this note we will examine the practical issues raised by the newly introduced provision of article 35 of Law 4786/2021 in the context of calling a minor child to the succession.
Inheritance law is a key branch of civil law, since it is called upon to determine the fate of a person's property after his or her death. It is no coincidence that one of the strongest motives for a person's economic activity is his certainty that, after his death, his property will pass to those closest to him, biologically or even emotionally. Despite the growing number of voices calling on the legislator to modernise inheritance law and to dispense with anachronistic concepts that provide excessive protection for the heir, often to the detriment of the use of the inherited property, the latter has recently introduced an 'interpretative' provision which creates more interpretative problems than it solves. Article 35 of Law 4786/2021, which wears the guise of an interpretative rule of the provision of Article 1912 of the CC, grants the heir who comes of age the right to renounce the inheritance which was imposed on him during his minority within one year of his coming of age, i.e., in some cases, up to 19 years after the death of the deceased. It is obvious that this regulation creates a significant gap in the rapid settlement of inheritance relations to the detriment of both the creditors of the inheritance and the general realisation of the assets of the inheritance.
2. The acceptance and renunciation of inheritance by a minor before the introduction of the provision of article 35 of Law No. 4786/2021
According to the provision of article 1847 CC, "the heir may renounce the inheritance within four months from the time he learned of the induction and the reason for it", while according to the provision of article 1850 para. Any renunciation of the inheritance after acceptance, whether express, implied or fictitious, is invalid. The aforementioned period of renunciation applies, inter alia, to the minor and also runs against him or her. In other words, the minor must also, within four months of becoming aware of the induction and the reason for it, accept or renounce the inheritance. The knowledge of the induction and its reason, in other words the knowledge of the fact that the person in question is called to the deceased's succession, will be judged in the person of the legal representative of the minor, i.e., as a rule, in the person of his parents.
Thus, assuming that A died on 10.1.2022, leaving an intestate estate to his daughter B, who has a minor son, C, B would, if she so wishes, have to renounce the inheritance by filing a declaration to that effect with the probate court by 10.5.2022. Thereafter, since, after B's disclaimer, A's minor grandson, C, is called to the succession, B, C's mother, in order to relieve her minor child of the burden of A's misappropriated property, should, in order to relieve her minor child of the burden of A's misappropriated property, declare the disclaimer of the inheritance in the name and on behalf of her minor child by 11.9.2022. For this purpose, B must first file an application before the locally competent Magistrate's Court in order to be allowed to submit a declaration of renunciation on behalf of her child (CC 1510, 1526, 1625, CCC 797). While this application is pending, the period for renunciation is suspended and restarts again with the publication of the relevant decision of the Magistrate's Court. On the other hand, if B decides to accept the inheritance on behalf of C, expressly or implicitly (e.g. if, after her own renunciation, she exploits a property of the estate), or if she simply fails to submit, within four months of her own renunciation, a declaration of acceptance or renunciation, then C is deemed to have accepted the inheritance fictitiously, but in any case with the so-called "benefit of the inventory". The latter means that the heir is liable only for the assets of the estate, and his personal property becomes immune from the creditors of the deceased. Thus, if, in the above example, the estate held by A at the time of his death consisted of two properties and minor C had acquired an apartment from his father D by virtue of a parental benefit, the creditors of the estate could, after accepting it, seek satisfaction of their claims by selling the two properties of the estate, but not the apartment acquired by C from his father by virtue of a parental benefit. In other words, the benefit of the inventory is a tool intended primarily to protect the individual property of the heir concerned from any aggressive action by the creditors of the estate, whose position is undoubtedly improved if a solvent heir takes the place of an insolvent debtor.
Within four months of the submission of the declaration of acceptance with the benefit of the inventory, the heir must make an inventory of the estate by submitting an application to the Magistrates' Court. If this procedure is omitted, the heir forfeits the benefit of this right, with the result that the heir's creditors may henceforth also seize the assets of the heir's personal property in order to satisfy their claims. By way of exception, especially in the case of minor heirs, the time limit for drawing up the inventory expires one year after they have reached the age of majority (CC 1912). In this way, the minor is protected from any inaction on the part of his parents in drawing up the inventory, which would result in the mixing of his personal property with that of the heir due to the disqualification of the beneficiary.
3. The renunciation of inheritance by the minor in the light of article 35 of Law 4786/2021
According to the provision of Art. 4786/2021 "In the true meaning of Article 1912 of the Civil Code, the heir who comes of age is entitled within the annual period of Article 1912 of the Civil Code to renounce the inheritance". The legislative objective of this newly introduced, interpretative regulation was to clarify 'in order to remove any doubt that, if the heir who comes of age does not lose the benefit of the inventory until one (1) year after he has come of age, he is entitled, within the annual period of Article 1912 CC, to renounce the inheritance'. In other words, according to the rationale of this provision, the minor heir may, until the expiry of one (1) year after reaching the age of majority, renounce the inheritance which has been transferred to him. It should be noted that the source of inspiration for this regulation was the relevant case law of the Council of State (Council of State 1884/2015 - 371/2014), which adopts the following reasoning. 1912 of the Civil Code can draw up an inventory in order to avoid being deprived of the benefit of the estate, he may, even more so, within the same period, renounce the inheritance. Thus, in one of the cases it was called upon to deal with, the Council of State (State Council of Greece, 2862/2013) held that the Greek State wrongly imposed a seizure on the assets of an heir (in this case a granddaughter), who had definitively acquired the relevant status following a fictitious acceptance during her minority, in order to satisfy a claim of the State against the deceased (i.e. (i.e. the heir's grandfather), because that heir renounced the inheritance within one year of her coming of age and, as a result, 'the appellant no longer had any rights or obligations under that inheritance'.
Correctly, the provision of Article 35 of Law No. 4786/2021 has already been characterised by legal theory and case law (Lamia Higher Regional Court 17/2021) as a pseudo-interpretative provision, that is to say, as a provision which does not, in fact, aim at interpreting Article 1912 of the Civil Code, but at introducing a new regulation which deviates from the provisions of the Civil Code, in the framework of which, in fact, it was not included. As a consequence, this regulation only covers cases of succession that arose after its entry into force, i.e. after 23.3.2021.
Approaching the true meaning of this provision, two interpretative versions seem possible. According to the first of these, during the period of the heir's minority, the period of renunciation is suspended. As a result, the legal representative of the minor, i.e., as a rule, his or her parent, cannot renounce or accept the inheritance for as long as the minor's minority lasts, a possibility that only the minor has after reaching the age of majority and for one (1) year after reaching the age of majority. Thus, in the example of A inheriting from his minor grandson C after B's disinheritance, assuming that C, at the time of his grandfather's death, is 10 years old, then B's mother will not be entitled to either disinherit or accept the inheritance as his representative for the next 8 years, until he reaches the age of majority, and C will be able, after he reaches the age of 18 and until he reaches the age of 19, to disinherit.
According to another interpretation, the parents of the minor heir may renounce or accept, expressly or implicitly, the minor's inheritance, and the minor, after reaching the age of majority and for one year, may reverse this situation by renouncing it. In this scenario, if the parents renounce, the minor's right to renounce the inheritance after he or she has reached the age of majority would have no practical significance. On the other hand, if the minor's parents expressly, implicitly or notionally accept the inheritance imposed on him, then the heir, once he has reached the age of majority, will be able to renounce and, consequently, to reverse the inheritance that has been finalised up to that point. Therefore, in the same example above, if C's mother leases out a property of her father's estate, she may be considered to have become involved in the inheritance and, in doing so, to have implicitly accepted A's inheritance in her capacity as C's legal representative. The 10-year-old C, after reaching the age of majority, will be able to overturn the hitherto established situation by renouncing the inheritance "definitively" transferred to him. It is argued, of course, that such behaviour, i.e. the renunciation of the now adult C after the implicit acceptance of A, would be contradictory and, in any event, would create uncertainty in the transactions. Therefore, in the latter view, the regulation of Art. 35 of Law no. 4786/2021 should be limited only to the case of fictitious acceptance of the inheritance, where there has been no prior conduct of the representative of the minor heir, which is contradicted by his subsequent renunciation, but only by the failure to submit a declaration of renunciation within the statutory period. Consequently, in the previous example of an implied disclaimer by B, C could not have disclaimed the inheritance which had passed to him after he came of age; the answer would have been different if B had failed to make a disclaimer on behalf of her son C within the four-month period after she had become aware of the fact that the inheritance had passed to C and the reason for it, in which case C, by fictitiously accepting the inheritance in question, which A had bequeathed, could have been released by renouncing it up to one year after he had reached the age of majority, without that conduct being regarded as inconsistent with B's mother's failure to renounce it on his behalf. This view identifies the difference between express or implied acceptance on the one hand and fictitious acceptance on the other - in the former, the heir's parent acts by expressly accepting, by making a statement to that effect or by indicating that acceptance by his conduct, in the second, the parent is inactive, or else fails to make a renunciation, and reduces the uncertainty created in transactions and, in particular, for the creditors of the estate, by the generalised possibility of a succession being overturned.
It should be noted that, to date, our jurisprudence has not attempted to interpret the contested provision with regard to whether, during the period of minority, legal representatives can accept/disaccept, a possibility which, in the most correct view, should not be excluded, and whether it covers all forms of acceptance.
It is worth noting, however, that even before the introduction of this provision, the main means of protection for a minor who became an heir as a result of a fictitious acceptance was the judicial annulment of the acceptance on the grounds that his parents were mistaken as to the existence of the time limit for renunciation or the significance of its unfulfilled expiry (CC 1857 § 4). An action to annul the acceptance of the inheritance shall be brought within six (6) months of the acceptance and, in the case of a continuing error, the action may be brought within six (6) months of the removal of the error. Often, case law has ruled that the element of material error is present in the person of the heir or his legal representatives regarding the provisions relating to the acceptance of the inheritance, even in the case where the mistaken impression is due to the provision of incorrect legal advice by a lawyer (Thessaloniki Court of Appeal 268/2020).
4. The status of the estate during the period of minority
The granting of the right of renunciation to the minor for a period of one year after his or her coming of age perpetuates the liquidation of the inheritance relations for a period which, in some cases, may even reach 19 years after the death of the deceased (in the borderline case where the heir is born a few months or days before death). For as long as the minor is entitled to renounce the inheritance temporarily transferred to him or her, the inheritance is considered to be inchoate, since the heir is not yet certain to accept it (Article 1 § 6 of Law 4182/2013). Through the institution of inchoate inheritance, the main aim is to remove the uncertainty as to the identity of the heir through a procedure that amounts to the ultimate solution to the recognition of the State as heir intestate. The appointed guardian of the estate represents the heir, whose identity is not yet certain, and administers the estate, with the obligation, inter alia, to take all conservative measures and to collect the claims of the estate, followed by a sharp deposit of the money (CC 1866). In this way, the interests of the creditors of the estate are safeguarded for the period during which the inheritance is in abeyance. Therefore, the latter are among the persons who are entitled to request the competent authority (Secretary General of the Decentralised Administration or the Ministry of Finance, as the case may be) to appoint a guardian, their legitimate interest being based, in this case, on the fact that, due to the uncertainty as to the identity of the heir, they are unable to pursue their claims against the estate in court. The creditors of the inheritance will therefore also be entitled in the case of the minor heir to request the appointment of a guardian of the school inheritance, whose term of office may reach 19 years, given the long period of acceptance introduced by the new provision in Article 35 of Law 4786/2021.
5. Instead of an epilogue
The reason for the adoption of the new provision of article 35 of Law 4786/2021 was the protection of the minor heir in the event of inaction on the part of his/her parents with regard to the renunciation of the inheritance, which results in the fictitious acceptance of the inheritance after four (4) months from the knowledge of the latter of the induction and the reason for it. That provision, which is wrongly associated by the legislature with the provision in Article 1912 of the Civil Code concerning the drawing up of an inventory within one year of the minor, albeit final, heir coming of age, reverses the system of disinheritance by minors, as established under the relevant provisions of the Civil Code, and causes a breach of the fundamental principles governing inheritance law. It remains to be seen how our courts will attempt to interpret this entirely new provision in a manner consistent with the system and the basic principles of the Civil Code.