Inheritance dispute in Belgium: contesting a will, reduction and court-ordered division

A death brings not only grief but sometimes conflict as well. Siblings who cannot agree on the family home, a will that comes as a surprise, a gift nobody knew about, money that disappeared from an account shortly before the death: an inheritance dispute is among the most emotionally charged conflicts there are. This article explains how to contest a will in Belgium, what the return and reduction of gifts mean, how the estate is divided when the heirs cannot agree, and how you can avoid lengthy proceedings.

What are inheritance disputes typically about?

• the division of the assets, and above all of the house;
• the validity or interpretation of a will;
• gifts made during the deceased’s lifetime that encroach on the reserved portion (voorbehouden erfdeel / réserve héréditaire) or upset the equality between the heirs;
• the management of the assets while the estate remains undivided, such as rental income, costs and the use of the house;
• withdrawals and transfers, before or after the death, that nobody can explain.

First step: mapping out the estate

A sound analysis starts with the facts. The notary checks whether a will has been registered in the Central Register of Wills (Centraal Register van Testamenten / Registre central des testaments), gathers the information on the assets and debts, and draws up the deed of inheritance (akte van erfopvolging / acte d’hérédité) that allows the banks to release the funds. For a simple estate, a certificate of inheritance (attest van erfopvolging / certificat d’hérédité) issued by the Federal Public Service Finance may also suffice.

As an heir, ask to inspect the accounts and the documents. This quickly shows whether there are unexplained movements or gifts. If the management of the estate threatens to get out of hand, the court can, in urgent cases, appoint a sequestrator (sekwester / séquestre) to manage the assets provisionally. You can read how such urgent proceedings work in our article on summary proceedings (kort geding / référé).

Contesting a will

A will can be challenged on the following grounds, among others:

• Defects of form: a holographic will (eigenhandig testament / testament olographe) must be entirely handwritten, dated and signed by the testator. If any of these requirements is missing, the will is void.
• Lack of mental capacity: the testator had to be of sound mind at the time the will was made. Whoever disputes this must prove it, for example with medical records and witness statements. If the testator was under judicial protection, the authorisation of the justice of the peace (vrederechter / juge de paix) may have been required for the will.
• Defects of consent: mistake, fraud or duress. Think of a testator who, through manipulation or pressure by someone close, was led to make a will that does not reflect his or her true wishes.

Even a valid will cannot set aside the reserved portion. Together, the children are always entitled to half of the estate, regardless of how many there are. That half is calculated on the assets at the time of death, after deduction of the debts and with the gifts added back.

In principle, the surviving spouse also has a reserved portion: the usufruct of half of the estate and, in any event, of the family home and its household contents. More on statutory succession and the reserved portion.

Gifts: return to the estate and reduction

Return to the estate. A gift to a statutory heir, such as a child, is in principle treated as an advance on that heir’s share. On division, it must be brought back into the estate (inbreng / rapport), unless the donor expressly stipulated that the gift was made over and above the heir’s share (bij vooruitmaking en buiten deel / par préciput et hors part). Since the 2018 reform of inheritance law, now contained in Book 4 of the Civil Code, gifts are in principle returned in value: as a rule, the gift is valued on the day it was made and indexed up to the day of death.

Reduction. If the gifts and legacies together exceed the disposable portion (beschikbaar deel / quotité disponible), the heirs entitled to a reserved portion can claim reduction (inkorting / réduction). This too takes place, in principle, in value: the recipient pays the difference in money and may, in principle, keep the gifted asset.

Hidden gifts must be proven. A large transfer to an heir, a payment towards his or her home or a sale at an unrealistically low price may point to a gift. Whoever relies on this must prove it with bank statements, deeds and other documents.

An heir who, in bad faith, withholds information or makes false statements about the composition or size of the estate in order to gain an advantage (heling / recel successoral; Article 4.48 of the Civil Code) faces a severe sanction: that heir loses any share in the concealed assets or values and can no longer renounce the estate.

Division: by agreement or through the court

No one can be forced to remain in undivided ownership (onverdeeldheid / indivision). Each heir can therefore, in principle, request the division of the estate. If all the heirs agree, they can arrange the division amicably.

If the estate includes real property, a notarial deed is required so that the division can be registered and relied on against third parties. If an heir is a minor or a protected person, the involvement of the justice of the peace is as a rule required for an amicable division.

If no agreement can be reached, any heir can apply to the family court (familierechtbank / tribunal de la famille) for judicial liquidation and division (gerechtelijke vereffening-verdeling / liquidation-partage judiciaire). The court appoints a notary-liquidator, who conducts the proceedings, draws up an inventory where necessary, hears the parties and prepares a statement of liquidation. Disputes that the notary cannot resolve are referred to the court.

If an asset cannot easily be divided, such as a house, it may ultimately be sold, unless one heir takes it over with the agreement of the others. Such proceedings take time and cost money. Good preparation and a realistic strategy make all the difference.

Resolving an inheritance dispute amicably

An agreement is usually quicker and cheaper than litigation, and it preserves family ties. An accredited mediator can help the heirs find a balanced solution. The family court also has an amicable settlement chamber (kamer voor minnelijke schikking / chambre de règlement à l’amiable), where a judge helps the parties reach an agreement. An agreement reached can be approved (homologated) by the court, which makes it enforceable.

If you want to prevent disputes, you can plan during your lifetime. Since 2018, parents and all their children can, for example, conclude a global inheritance agreement (globale erfovereenkomst / pacte successoral global) by notarial deed, in which they accept the gifts already made as balanced. A clear will and precise arrangements for every gift also prevent many disputes later on.

Frequently asked questions

My brother lives in our parents’ house rent-free. Does that have to continue?

Not necessarily. An heir who has sole use of an undivided asset may owe compensation to the other heirs, known as an occupation indemnity. In addition, any heir can request the division of the estate.

What if an heir refuses to cooperate?

Any other heir can then apply for judicial liquidation and division. The proceedings continue, even without that heir’s cooperation.

Do I have to give back a gift I received from my parents?

As a rule, you do not have to return the gifted asset itself. On division, a gift to a child is offset in value against that child’s share, unless it was made over and above the share. If the gift is worth more than your share, or encroaches on the reserved portion of the other heirs, you may, however, owe a sum of money.

Can I renounce the estate to avoid the conflict?

Yes, by making a declaration before a notary. Anyone who renounces gives up the estate, pays none of its debts and no inheritance tax on what is renounced, but also loses every right to the assets. Your own children may then inherit in your place (plaatsvervulling / représentation), so the conflict shifts to them. Have the consequences assessed carefully first, particularly when the estate is valuable.

Inheritance dispute lawyer in Brussels: Novex Advocaten can help

We act for heirs and legatees, analyse the will, the gifts and the accounts, and look for an amicable solution first. If proceedings are unavoidable, we defend your interests before the family court and with the notary-liquidator. You can consult us in Dutch, French, English and Arabic.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.